[Congressional Record: February 11, 2008 (Senate)]
[Page S827-S844]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

[[Page S827]]
                      FISA AMENDMENTS ACT OF 2007

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will resume consideration of S. 2248, which the clerk will 
  The bill clerk read as follows:

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


       Rockefeller-Bond amendment No. 3911, in the nature of a 
       Whitehouse amendment No. 3920 (to amendment No. 3911), to 
     provide procedures for compliance reviews.
       Feingold amendment No. 3979 (to amendment No. 3911), to 
     provide safeguards for communications involving persons 
     inside the United States.
       Feingold-Dodd amendment No. 3912 (to amendment No. 3911), 
     to modify the requirements for certifications made prior to 
     the initiation of certain acquisitions.
       Dodd amendment No. 3907 (to amendment No. 3911), to strike 
     the provisions providing immunity from civil liability to 
     electronic communication service providers for certain 
     assistance provided to the Government.
       Bond-Rockefeller modified amendment No. 3938 (to amendment 
     No. 3911), to include prohibitions on the international 
     proliferation of weapons of mass destruction in the Foreign 
     Intelligence Surveillance Act of 1978.
       Feinstein amendment No. 3910 (to amendment No. 3911), to 
     provide a statement of the exclusive means by which 
     electronic surveillance and interception of certain 
     communications may be conducted.
       Feinstein amendment No. 3919 (to amendment No. 3911), to 
     provide for the review of certifications by the Foreign 
     Intelligence Surveillance Court.
       Specter-Whitehouse amendment No. 3927 (to amendment No. 
     3911), to provide for the substitution of the United States 
     in certain civil actions.

  Mr. KYL. Mr. President, today we are debating the amendments to the 
Foreign Intelligence Surveillance Act. I am going to say a few words 
about why Congress ought to provide legal relief to those private 
entities that have aided the United States in our war against al-Qaida 
and, in particular, one of the amendments that will be voted on 
  I begin by quoting a passage in an opinion by Justice Cardozo, from 
the time when he was the chief judge of the New York Court of Appeals. 
In the 1928 decision Baggington v. Yellow Taxi Corp., this is what 
Justice Cardozo had to say about the legal immunities that should be 
provided to private parties that assist law enforcement efforts:

       The rule that private citizens acting in good faith to 
     assist law enforcement are immune from suit ensures that the 
     citizenry may be called upon to enforce the justice of the 
     State, not faintly and with lagging steps, but honestly and 
     bravely and with whatever implements and facilities are 
     convenient and at hand.

  We need to encourage citizen involvement in our efforts against al-
Qaida. We know that good intelligence is the best way to win the war 
against those terrorists, and if we want to monitor al-Qaida, we need 
access to the information which is available through the 
telecommunications companies.
  We asked them for help, and they provided that help at a critical 
time, after 9/11. We need to know, for example, whether al-Qaida 
terrorists are planning other attacks against us. When we ask parties 
to assist us, such as those telecommunications companies that assisted 
us after 9/11, we want them to reply not faintly and with lagging steps 
but, rather, in Justice Cardozo's words: We want them to answer the 
call honestly and bravely and with whatever implements and facilities 
are conveniently at hand.
  In today's technological world, what that means is that when we ask 
these telecommunications companies for their support, they provide the 
incredibly intricate and advanced technology at their disposal to 
assist us in understanding what communications al-Qaida is having with 
each other.
  Now, tomorrow we are going to be voting on some amendments which, in 
my view, weaken and in one case would actually strip the liability 
protections the Intelligence Committee bill provides to such private 
parties. I think these amendments are unwise.
  Certainly, I urge my colleagues to reject them. Let me focus on one 
of them today, one that relates to a subject called substitution. The 
idea is that while it would be unfair to hold these telecommunications 
companies responsible for coming to the aid of the Government in its 
time of need, that they should be immune from liability, that we should 
somehow substitute the U.S. Government in their place and that would 
somehow balance the equities here of having the matter litigated and 
yet protecting the telecommunication companies.
  There are several reasons why this simply does not work. In the first 
place, it would still be required to reveal the identity of the company 
involved. Part of this entire matter is protecting the identity of the 
company so it does not lose business around the world and so it is not 
subject to the kind of abuse that would otherwise occur.
  In addition to that, full discovery could be conducted. In other 
words, depositions could be taken, interrogatories could be served. In 
every respect, the company is not protected from the legal process, it 
is simply not liable at the end of the day; it would only be the 
Government that would be liable.
  But the individuals of the company and the company itself would still 
be subject to all the rigors of litigation which we are trying to 
protect them from. The litigation does not go away. In addition to 
that, a method has been set up to litigate this before the FISA Court, 
which misunderstands what the FISA Court is. The FISA Court is not like 
the Ninth Circuit Court of Appeals. The FISA Court is individual judges 
called upon primarily to issue warrants that permit the Government to 
engage in its intelligence operations.
  So you do not have a court sitting the way you do in a typical 
Federal district court or a circuit court. This FISA Court would 
presumably have to litigate whether the companies are entitled to 
substitution, so it is not a free substantiation but, rather, if they 
can prove that they are entitled to the substitution.
  Finally, the point of having this liability protection for the 
Government's purpose is first and foremost because of the need to 
protect its sources and methods of intelligence collection from the 
enemy or from the public at large. Of course, if you still have the 
litigation ongoing, if you still have the process, it is just that 
Party A is liable rather than Party B.
  You still have the threat that sources and methods could be 
compromised, information relating to the activity could be disclosed, 
as it has in the current debate. We should remind ourselves that what 
we are debating publicly is a system of collection that has been, to 
some extent, defined by public discussion of matters that were and 
should have been totally classified.
  We have given the enemy a great deal of information about how to 
avoid the kind of collection that is vital to our efforts. That is the 
kind of thing we are trying to prevent. So substitution, simply 
substituting the Government as a party for the phone companies does not 
solve that problem either. The bottom line is, that as with these other 
amendments, the so-called substitution amendment is not a good 
amendment, it should be rejected, and I hope at the end of the day we 
will have been able to vote it down.
  Let me conclude by repeating some of the things the Statement of 
Administrative Policy stated in quoting the Intelligence Committee's 
conclusions in its report.
  Al-Qaida has not ceased to exist in years since the September 11 
attacks. It still exists and it still seeks the wholesale murder of 
American civilians. We know how devastating such attacks can be. And we 
know that once an attack is underway--once a plane has been hijacked, 
or a bomb has been assembled--it is too late. We need to stop al-Qaida 
attacks before they are executed, before they are being carried out. We 
need to act at a time when such attacks are still being planned or when 
al-Qaida terrorists are still being prepared.
  To gather this type of intelligence--the intelligence needed to stop 
a terrorist attack--we will need the assistance of private parties. 
Information about al-Qaida's communications, its travel, and other 
activities often is in the hands of private parties. If we want to 
monitor al-Qaida we will need access to information. And when 
telecommunications companies or others are asked for their help in 
tracking, for example, an al-Qaida cell that may be operating in this 
country, we do not want those parties to reply ``faintly and with 
lagging steps.'' Rather, in

[[Page S828]]

Justice Cardozo's words, we want them to answer the call for assistance 
``honestly and bravely and with whatever implements and facilities are 
convenient at hand.''
  The Senate Intelligence Committee bill contains provisions that 
ensure that results that future requests for assistance will be met 
``honestly and bravely,'' rather than with fear of becoming embroiled 
in litigation. Tomorrow the Senate will be voting on amendments that 
seek to strip out or weaken the legal protections that the Intelligence 
Committee bill provides to private parties that assist antiterrorism 
investigations. These amendments are unwise, and I would strongly urge 
my colleagues to reject them.
  As the Statement of Administration Policy on the Judiciary Committee 
bill notes, the failure to provide strong legal protections to private 
parties would undermine U.S. efforts to respond to and stop al-Qaida in 
two ways: first, it allows the continuation of litigation that has 
already resulted in leaks that have done serious damage to U.S. 
counterterrorism efforts. This litigation is inherently and inevitably 
damaging to U.S. efforts to monitor al-Qaida's communications. As one 
Intelligence Committee aide aptly characterized the situation, allowing 
this litigation to go forward would be the equivalent of allowing the 
legality of the Enigma code-breaking system to be litigated during 
World War II.
  In addition, the failure to provide protection to third parties who 
have assisted the United States would undermine the willingness of such 
parties to cooperate with the Government in the future. And such 
cooperation is essential to U.S. efforts to track al-Qaida. As the SAP 
on this bill further explains:
  In contrast to the Senate Intelligence Committee bill, the Senate 
Judiciary Committee substitute would not protect electronic 
communication service providers who are alleged to have assisted the 
Government with communications intelligence activities in the aftermath 
of September 11th from potentially debilitating lawsuits. Providing 
liability protection to these companies is a just result. In its 
Conference Report, the Senate Intelligence Committee ``concluded that 
the providers . . . had a good faith basis for responding to the 
requests for assistance they received.''
  The Committee further recognized that ``the Intelligence Community 
cannot obtain the intelligence it needs without assistance from these 
companies.'' Companies in the future may be less willing to assist the 
Government if they face the threat of private lawsuits each time they 
are alleged to have provided assistance.
  The Senate Intelligence Committee concluded that: ``The possible 
reduction in intelligence that might result from this delay is simply 
unacceptable for the safety of our Nation.'' Allowing continued 
litigation also risks the disclosure of highly classified information 
regarding intelligence sources and methods. In addition to providing an 
advantage to our adversaries by revealing sources and methods during 
the course of litigation, the potential disclosure of classified 
information puts both the facilities and personnel of electronic 
communication service providers and our country's continued ability to 
protect our homeland at risk. It is imperative that Congress provide 
liability protection to those who cooperated with this country in its 
hour of need.

  The ramifications of the Judiciary Committee's decision to afford no 
relief to private parties that cooperated in good faith with the U.S. 
Government in the immediate aftermath of the attacks of September 11 
could extend well beyond the particular issues and activities that have 
been of primary interest and concern to the Committee. The Intelligence 
Community, as well as law enforcement and homeland security agencies, 
continue to rely on the voluntary cooperation and assistance of private 
parties. A decision by the Senate to abandon those who may have 
provided assistance after September 11 will invariably be noted by 
those who may someday be called upon again to help the Nation.
  Many members of the Senate Majority insist that there be stringent 
congressional oversight of these intelligence-collection programs. No 
one disputes that point. All agree that we need oversight over the 
intelligence agencies. That is why this Congress and previous 
Congresses have agreed on a bipartisan basis to create robust oversight 
of U.S. intelligence gathering, even when such intelligence gathering 
is directed at foreign targets. The agencies executing wiretaps and 
conducting other surveillance must report their activities to Congress 
and to others, so that opportunities for domestic political abuse of 
these authorities are eliminated.
  I conclude by asking: what is the Senate's goal? Do we want to allow 
our intelligence agencies to be able to obtain the assistance of 
telecommunications companies and other private parties when those 
agencies are investigating al-Qaida? If so, then we need to create a 
legal environment in which those companies will be willing to 
cooperate--an environment in which their patriotic desire to assist the 
United States does not conflict with their duties to their shareholders 
to avoid expensive litigation.
  We need to write the laws to ensure against the domestic political 
abuse of surveillance authority, and we have done that. The question 
now is whether we want to give our intelligence agents the tools that 
they need to track al-Qaida. We should do so, and in order to do so, we 
must defeat amendments that would weaken the bill's legal protections 
for private parties who assist the government's efforts against al-
  To conclude, we obviously want to write our laws to ensure that in 
intelligence collection, and any kind of this activity, the rights of 
American citizens are fully protected, that we protect against domestic 
political abuse of surveillance authority. We have done that.
  The question now is whether we want to give our intelligence agencies 
the tools they need to track al-Qaida and other terrorists. We should 
do so, and in order to do so, we have to defeat amendments that would 
weaken the Intelligence Committee bill, which lays out a good process 
for balancing the equities involved and ensuring that we have provided 
not only the Government agencies what they need to do the job we have 
asked them to do but also to protect the private parties whom the 
Government has asked to volunteer to help and which up to now they have 
been able to do because they felt that what they did would be protected 
from liability.
  Without that liability protection, the kind of negative results would 
occur which I have identified.
   So I hope that when this substantiation amendment comes before us, 
we will vote it down and that we will also reject the other amendments 
which are designed to weaken the Intelligence Committee FISA bill.
  Mr. HATCH. Would the Senator from California yield for a unanimous 
consent request?
  Mrs. FEINSTEIN. I will yield.
  Mr. HATCH. I ask unanimous consent that I be permitted to speak 
immediately following the Senator from California.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 

                           Amendment No. 3910

  Mrs. FEINSTEIN. Mr. President, I rise to speak on two of the 
amendments in the list of amendments to be voted on tomorrow. The first 
is amendment 3910. That relates to making the Foreign Intelligence 
Surveillance Act the exclusive authority for conducting electronic 
surveillance. This is cosponsored by Chairman Rockefeller, Chairman 
Leahy, by Senators Nelson of Florida, Whitehouse, Wyden, Hagel, 
Menendez, Snowe, Specter, Salazar, and I ask unanimous consent to add 
Senator Cantwell to that list.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. FEINSTEIN. For the information of my colleagues, I do not intend 
to modify this amendment, and so I will be seeking a vote on the 
amendment as it is currently drafted.
  I voted in support of the FISA bill as a member of the Intelligence 
Committee. But I made clear in that committee, as well as in statements 
called additional views, which are attached to the report of the bill, 
that I coauthored with Senators Snowe and Hagel that changes were 
  In the Judiciary Committee, we were able to secure improvements to 
the Intelligence Committee's bill that I believed were needed. Most 

[[Page S829]]

the Judiciary Committee added strong exclusivity language similar to 
the amendment I have now before the Senate.
  Unfortunately, the Judiciary package was not adopted on the floor. So 
the amendments we present are designed to restore the exclusivity 
language I believe is vital to FISA and goes to the heart of the debate 
on this bill, which is whether this President or any other President 
must follow the law.
  With strong exclusivity language, which is what we try to add, we 
establish a legislative record that the language and the intent of the 
Congress compels a President now and in the future to conduct 
electronic surveillance of Americans for foreign intelligence purposes 
within the parameters and confines of this legislation.
  The amendment makes the following important changes to the bill:
  First, it reinforces the existing FISA exclusivity language in title 
18 of the U.S. Code by restating what has been true in the statute 
since 1978--that FISA is the exclusive means for conducting electronic 
surveillance, period. So legislative intent is clear.
  Second, the amendment answers the so-called AUMF; that is, the 
authorization to use military force loophole used by the President to 
circumvent FISA.
  What is that? The administration has argued that the authorization of 
military force against al-Qaida and the Taliban implicitly authorized 
warrantless electronic surveillance. This is an argument embroidered on 
fiction, made up from nothing.
  Nonetheless, the executive has chosen to use it.
  Under our amendment, it will be clear that only an express statutory 
authorization for electronic surveillance in future legislation shall 
constitute an additional authority outside of FISA. In other words, if 
you are going to conduct surveillance outside of FISA, there has to be 
a law that specifically enables you to do so. Otherwise, you stay 
within FISA.
  Third, the amendment makes a change to the penalty section of FISA. 
Currently, FISA says it is a criminal penalty to conduct electronic 
surveillance except as authorized by statute. This amendment specifies 
that it is a criminal penalty to conduct electronic surveillance except 
as authorized by FISA or another express statutory authorization. This 
means that future surveillance conducted under an AUMF or other general 
legislation would bring on a criminal penalty. So follow the law or 
else there is a criminal penalty.
  Fourth, the amendment requires more clarity in a certification the 
Government provides to a telecommunications company when it requests 
assistance for surveillance and there is no court order. Henceforth, 
the Government will be required to specify the specific statute upon 
which the authority rests for a request for assistance.
  I believe our amendment will strengthen the exclusivity of FISA. I 
believe it is critical. Without this strong language, we run the risk 
that there will be future violations of FISA, just as there have been 
present violations of FISA. History tells us that this is very 
  Let me go into the history for a minute because it is interesting how 
eerily similar events of the past were to events of today. Let me tell 
this body a little bit about something called Operation Shamrock.
  In its landmark 1976 report, the Church Committee disclosed, among 
other abuses, the existence of an Operation titled ``Shamrock.'' What 
was Shamrock? It was a program run by the NSA and its predecessor 
organizations from August of 1945 until May of 1975. That is, for 30 
years, the Government received copies of millions of international 
telegrams that were sent to, from, or transiting the United States. The 
telegrams were provided by major communications companies of the day--
RCA Global and ITT World Communications--without a warrant and in 
secret. A third company, Western Union International, provided a lower 
level of assistance as well.
  It is estimated that at the height of the program, approximately 
150,000 communications per month were reviewed by NSA analysts. So 
telegrams coming into the country and going out of the country all went 
through NSA.
  According to the Church Committee report, the companies agreed to 
participate in the program, despite warnings from their lawyers, 
provided they received the personal assurance of the Attorney General 
and later the President that they would be protected from lawsuit.
  The NSA analyzed the communications of Americans in these telegrams 
and disseminated intelligence from these communications in its 
  If all of this history sounds eerily familiar, it should. The 
parallels between Shamrock and the Terrorist Surveillance Program are 
uncanny, especially when one considers that FISA was passed in 1978 as 
a direct result of the Church Committee's report. Yet here we are, same 
place, again today.
  Almost immediately after the Church Committee's report was unveiled, 
Congress went to work on what is now the Foreign Intelligence 
Surveillance Act to put an end to warrantless surveillance of 
Americans. FISA states that when you target surveillance on Americans, 
you need a court order, period.
  Some of my colleagues argue that FISA was not the exclusive authority 
since 1978 and that the President has inherent article II authorities 
to go around FISA.
  On the first point, the legislative history and congressional intent 
from 1978 is clear: Congress clearly intended for FISA to be the 
exclusive authority under which the executive branch may conduct 
electronic surveillance.
  Let me read what the Congress wrote in 1978 in report language 
accompanying the bill:

       [d]espite any inherent power of the President--

  That means despite any article II authority--

     to authorize warrantless electronic surveillance in the 
     absence of legislation, by this bill and chapter 119 of title 
     18, Congress will have legislated with regard to electronic 
     surveillance in the United States, that legislation with its 
     procedures and safeguards, prohibits the President, 
     notwithstanding any inherent powers, from violating the terms 
     of that legislation.

  That is the report language written in 1978.
  The congressional debate also took on the Supreme Court's decision in 
the Keith case in which the Court ruled that since Congress hadn't 
enacted legislation in this area at that time, then it simply left 
the Presidential powers where it found them. Right? Wrong. In response 
to the Court's decision, the 1978 congressional report stated the 

       The Foreign Intelligence Surveillance Act, however, does 
     not simply leave Presidential powers where it finds them. To 
     the contrary, this bill would substitute a clear legislative 
     authorization pursuant to statutory, not constitutional, 

  Clear. Distinct. Definitive.
  It is important that the record here today clearly reiterates that in 
1978 there was an unambiguous position that FISA was the exclusive 
authority under which electronic surveillance of Americans could be 
conducted. This was in the bill language and the report language as 
passed by the 95th Congress.
  But FISA's exclusivity was recognized not just by the Congress. The 
executive branch also agreed that FISA was controlling and that any and 
all electronic surveillance would be conducted under the law.
  President Carter at the time issued a signing statement to the bill. 
This wasn't a signing statement like we see today. It was not used to 
express the President's disagreement with the law or his intent not to 
follow part of the law. Rather, President Carter used his statement to 
explain his understanding of what the law meant.
  Here it is in direct quote:

       The bill requires, for the first time, a prior judicial 
     warrant for all electronic surveillance for foreign 
     intelligence or counterintelligence purposes in the United 
     States in which communications of U.S. persons might be 

  Again, clear, distinct, definitive.
  By issuing this statement, President Carter and the executive branch 
affirmed not only Congress's intent to limit when the executive branch 
could conduct surveillance, but it ratified that Congress had the power 
to define the parameters of executive authority in this area.
  So there was an abuse--Operation Shamrock--similar to this incident 
with the telecoms today, followed by a clear act of Congress in passing 

[[Page S830]]

followed by a clear statement of the executive affirming the meaning of 
FISA. Together, these acts were taken to end the exercise of unchecked 
executive authority. Here we are, back in 1978 today.
  Despite the 1978 language and Congress's clear willingness to amend 
FISA to make it apply to the new war against terrorism early in its 
tenure, the Bush administration decided that it would act outside the 
law. This was a conscious decision. Not one part of FISA was ever tried 
to be put under the auspices of the FISA law and the Foreign 
Intelligence Surveillance Court. That was both wrong and unnecessary.
  To justify this mistake, the Department of Justice developed a new 
convoluted argument that Congress had authorized the President to go 
around FISA by passing the authorization for use of military force 
against al-Qaida and the Taliban. Can anybody really believe that? 
This, too, was wrong. I was there. I sat in most meetings. I defy 
anybody in this body to come forward and tell me privately or publicly 
that going around FISA was ever contemplated by the AUMF. In fact, it 
was not. It was never even considered.
  Apparently not confident of its AUMF argument, the administration 
decided to also assert a broad theory of Executive power, premised on 
Article II of the Constitution. These are the powers of the President.
  Under this argument, the Bush administration asserted that despite 
congressional action, the President has the authority to act 
unilaterally and outside of the law if he so chooses, simply by virtue 
of his role as Commander in Chief. While Presidents throughout history 
all tried to expand their power, this new twist would place the 
President of the United States outside the law. Taken to its logical 
conclusion, if the Congress cannot enact statutes that the President 
must follow, then he is above the law. I disagree with that position. I 
do not believe anyone can be above the rule of law. But I am not the 
only one.
  Justice Jackson described it best in his Youngstown opinion. In 1952, 
against the backdrop of the Korean war, the Supreme Court addressed the 
issue of when congressional and executive authorities collide in the 
Youngstown Sheet and Tube Company v. Sawyer. The question presented in 
Youngstown was whether President Truman was acting within his 
constitutional powers when he issued an order directing the Secretary 
of Commerce to take possession of and operate most of the Nation's 
steel mills. In other words, the Government was going to take over the 
steel mills.
  The Truman administration argued that the President was acting within 
his inherent power as Commander in Chief in seizing the steel mills, 
since a proposed strike by steelworkers would have limited the Nation's 
ability to produce the weapons needed for the Korean war.
  The Bush administration today is making the very same argument. It is 
asserting that the President's constitutional authorities as Commander 
in Chief trump the law. However, in a 6-to-3 decision in Youngstown, 
the Supreme Court held that President Truman exceeded his 
constitutional authority. Justice Jackson authored the famous 
concurring opinion, setting forth the three zones into which 
Presidential actions fall.

  The first zone: When the President acts consistently with the will of 
Congress, the President's power is at its greatest.
  Two: When the President acts in an area in which Congress has not 
expressed itself, there is an open question as to the scope of 
congressional and Presidential authority. So we know the first two.
  The third zone: When the President acts in contravention of the will 
of Congress, Presidential power is at its lowest.
  That is where we are right now. Clearly, President Bush acted outside 
of the scope of the law. According to Youngstown, his power is at its 
lowest. The only way to test that is to bring a case before the Supreme 
Court again. But the fact the Court ruled against Truman in a situation 
of war--in a situation where a strike would have shut down the steel 
mills, when Truman tried to use his commander in chief authority to 
seize the steel mills, the Court said: You cannot do that, and then it 
went on to define the different zones of Presidential authority. It is 
a big opinion, and it is one which is often quoted in our judicial 
hearings on Supreme Court nominees.
  Justice Jackson also wrote:

       When the President takes measures incompatible with the 
     expressed or implied will of Congress--

  Which is this case--

     his power is at its lowest ebb, for then he can rely only on 
     his constitutional powers, minus any constitutional powers of 
     Congress over the matter.

  Now, this is key, this last part: Although Justice Jackson's opinion 
was not binding at the time, the Supreme Court has since adopted it as 
a touchstone for understanding the dimensions of Presidential power. 
The Youngstown case is as important today as it was then.
  That is why I am proposing this amendment. I want to make it crystal 
clear, and my cosponsors want to make it crystal clear, that Congress 
has acted to prohibit electronic surveillance on U.S. persons for 
foreign intelligence purposes outside of FISA, and this amendment does 
  One day this issue is going to be before the Court, and on that day I 
want the Justices to be able to go back and see the legislative intent; 
the legislative intent as it was in the Judiciary Committee, the 
legislative intent as it is here on the floor, and the legislative 
intent of this amendment to strengthen the exclusivity parts of FISA.
  What we have here is a case of history repeating itself: abuse 
followed by a clear statement from Congress, then another abuse with 
the Terrorist Surveillance Program. It too should be followed by a 
clear statement from Congress.
  Now is the time for the Congress of the United States to reassert its 
constitutional authorities and pass a law that clearly and 
unambiguously prohibits warrantless surveillance outside of FISA. Now 
is the time to say that no President, now or in the future, can operate 
outside of this law.
  I mentioned that in 2001 the President chose to go outside of FISA. 
In January of 2007, after the Intelligence Committee learned about the 
full dimensions of the law, guess what. The executive branch brought it 
to the Court and bit by bit put the program under the Foreign 
Intelligence Surveillance Court. Today, the entire program is within 
the parameters of the Foreign Intelligence Surveillance Court.
  What I am saying to this body is it was a terrible misjudgment not to 
do so in 2001, because I believe the Foreign Intelligence Surveillance 
Court would have given permission to the program. So I believe this 
amendment is absolutely crucial, and I very much hope it will pass 
  Now, if I may, I wish to speak in support of my amendment to replace 
the full immunity in the underlying bill with a system of FISA Court 
review. This is amendment No. 3919. I am joined in this amendment by 
Senators Bill Nelson, Ben Cardin, and Ken Salazar. I ask unanimous 
consent to add Senator Whitehouse as a cosponsor, and I know that 
Senator Whitehouse wishes to come to the floor to speak to this 
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
  Mrs. FEINSTEIN. This amendment is about allowing a court to review 
the request for immunity for the telecommunications companies, but in a 
way that is carefully tailored to meet this unique set of suits. It 
allows for the good faith defense if the companies reasonably believed 
the assistance they provided the Government was legal.
  As Members know, the FISA Court comprises 11 Federal district court 
judges appointed by the Chief Justice. It has heard thousands of 
applications for FISA warrants and has recently made determinations on 
the executive's procedures under the Protect America Act. In January of 
2007, the Court put the entire Terrorist Surveillance Program under its 
jurisdiction. Its judges and its staff are experts in surveillance law, 
and the Court protects national security secrets.
  Let me describe the amendment briefly. Under this amendment, the FISA 
Court is directed to conduct a tailored, three-part review.
  Part one: The FISA Court will determine whether a telecommunications 
company actually provided the assistance to the Federal Government as

[[Page S831]]

part of the Terrorist Surveillance Program. If not, those cases are 
dismissed. So if you didn't give help and you have litigation pending, 
the case is dismissed, period.
  Second: If assistance was provided, the Court would review the 
request letters sent from the Government to the companies every 30 to 
45 days. The FISA Court would then have to determine whether these 
letters, in fact, met the requirements of the applicable law. There is 
law on this. It is part of FISA. It is 18 U.S.C. 2511. If they met the 
requirements, the cases against the companies are dismissed.
  Now, let me tell my colleagues what the law says. Sections 
2511(2)(a)(ii)(A) and (ii)(B) state that companies are allowed to 
provide assistance to the Government if they receive a certification in 
writing by a specified person (usually the Attorney General or a law 
enforcement officer specifically designated by the Attorney General).
  The certification is required to state that no warrant or court order 
is required by law, that all statutory requirements have been met, and 
that the specified assistance is required by the Government. Now that 
is what the law says. It is short, it is succinct, it is to the point.
  The question is: Do the specifics of the actual documents requesting 
assistance meet the letter of this law with respect to contents and 
timing. If they did, the companies would be shielded from lawsuits. 
Why? Because that is the law. That is what the law says. No one would 
want us not to follow the law.
  Finally, in any case where the defendant company did provide 
assistance but did not have a certification that complied with the 
requirements I have read, the FISA Court would assess whether the 
company acted in good faith, as has been provided under common law.
  There are several cases of common law that describe what is called 
the good faith defense--the U.S. v. Barker, Smith v. Nixon, Halperin v. 
Kissinger, and Jacobson v. Bell Telephone. So there is common law on 
the subject.
  There would be at least three lines of defense for defendant 
companies in this situation. They could argue that the assistance was 
lawful under the statutes other than 18 U.S.C. 2511--the law I have 
cited; that they believed, perhaps wrongly, that the letters from the 
Government were lawful certifications; or that complying with the 
request for assistance was lawful because the President had article II 
authority to conduct this surveillance. They could make their 
arguments, and the plaintiffs, against the defendant companies, could 
make their arguments.

  In this case, the FISA Court would then determine whether the company 
acted in good faith and whether it had an objectively reasonable belief 
that compliance with the Government's written request or directives for 
assistance were lawful. If the Court finds that the company met this 
standard, the lawsuits would be dismissed.
  I believe this very narrow three-part test strikes the right balance 
between the competing interests in the immunity debate. This amendment 
neither dismisses the cases wholesale, nor does it allow the cases to 
proceed if the companies had an objectively reasonable belief that 
their compliance was lawful.
  Let me point out for a moment some of the history relevant to this 
  First: Requests for assistance from the Government to the telecoms 
came about 1 month following the worst terrorist attack against our 
Nation. That is fact. There was an ongoing acute national threat. That 
is a fact. The administration was warning that more attacks might be 
imminent. That was fact. And we now know that there was a plot to 
launch a second wave of attacks against the west coast.
  Two: Certain telecom companies received letters every 30 to 45 days 
from very senior Government officials. That is fact. I have read them. 
The letters said the President had authorized their assistance. That is 
fact. They also said the Attorney General had confirmed the legality of 
the program. That is fact. These assurances were from the highest 
levels of the Government.
  Third: Only a very small number of people in these companies had the 
security clearances to be allowed to read the letters, and they could 
not consult others with respect to their legal responsibility, nor are 
these telecommunication company executives expert in separation of 
powers law--either article II legal arguments or the flawed AUMF 
  Fourth: As I mentioned, common law has historically provided that if 
the Government asks a private party for help and makes such assurances 
that help is legal, the person or company should be allowed to provide 
assistance without fear of being held liable. That is true. Common law 
does this. One would think this would be especially true in the case of 
protecting our Nation's security.
  Fifth, taking no legislative action on the pending cases ignores the 
fact that these companies face serious, potentially extraordinarily 
costly litigation but are unable at the present time to defend 
themselves in court. The Government has invoked the state secrets 
  Now, this is a sort of insidious defense. It places the companies in 
a fundamentally unfair place. Individuals and groups have made 
allegations to which companies cannot respond. They cannot answer 
charges, nor can they respond to what they believe are misstatements of 
fact and untruths.
  Bottom line, they cannot correct false allegations or misstatements, 
they cannot give testimony before the court, and they cannot defend 
themselves in public or in private.
  While I have concerns about striking immunity altogether or 
substituting the Government for the companies, I don't believe full 
immunity is the best option without having a court review the 
certification and the good-faith defense.
  Currently, under FISA there is a procedure that allows the Government 
to receive assistance from telecommunications companies. As I have 
already described, title 18 of the U.S. Code, section 2511, states that 
the Government must provide a court order or a certification in writing 
that states:

       No warrant or court order is required by law, that all 
     statutory requirements have been met, and that the specified 
     assistance is required, setting forth the period of time 
     during which the provision of the information, facilities, or 
     technical assistance is authorized and specifying the 
     information, facilities, or technical assistance required. . 
     . .

  That is it. Under the law, these are the circumstances under which a 
telecommunications company may provide information and services to the 
Government. Unfortunately, the administration chose not to go to the 
FISA Court in the fall of 2001 for a warrant. I will never understand 
why. Instead, it asserted that Article II of the Constitution allowed 
the President to act outside of FISA.
  However, as I said, by January of 2007--more than 5 years later--the 
entire Terrorist Surveillance Program was, in fact, brought under the 
FISA Court's jurisdiction. So, ultimately, the administration agreed 
that the program can and should be conducted under the law.
  Senators Nelson, Cardin, Salazar, Whitehouse, and I believe the 
question of whether telecommunications companies should receive 
immunity should hinge on whether the letters the Government sent to 
these companies met the requirements of 18 U.S.C. 2511 or, if not, if 
the companies had an objectionably reasonable belief their assistance 
was lawful, and what that objective belief was.
  In other words, we should not grant immunity if companies were 
willingly and knowingly violating the law.
  So the best way to answer this question is to allow an independent 
court, skilled in intelligence matters, to review the applicable law 
and determine whether the requirements of the law or the common law 
principle were, in fact, met. If they were, the companies would receive 
immunity; if not, they would not. But a court would make that decision, 
not a body, some of whom have seen the letters but most of whom have 
not. But it would be a court that is skilled in this particular kind of 
  I want to briefly comment on procedure. I very much regret that this 
amendment faces a 60-vote threshold when the other two amendments 
relating to telecom immunity face majority votes. Clearly, someone was 
afraid this might get a majority vote and, therefore, they put on a 60-
vote requirement.
  This, I believe, is prejudicial, and it places a higher burden on 
this amendment. And the irony is, this amendment could be an acceptable 

[[Page S832]]

for the other House, which has passed a bill that doesn't contain any 
provisions for immunity and has said they would not provide any 
provision for immunity. This is the way to handle that particular 
  I, therefore, urge my colleagues to support this amendment both on 
the merits and so that we can finish the FISA legislation. I hope the 
conferees will take a strong vote on this amendment--whether it reaches 
60 Senators to vote aye or not--as a signal that it is a good solution 
when the legislation goes to conference.
  Mr. President, I ask for the yeas and nays on both of these 
  The ACTING PRESIDENT pro tempore. Is there objection to asking for 
the yeas and nays on the two amendments at this time?
  Without objection, it is so ordered.
  Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  The ACTING PRESIDENT pro tempore. The Senator from Utah is 
  Mr. HATCH. Mr. President, for the last 6 months I have come to the 
floor on numerous occasions to offer my support of the limited immunity 
provisions in the Rockefeller-Bond bill.
  In addition to my views on this subject, there are countless 
Americans who have expressed their support for the immunity provision.
  In fact, I ask unanimous consent to have printed in the Record a 
letter sent to the Senate leadership last month, which is signed by 21 
State attorneys general, which expresses their strong support for the 
immunity provision included in this bill.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                December 11, 2007.
     RE FISA Amendments Act of 2007 (S. 2248).

     Hon. Harry Reid,
     Senate Majority Leader,
     Washington, DC.
     Hon. Mitch McConnell,
     Senate Minority Leader,
     Washington, DC.
       Dear Majority Leader Reid and Minority Leader McConnell: We 
     understand that the Senate will soon consider S. 2248, the 
     FISA Amendments Act of 2007, as recently reported by the 
     Senate Select Committee on Intelligence. Among other things, 
     the bill would directly address the extensive litigation that 
     communications carriers face based on allegations that they 
     responded to requests from the government regarding certain 
     intelligence-gathering programs. For a number of reasons, we 
     support these carefully crafted provisions of the bill that 
     the Intelligence Committee adopted on a bi-partisan basis.
       First, protecting carriers from this unprecedented legal 
     exposure is essential to domestic and national security. 
     State, local and federal law enforcement and intelligence 
     agencies rely heavily on timely and responsive assistance 
     from communications providers and other private parties; 
     indeed, this assistance is utterly essential to the agencies' 
     functions. If carriers and other private parties run the risk 
     of facing massive litigation every time they assist the 
     government or law enforcement, they will lack incentives to 
     cooperate, with potentially devastating consequences for 
     public safety.
       Second, the provisions of the bill are consistent with 
     existing, long-standing law and policy. Congress has long 
     provided legal immunity for carriers when, in reliance on 
     government assurances of legality or otherwise in good faith, 
     they cooperate with law enforcement and intelligence 
     agencies. But because the government has invoked the ``state 
     secrets privilege'' with respect to the subject matter of the 
     cases, the carriers are disabled from mounting an effective 
     defense, they are not permitted to invoke the very immunities 
     written into the law for their benefit, and they cannot rebut 
     the media storm that has damaged the companies' reputations 
     and customer relationships. The immunity provisions of S. 
     2248 would overcome this paradox, but not simply by 
     dismissing the pending cases outright. Instead, they would 
     establish a thoughtful, multi-step process involving 
     independent review by the Attorney General and the courts 
     that, only when completed, would lead to dismissal of the 
       Third, cases against the carriers are neither proper nor 
     necessary avenues to assess the legality of the government's 
     intelligence-gathering programs. Government entities or 
     officials are already parties in over a dozen suits 
     challenging the legality of the alleged programs, and the 
     immunity provisions in S. 2248 would have no impact on these 
     claims. In short, Congress should not, in a rush to hold the 
     government accountable for alleged wrongdoing, burden these 
     carriers with the substantial reputational damage and 
     potentially ruinous liability that could flow from these 
     suits. If these alleged programs were legally infirm, the 
     government, not private actors who acted in good faith and 
     for patriotic reasons, should answer for them.
       For these reasons, we urge that any FISA-reform legislation 
     adopted by the Senate include the carrier-immunity provisions 
     currently contained in S. 2248.
         Hon. W.A. Drew Edmondson, Attorney General of Oklahoma; 
           Hon. J.B. Van Hollen, Attorney General of Wisconsin; 
           Hon. John Suthers, Attorney General of Colorado; Hon. 
           Patrick Lynch, Attorney General of Rhode Island; Hon. 
           Bill McCollum, Attorney General of Florida; Troy King, 
           Attorney General of Alabama; Hon. Dustin McDaniel, 
           Attorney General of Arkansas; Hon. Thurbert E. Baker, 
           Attorney General of Georgia; Hon. Paul Morrison, 
           Attorney General of Kansas; Hon. Kelly Ayotte, Attorney 
           General of New Hampshire.
         Hon. Jon Bruning, Attorney General of Nebraska; Hon. 
           Wayne Stenehjem, Attorney General of North Dakota; Hon. 
           Roy Cooper, Attorney General of North Carolina; Hon. 
           Henry McMaster, Attorney General of South Carolina; 
           Hon. Tom Corbett, Attorney General of Pennsylvania; 
           Hon. Greg Abbott, Attorney General of Texas; Hon. Larry 
           Long, Attorney General of South Dakota; Hon. Bob 
           McDonnell, Attorney General of Virginia; Hon. Mark 
           Shurtleff, Attorney General of Utah; Hon. Darrell 
           McGraw, Attorney General of West Virginia; Hon. Bob 
           McKenna, Attorney General of Washington.

  Mr. HATCH. Mr. President, here is the list of the attorneys general 
who signed this letter endorsing the immunity provision in the original 
Rockefeller-Bond bill. They are attorneys general from the States of 
Wisconsin, Rhode Island, Oklahoma, Colorado, Florida, Alabama, 
Arkansas, Georgia, Kansas, Utah, Texas, New Hampshire, Virginia, North 
Dakota, North Carolina, South Carolina, Pennsylvania, South Dakota, 
Nebraska, West Virginia, and Washington.
  In addition, I ask unanimous consent to have printed in the Record 
four letters sent from law enforcement organizations, all in support of 
the immunity provision of the bill.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                               National Sheriff's Association,

                                Alexandria, VA, November 13, 2007.
     Hon. Patrick J. Leahy
     Chairman, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
     Hon. Arlen Specter,
     Ranking Member, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
       Dear Chairman Leahy and Ranking Member Specter: On behalf 
     of the National Sheriffs' Association (NSA), I am writing to 
     urge you to support Section 202 of the FISA Amendments Act of 
     2007 (S. 2448). This extension of retroactive immunity under 
     the terms referenced in this section would have a significant 
     impact on the cooperative relationship between the government 
     and the private companies to safeguard public safety.
       As you know, the electronic surveillance for law 
     enforcement and intelligence functions depends in great part 
     on the cooperation of the private companies that operate the 
     nation's telecommunication system. Section 202 would provide 
     much needed liability relief to electronic communication 
     service providers that assisted the intelligence community to 
     implement the President's surveillance program in the 
     aftermath of September 11, 2001. The provision of retroactive 
     immunity would help ensure that these providers who acted in 
     good faith to cooperate with the government when provided 
     with lawful requests in the future.
       The nation's sheriffs recognize the critical role that 
     electronic communication service providers play in assisting 
     intelligence officials in national security activities. 
     However, given the scope of the current civil damages suits, 
     we are gravely concerned that, without retroactive immunity, 
     the private sector might be unwilling to cooperate with 
     lawful government requests in the future. The possible 
     reduction in intelligence that might result from protracted 
     litigation is unacceptable for the security of our citizens.
       As the Senate considers the FISA Amendments Act of 2007, we 
     strongly urge you to help preserve the cooperative 
     relationship between law enforcement and the private sector 
     by supporting Section 202.
                                              Sheriff Craig Webre,

                              The National Troopers Coalition,

                                Washington, DC, November 12, 2007.
     Hon. Patrick J. Leahy,
     Chairman, Senate Judiciary Committee, Washington, DC.
     Hon. Arlen Specter,
     Ranking Member, Senate Judiciary Committee, Washington, DC.
       Dear Chairman Leahy and Ranking Member Specter: As the 
     Senate Judiciary Committee gets set to consider legislation 
     that would update the Foreign Intelligence Surveillance Act 
     (FISA), the National Troopers Coalition wishes to express its 
     support for Section 202 of the FISA Amendments Act of 2007. 
     This section is of particular importance to the NTC and law 
     enforcement in general

[[Page S833]]

     because it will have a significant impact on the cooperative 
     relationship between government and the private sector in 
     relation to public safety.
       Section 202 provides much needed relief from mass tort 
     litigation relief to telecommunications companies that helped 
     protect our nation after the horrific attacks of September 
     11, 2001. Should this narrow provision not be adopted, we 
     believe that all levels of law enforcement will suffer by 
     losing the cooperation of vital allies in our ongoing fight 
     againt crime. The chilling effect will be that businesses may 
     feel compelled to avoid the risk of litigation by declining 
     to cooperate with law enforcement even though they have every 
     reason to believe the request is lawful.
       In the weeks following the 9/11 attacks, some 
     telecommunications companies were apparently asked by the 
     President for their assistance with intelligence activities, 
     aimed at preventing similar attacks in the future. These 
     companies were assured that their compliance was necessary 
     and deemed lawful by the Attorney General. Upon complying 
     with the government's request, and providing information that 
     would keep the American people safe, these companies now face 
     the prospect of years of litigation, even though they cannot 
     defend themselves in court due to the highly classified 
     nature of the governmental program they were assured was 
     legal. This is disheartening, to say the least.
       The nation's State Troopers understand the vital role that 
     private businesses play in emergency situations and criminal 
     investigations, and we are concerned that if these companies 
     continue to be dragged through costly litigation for having 
     responded in these circumstances, it will deter their 
     voluntary cooperation with law enforcement authorities in the 
     future. When it comes to protecting the public from 
     terrorists, sophisticated international gangs and on-line 
     predators, government counts on its private sector partners 
     for help. We cannot afford to send the message that if you 
     cooperate with law enforcement you will be sued.
       As the Senate considers this legislation, we strongly urge 
     you to help preserve the cooperative relationship between law 
     enforcement and private businesses by supporting Section 202.
                                                Dennis J. Hallion,

                                       National Narcotic Officers'

                                      Association's Coalition,

                               West Covina, CA, November 14, 2007.
     Re Support for Section 202 of the FISA Amendments Act of 2007

     Hon. Patrick Leahy,
     Chairman, Senate Committee on the Judiciary, Washington, DC.
     Hon. Arlen Specter,
     Ranking Member, Senate Committee on the Judiciary, 
         Washington, DC.
       Dear Chairman Leahy and Ranking Member Spector: I am 
     writing on behalf of the forty-four state narcotic officers' 
     associations and the more than 69,000 law enforcement 
     officers represented by the National Narcotic Officers' 
     Associations' Coalition (NNOAC) to encourage your strong 
     support for Section 202 of the FISA Amendments Act of 2007.
       Section 202 provides much-needed relief from mass tort 
     litigation towards telecommunications companies that helped 
     protect our nation after the horrific attacks of September 
     11, 2001. Should this provision not be adopted, we believe 
     that federal, state and local law enforcement will suffer by 
     losing important voluntary cooperation of allies in our 
     national fight against crime. Private corporations and 
     business may decide to avoid the risk of litigation by 
     declining to cooperate with law enforcement--even if they 
     have every reason to believe the request for their help is 
     lawful and just.
       The NNOAC understands and appreciates the vital role that 
     private businesses play in emergency situations and criminal 
     investigations. Our membership is very concerned that if 
     these corporate entities continue to be dragged through 
     costly litigation for having responded during dire 
     circumstances--like the terrorist attacks occurring on 
     September 11, 2001--it will have a chilling effect on the 
     private sector's voluntary cooperation with law enforcement 
     in the future. The United States government cannot afford to 
     send the message to corporate America that if you cooperate 
     with law enforcement and the office of the United States 
     Attorney General, you will get sued.
       Thank you for your consideration of this important 
     provision and your continued support towards law enforcement. 
     I am happy to discuss this issue further.
                                                 Ronald E. Brooks,

                                         International Association

                                          of Chiefs of Police,

                                Alexandria, VA, November 15, 2007.
     Hon. Patrick Leahy,
     Chair, Committee on the Judiciary, U.S. Senate, Washington, 
       Dear Chairman Leahy: As President of the International 
     Association of Chiefs of Police (IACP), I am writing to 
     express my support for Section 202 of the FISA Amendments Act 
     of 2007. This section is of particular importance to law 
     enforcement because it will have a significant impact on the 
     vital cooperative relationship between government and the 
     private sector that is necessary to promote and protect 
     public safety.
       As you know, Section 202 provides relief from litigation to 
     telecommunications companies that responded to the 
     government's request for assistance following the horrific 
     attacks of September 11, 2001. It is my belief that failure 
     to adopt this provision could jeopardize the cooperation of 
     vital allies in our ongoing fight against crime and 
     terrorism. Businesses often feel compelled to avoid the risk 
     of litigation by declining to cooperate with law enforcement 
     even though they have every reason to believe the request is 
       Police chiefs understand the vital role that private 
     businesses often play in emergency situations and criminal 
     investigations, and we are concerned that if these companies 
     are faced with the threat of litigation for responding in 
     these circumstances, it will have a chilling effect on their 
     voluntary cooperation with law enforcement authorities in the 
       At this critical time in history, when federal, state, 
     tribal and local law enforcement agencies are striving to 
     protect the public from terrorists, sophisticated 
     international gangs, online predators, and other violent 
     criminals, it is extremely important that we be able to rely 
     on the private sector for much needed assistance.
       Therefore, as the Senate considers this legislation, I urge 
     you to help preserve the cooperative relationship between law 
     enforcement and private businesses by supporting Section 202.
       Thank you for your attention to this important matter and 
     for your efforts on behalf of law enforcement.
                                                Ronald C. Ruecker,

  Mr. HATCH. Mr. President, The first letter is from the National 
Sheriffs Association on behalf of 20,000 nationwide sheriffs. It states 
in part:

       The Nation's sheriffs recognize the critical role that 
     electronic communication service providers play in assisting 
     intelligence officials on national security activities. We 
     are gravely concerned that, without retroactive immunity, the 
     private sector might be unwilling to cooperate with lawful 
     Government requests in the future. The possible reduction in 
     intelligence that might result from protracted litigation is 
     unacceptable to the security of our citizens. We strongly 
     urge you to help preserve the cooperative relationship 
     between law enforcement and the private sector by supporting 
     the immunity provision of this bill.

  The other letters include one from the National Troopers Coalition, 
on behalf of its 40,000 members, one from the International Association 
of Chiefs of Police, on behalf of its 21,000 members, and one from the 
National Narcotics Officers' Association's Coalition on behalf of its 
69,000 members. All of these letters support the retroactive immunity 
  I have to tell you, when 150,000 law enforcement personnel with 
tremendous experience and expertise say they support telecom 
retroactive immunity, we should be listening and we should be giving 
this great weight. They know firsthand the dangers we face and they 
know what is at stake.
  Let me talk a little about the Feinstein amendment No. 3910 on 
exclusive means. S. 2248 already has an exclusive means provision that 
is identical to the first part of the distinguished Senator's 
amendment. That provision simply restates Congress's intent back in 
1978, when FISA was enacted, to place the President at his lowest ebb 
of authority in conducting warrantless foreign intelligence 
  The current provision in S. 2248 was acceptable to all sides in the 
Intelligence Committee because it maintains the status quo with respect 
to the dispute over the President's constitutional authority to 
authorize warrantless surveillance.
  Unfortunately, the amendment of the distinguished Senator from 
California is a significant expansion of the bipartisan provision that 
we enacted in the Intelligence Committee bill. Her amendment goes 
further by stating that only an express statutory authorization for 
electronic surveillance, other than FISA or the criminal wiretap 
statutes, shall constitute additional exclusive means.
  This attempts to prohibit the President's exercise of his judicially 
recognized article II authority to issue warrantless electronic 
surveillance directives.
  During the next attack on our country or in the face of an imminent 
threat, the Congress may not be in a position to legislate an express 
authorization of additional means. We may get intelligence information 
about an imminent threat during a lengthy recess, over a holiday. Air 
travel may be inhibited.
  The bottom line is, we don't know what tomorrow will bring. Yet this

[[Page S834]]

provision of the distinguished Senator from California would raise 
unnecessary legal concerns that might impede effective action by the 
executive branch to protect this country.
  This amendment would also make members of the intelligence community 
who conduct electronic surveillance at the direction of the President 
subject to the FISA criminal penalty provisions of a $10,000 fine and 
imprisonment for not more than 5 years.
  Virtually all of these people are not partisan people. They are 
people who continue on regardless of what administration is involved. 
They are there to do the job to protect us. They are not partisans. We 
should not treat them as such, and certainly we should not be saying 
that if they make a mistake, they are subject to a criminal provision 
of a $10,000 fine or imprisonment of not more than 5 years. Also, it is 
likely these criminal penalties would apply to any service provider who 
assisted the Government in conducting such electronic surveillance. 
That makes it even tougher to get their cooperation. Up until now they 
have been willing to cooperate because they realize how important this 
work is, and they have the request of high-level officials in the 
Government. That should be enough to protect them. They are doing it 
patriotically, to protect our country. They should not be hampered nor 
should their general counsels have to make a decision that the U.S. 
Government will have to go to court, with all of the delays involved in 
that, in order to do what it takes to protect the people in this 
  Regardless of what the skeptics and critics have said about the 
President's Terrorist Surveillance Program, the Constitution trumps the 
FISA statute. If a Government employee acts under the color of the 
President's lawful exercise of his constitutional authority, that 
employee should not be subject to a criminal penalty.
  In my opinion, the current restatement of exclusive means is fair and 
keeps the playing field level, and it is enough. Ultimately, the 
Supreme Court may decide whether Congress has the authority to limit 
the President's authority to intercept enemy communications. Until 
then, it is my hope that we don't try to tilt the balance in a way that 
we may someday come to regret.
  I urge my colleagues to vote against this exclusive means amendment.
  The next Feinstein amendment is No. 3919. This amendment alters the 
immunity provision of the Rockefeller-Bond bill. I will oppose this 
  As has been said countless times, the immunity provision in this 
legislation was created after months of extensive debate and 
negotiation between the Congress and the intelligence community.
  I cannot emphasize enough the painstaking work that the Intelligence 
Committee undertook in order to create this immunity provision. The 
chairman of the Senate Select Committee on Intelligence stated the 
following in the Intelligence Committee report:

       The [Intelligence] Committee did not endorse the immunity 
     provision lightly. It was the informed judgment of the 
     Committee after months in which we carefully reviewed the 
     facts in the matter. The Committee reached the conclusion 
     that the immunity remedy was appropriate in this case after 
     holding numerous hearings and briefings on the subject and 
     conducting a thorough examination of the letters sent by the 
     U.S. Government to the telecommunications companies.

  The administration wanted more than what is in this bill, and they 
did not get it. In a bipartisan way, we came together to come up with 
this bill, and it should not be tampered with now on the floor.
  Let's look at what this means in relation to ongoing litigation. 
Since this immunity compromise provides no immunity for Government 
agencies or officials, the following seven cases will continue to be 
unaffected by this legislation. The immunity provision of the Senate 
Select Committee on Intelligence bill still allows TSP challenges in 
the al-Haramain Islamic Foundation, Inc. v. George W. Bush case, the 
ACLU v. National Security Agency case, the Center for Constitutional 
Rights v. George W. Bush case, the Guzzi v. George W. Bush case, the 
Henderson v. Keith Alexander case, the Shubert v. George W. Bush case, 
and the Tooley v. George W. Bush case.
  I wish to draw attention to the first case. The al-Haramain Islamic 
Foundation has been designated by the Department of the Treasury as a 
``specially designated global terrorist'' for providing support to al-
Qaida and was similarly designated by the United Nations Security 
Council. If there ever was a case that should be dismissed, this is 
it--a terrorist organization providing support to al-Qaida sues the 
President for listening to their terrorist conversations. Unbelievable. 
And yet since the immunity provision in this bill is silent on the 
issue, the case will go on.
  I highlight this case to remind people the provision in the bill 
already represents a compromise. The provision in the original bill 
passed by a 13-to-2 bipartisan vote out of the Intelligence Committee 
on which I serve. Despite repeated attempts to tweak this compromise, 
it remains the most appropriate and just mechanism for the resolution 
of this issue.
  Just like the faulty ideas of Government indemnification and 
Government substitution, the Foreign Intelligence Surveillance Court 
review of certifications is yet another alternative that fails to 
improve on the original bipartisan immunity compromise we have in the 
bill before us.
  I will oppose any provisions which weaken the immunity compromise. 
This amendment we are debating will do exactly that. Rather than rely 
on the carefully crafted language, this amendment introduces radically 
new ideas which completely change the dynamics of the immunity 
provision of the bipartisan bill. Rather than allowing the presiding 
district judge to review the Attorney's General certification called 
for in this bill, this amendment unnecessarily expands the Foreign 
Intelligence Surveillance Court jurisdiction into areas unheard of when 
this court was created nearly 30 years ago and equally unheard of in 
the year 2008.
  Let's remember what it is that the Foreign Intelligence Surveillance 
Court was created to do:

       A court which shall have jurisdiction to hear applications 
     for and grant orders approving electronic surveillance.

  That is the mission of the FISC. So the FISC hears applications for 
and grants orders approving electronic surveillance. That is it. That 
is all they were created to do and rightly so. These are judges from 
all over the country who serve on the FISC at special times and do read 
these briefs, do read these legal matters that come before them, and 
then do exactly that, ``a court which shall have jurisdiction to hear 
applications for and grant orders approving electronic surveillance.''
  Yet this legislation will completely alter the nature of this court 
by transforming it into a trial court for adversarial litigation. This 
completely alters the intention of FISA from 1978 which carefully 
created this court. The role of the FISC, or Federal Intelligence 
Surveillance Court, has been greatly misunderstood during this debate.
  I suggest we pay close attention to the recent opinion from the FISC, 
which is only the third public opinion in the history of the FISC, and 
that is over a 30-year period. The importance of this quote has been 
emphasized many times by Senator Bond, and this is what the FISC said:

       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. 
     Furthermore, even if a typical FISC judge had more expertise 
     in national security matters than a typical district court 
     judge, that expertise would not be equal to that of the 
     executive branch which is constitutionally entrusted with 
     protecting the national security.

  I understand there are certain Senators in this body who dislike 
President Bush. That is their right. But on the other hand, there may 
come a time when a President of their party may have to protect our 
country. They ought to think it through because they are taking away 
the tools that are necessary to protect our country in a zeal to go 
beyond what the FISC was ever designated to do.
  Going beyond the fact this amendment would turn the role of the FISA 
Court on its head, let's look at what the FISC is asked to do in this 
amendment. According to the language, liability protection would only 
occur in three limited instances: One, the statutory defense in 18 
U.S.C. 2511(2)(a)(ii)

[[Page S835]]

has been met. Two, the assistance of electronic surveillance service 
providers was undertaken on good faith and pursuant to an ``objectively 
reasonable belief'' that compliance with the Government's directive was 
lawful. And three, assistance was not provided.
  Regarding the first instance in which litigation would be dismissed, 
we need to realize 18 U.S.C. 2511 is not the only statute that allows 
the Government to receive information from telecommunications 
companies. There are numerous statutes which authorize the Government 
to receive information from private businesses. Here is a list not 
meant to include all such statutes. Look at this list:

  18 U.S.C. 2516; 18 U.S.C. 2518, 18 U.S.C. 2512(2)(a)(ii), 18 U.S.C. 
2511(3)(b)(iv), 50 U.S.C. 1802(a), 50 U.S.C. 1804, 50 U.S.C. 1805, 50 
U.S.C. 1811, 50 U.S.C. 1861, 18 U.S.C. 2702(b)(5), 18 U.S.C. 
2702(c)(5), 18 U.S.C. 2702(b)(8), 18 U.S.C. 2702(c)(4), 18 U.S.C. 
2703(a), 18 U.S.C. 2709, 50 U.S.C. 1842, 18 U.S.C. 3127, 50 U.S.C. 
1843, and 50 U.S.C. 1844, to mention a few.
  Regarding the second narrow instance of dismissal of litigation, the 
phrase ``objectively reasonable belief'' is not defined in the 
legislation. What does this mean? How can it not be given a definition 
if the court is supposed to rely on it? Are we going to turn it over to 
the court to define it? Again, that is not the mission of the court. 
The court is not skilled in intelligence matters, except to the extent 
they have to know about it to be able to approve the various requests 
that are made of them, and there is no way it is going to be as skilled 
as the intelligence community.
  So this amendment would grant the FISC new jurisdiction to review 
past conduct of private businesses utilizing a standard which did not 
exist at the time of the supposed activity and a standard which is not 
even defined in the legislation which creates it. Wow.
  In addition, this amendment would allow plaintiffs and defendants to 
appear before the Federal Intelligence Surveillance Court. But we 
should know the FISC is not a trial court. It has never had plaintiffs 
in ongoing civil litigation appear before it in its nearly 30 years of 
  There are approximately 40 civil cases which are ongoing out of this 
matter. Would all these plaintiffs appear before FISC? How would 
classified information, therefore, be protected? This amendment would 
create an entirely new role for the FISC, thus abandoning the very 
formula by which the FISC was created in the first place. Remember, the 
FISC was created to be a specialized court. Yet the expansion of FISC 
jurisdiction and duty required by this amendment brings us down a road 
where the FISC could be transformed from a specialized court to an 
appendage of the Federal district court. That precedent set by this 
amendment could forever alter the role of the FISC.
  Quite simply, the FISC is not a trial court, nor should it be. Quite 
simply, the FISC is not a forum for adversarial litigation, nor should 
it be.
  This amendment extends the rationale that the answer to any question 
during this debate is ``have the FISC look at it.'' The role of the 
FISC is vitally important, but the FISC is not the answer to every 
question during this debate. Misguided attempts to expand the FISC to 
be the purported solution to any alleged problem with terrorist 
tracking are impractical, imperceptive, and inappropriate.
  We are long past the time for guesswork, and we need to support the 
tried-and-true bipartisan immunity provision as appropriate remedy to a 
critical problem. I reiterate my strenuous objection to this amendment, 
and I urge my colleagues not to support an amendment which introduces 
far too many unanswered questions into a debate which needs none.

                           Amendment No. 3912

  With regard to amendment No. 3912 regarding bulk collection, this 
amendment did pass out of the Judiciary Committee, but it passed on a 
10-to-9 party-line vote after only four minutes of discussion. This 
Judiciary substitute was tabled by the full Senate by a 60-to-36 vote, 
and this amendment is one of the reasons it was.
  There is confusion about the need for this amendment. Does it 
preclude bulk collection or not? The text of the amendment seems to 
indicate that no bulk collection is permitted. Yet the author of the 
amendment states there is an exception for military operations. I have 
read the amendment, and I don't see any exception listed. Perhaps he is 
referencing comments in the Judiciary Committee report. But committee 
reports are not law.
  The Attorney General and Director of National Intelligence have 
carefully reviewed this amendment, and they have stated that if this 
amendment is in a bill which is presented to the President, they will 
recommend that the President veto the bill, and I agree with that 

                           Amendment No. 3979

  With regard to the Feingold amendment No. 3979 on sequestration of 
U.S. person communications, I am very concerned about the substance of 
this amendment, as are many of my colleagues. In addition, the Attorney 
General and Director of National Intelligence have thoroughly reviewed 
this amendment, and they recently sent a letter to the Senate stating:

       This amendment would eviscerate critical core authorities 
     of the Protect America Act and S. 2248. Our prior letter and 
     Statement of Administration Policy explained how this type of 
     amendment increases the danger to the Nation and returns the 
     intelligence community to a pre-September 11th posture that 
     was heavily criticized in congressional reviews. It would 
     have a devastating impact on foreign intelligence 
     surveillance operations. It has never been the case that the 
     mere fact that a person overseas happens to communicate with 
     an American triggers a need for court approval. Indeed, if 
     court approval were mandated in such circumstances, there 
     would be grave consequences for the intelligence communities' 
     efforts to collect foreign intelligence.

  The last part of this has been underlined.

       Accordingly, if this amendment is part of a bill that is 
     presented to the President, we, as well as the President's 
     other senior advisors, will recommend that he veto the bill.

  Unlike many of the amendments we have debated here on the Senate 
floor, this amendment did not receive a vote in either the Intelligence 
or Judiciary Committees. Not that that is limiting, but the amendment 
itself is not a healthy one on its face. Yet this amendment is among 
the most drastic in terms of affecting the efficiency and effectiveness 
of our intelligence collection processes. This amendment imposes 
tremendous restrictions in which the intelligence community is limited 
in what information they can receive and how this information can be 
  That is what I think we were shocked to find when 9/11 occurred, that 
our various intelligence community organizations--FBI, CIA, et cetera--
were not sharing information. Now that we have solved that problem, why 
go back?
  The massive reorganization of our collection techniques which would 
be required by this amendment is certainly obvious. The author of the 
amendment has recognized this as well, previously stating:

       I do understand this amendment imposes a new framework that 
     may take some time to implement.

  We need to remember the purpose of this bill is, and always has been, 
to enable the intelligence community to target foreign terrorists and 
spies overseas. But in order to make sure we are not missing valuable 
intelligence, we need to get all of a target's communications, not only 
when that target is talking with other people overseas, and that may 
mean intercepting calls with people inside the United States. In fact, 
those may be the most important calls to try to prevent an attack in 
the United States.
  I understand there is concern about the impact of foreign targeting 
on U.S. persons. But we have a lot of protections built into this new 
bill that came out of the Intelligence Committee on a 13-to-2 
bipartisan vote. I have been to this floor on numerous occasions and 
highlighted how the Foreign Intelligence Surveillance Court's role in 
all aspects of foreign intelligence collection is being greatly 
expanded by this bill, far beyond the 1978 FISA statute.
  In addition, the Senate agreed to an amendment by Senator Kennedy 
that would make it clear you cannot use authorities in this bill to 
require communications where the sender and all intended recipients are 
known to be in the United States. We shouldn't go any farther.
  The intelligence community must use minimization procedures. Our 
analysts are familiar with these procedures. They have used them for a 

[[Page S836]]

time without any known abuses. Yet the scope of this amendment seems to 
represent no confidence in the minimization procedures used by the U.S. 
Government. Keep in mind, these minimization procedures were enacted 
over 30 years ago, and this bill will authorize the FISC to review and 
approve them for the first time.
  This bill goes farther than ever before in our history in striking a 
balance between intelligence collection and protection of civil 
liberties. Personally, I am proud of this bill. I think all in the 
Intelligence Committee should have stuck with it, and we should not be 
trying to amend it at this point, especially with amendments that 
aren't going to work and will diminish our ability to get the 
intelligence we need to protect our citizens. Now I believe that in 
this bill we are protecting the civil liberties of ordinary Americans, 
but we also need to make sure our intelligence community isn't blind to 
information which may ultimately prove to be critical.
  Section (a)(1) of this amendment would not allow the collection of 
certain communications if the Government knows before acquisition a 
communication is to or from a person reasonably believed to be in the 
United States. The Government knows when it targets foreign citizens in 
foreign countries that they might call or be called by U.S. persons. 
These are called ``incidental communications.'' Under the limitations 
in this amendment, the Government could not initiate the collection in 
the first place under many circumstances. This essentially undoes the 
authority granted in section 703 of this bill and will cause us to go 
deaf to our enemies.
  The Director of National Intelligence has told us before that speed 
and agility are essential in tracking terrorists and preventing 
terrorist attacks. Yet even if collection could somehow begin under the 
dangerous restrictions in this amendment, analysts would have to go 
through hoop after hoop after hoop to use information that has foreign 
intelligence value. Remember, if it doesn't have foreign intelligence 
value, any U.S. person information would already have been minimized.
  I do not understand why we would set up unnecessary roadblocks and 
slow this process down when we already have so many substantial 
protections in place. The Director of National Intelligence has stated 
this amendment would cause significant operational problems for the 
intelligence community that could lead to intelligence gaps. I affirm 
this statement. Knowing this, it would be irresponsible to handcuff our 
intelligence community with these additional restrictions.
  I urge my colleagues to join me in opposing this dangerous amendment.
  I emphasize again: We have brilliant, knowledgeable, well-trained, 
decent, honorable people who are here, no matter who is President, in 
the business of protecting our citizens from terrorist acts. And this 
bill, which passed 13 to 2 on a bipartisan vote out of the Intelligence 
Committee, provides more checks on these good people than the FISA Act 
of 1978 did, and that act has worked very well through all those years. 
The reason we are doing this bill is because we are in a new age, with 
new methods of communication that simply were not covered by the 1978 
act, to put it in simple terms.
  This is a complex thing, and I think we have to be very careful if we 
go beyond what the Intelligence Committee bill has said we should do. 
It was a bill worked out after months of hearings and work by the 
Intelligence Committee. I believe, in the Senate, I have probably been 
on the Intelligence Committee longer than anybody else, and I want to 
protect our people too. I want to protect them in a multiplicity of 
ways. But one of the most important ways we can protect them in this 
day of Islamic fascism is to give them the tools to do it and not 
restrict and hamper them from doing it--keeping in mind that they are 
honest, non-partisan citizens who are more interested in protecting 
Americans and getting the information we need to protect everybody than 
the partisans and sometimes uninformed people make them out to be.
  Yes, any administration can put the top-level people in, but it is 
those who collect this information on a daily basis, minimize this 
information when it needs to be minimized, and work to do it in an 
honorable fashion who do the work. We should not be tying their hands 
and hampering them from getting the work done in this day and age when 
we have so many problems, and it looks to me as if we are going to have 
them for many years to come.
  Mr. President, I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Rhode Island.

                           Amendment No. 3919

  Mr. WHITEHOUSE. Mr. President, I am glad to have had the occasion to 
be on the floor and hear the words of the very distinguished Senator 
from Utah, who has served with such distinction on the Intelligence 
Committee for so long, but I would respond to him first that this much-
touted 13-to-2 vote in the Intelligence Committee, as shown by the 
record of the additional views of the members of the Intelligence 
Committee, reflected the consensus of the Intelligence Committee that 
this was a work in progress; that it should go on to the Judiciary 
Committee, which was its next stop, and then to the floor. There was no 
sense that the work on the bill should stop at the time it left the 
Intelligence Committee.
  Indeed, in the 13-to-2 vote, there were 9 Senators who offered 
additional views suggesting changes or differences in the legislation. 
So I don't think it would be wise or appropriate for this body to take 
a look at what the Intelligence Committee did and say that because the 
number appears to be 13 to 2 on the surface that we are not going to do 
our job of continuing to work on this work in progress.
  In that spirit, I rise today to support amendment No. 3919, on good 
faith determinations, offered by Senators Feinstein and Nelson. In the 
divisive debate we are having over immunity, Senator Feinstein's 
amendment is a commendable effort to find middle ground, to which 
Senator Feinstein has brought great diligence and care. Senator Specter 
and I have offered a broader approach, but I also support the 
Feinstein-Nelson amendment.
  This amendment goes forward with the first half of Specter-
Whitehouse. It provides for an independent judicial review of the 
companies' good faith. Specter-Whitehouse then provides for 
substitution of the Government in place of the companies, which would 
protect plaintiffs' legitimate rights to continue legitimate 
litigation, including the right to conduct discovery.
  Substitution also avoids the problem of uncompensated congressional 
termination of ongoing litigation--a separation of powers problem. 
Senator Feinstein's alternative at least provides for the bare minimum 
of a judicial determination whether the defendant companies were acting 
in compliance with the law or with the reasonable good faith belief 
that they were in compliance. I would note this is probably the lowest 
possible standard. We don't even require companies to have been acting 
within the law. All we require in this amendment is that they have a 
reasonable and good faith belief they were acting within the law.
  As I have said before, both of the all-or-nothing approaches we are 
presented with here are flawed. Full immunity would strip the 
plaintiffs of their day in court and take away their due process rights 
without any judicial determination that the companies acted in good 
faith. That is not fair. Nothing suggests this isn't legitimate 
litigation, and it is wrong to take away a plaintiff's day in court 
without a chance to show why doing so may not be warranted.
  I hope in this Chamber we can all agree that if the companies did not 
act reasonably and in good faith they shouldn't get protection. If we 
agree on that, the question becomes where the good faith determination 
should be made. I think it should be in court, and that is where 
Senator Feinstein's amendment puts it--in this case, the FISA Court. 
First, it should not be here. We in Congress are not judges, and good 
faith is a judicial determination. We should leave this key 
determination to the judicial branch of Government. The companies have, 
of course, asserted that they acted in good faith. But we surely should 
not rely on one side's assertions in making a decision of this 
  Moreover, most Senators have not even been read into the classified 
materials that would allow them to reach a fair conclusion. This body 
is literally incapable of forming a fair opinion

[[Page S837]]

without access by most Members to the facts. So this is the wrong place 
to have it. We need to provide a fair mechanism for a finding of good 
faith by a proper judicial body with the proper provisions for secrecy, 
which the FISA Court has. If we do not do this, we are simply acting by 
brute political force, and doing so in an area where there are 
significant constitutional issues. Congress cutting off the ongoing 
work of the judicial branch may well violate the boundary that keeps 
the legislative and judicial branches separate--a cornerstone of our 
  In an opinion written by Justice Scalia, the U.S. Supreme Court said 
that the Framers of the Federal Constitution had what they called ``the 
sense of a sharp necessity to separate the legislative from the 
judicial power, prompted by the crescendo''--was the word they used--
``of legislative interference with private judgments of the courts.''
  If there were ever a case of legislative interference with private 
judgment of the courts, this is it. On the other hand, consider the 
fact that the Government has forbidden these defendants to defend 
themselves. By invoking the state secrets privilege, the Government has 
gagged the companies. In my view, that is not fair either, particularly 
if the Government put these companies in this mess in the first place. 
So both of the all-or-nothing approaches are flawed.
  I think Senator Specter and I have come up with the best answer: 
substitution. But Senator Feinstein's amendment at least requires the 
FISA Court to make an initial determination that the companies either 
did not provide assistance to the Government--obviously, if they did 
not do anything, they should not be liable--or were actually complying 
with the law. Clearly, if they complied with the law, they should not 
be liable--or were at least acting with a reasonable good-faith belief 
that they were complying with the law--again, the lowest possible 
standard. If we cannot agree on this, then we have really taken our 
eyes off of our duties. The difference then becomes that once that 
good-faith determination is made, the Specter-Whitehouse amendment 
would lead to substitution, whereas the Feinstein-Nelson amendment 
would lead to a termination of the claims.
  Both of these approaches are better than the all-or-nothing 
alternative we otherwise face, and both share the same goal: to use 
existing procedures and existing rules and existing courts to unsnarl 
this litigation and move it toward a just and a proper conclusion.
  I urge my colleagues to support both the Specter-Whitehouse and the 
Feinstein-Nelson amendments.
  I make one final point. Senator Hatch pointed out that the people who 
serve us in our intelligence community are honorable, are well trained, 
are intelligent, are decent, and are trying to do the right thing. I do 
not challenge any of that.
  As the U.S. attorney, I worked with FBI agents day-in and day-out, 
Secret Service agents, Drug Enforcement Administration agents, Alcohol, 
Tobacco and Firearms agents--all decent, honorable, hard working, well 
trained, trying to do the right thing. In that environment, they are 
all very comfortable that the structure we have put in place for 
domestic surveillance, to protect American's rights, is a useful thing, 
it is important infrastructure of Government.
  I see what we are trying to do now not as a criticism of the people 
in the intelligence community but, rather, as being an attempt to build 
out the infrastructure, the infrastructure that balances freedom and 
security in this new area of international surveillance, in just the 
same way we put restrictions on our agents at home.
  As attorney general, I actually had to personally get the wiretaps 
for the State of Rhode Island from the presiding judge of the superior 
court. I would say the same thing about the Rhode Island State troopers 
with whom I worked in those cases.
  Agents and police officers who have this responsibility do not resent 
the fact that they are given a structure to work within. I doubt that 
the intelligence community would resent a sensible measure that would 
allow a judicial determination before an American company has a finding 
of good faith made about it.
  I yield the floor, and I suggest the absence of a quorum.
  The PRESIDING OFFICER (Ms. Klobuchar). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. FEINGOLD. I ask unanimous consent that the order for the quorum 
call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                           Amendment No. 3979

  Mr. FEINGOLD. Madam President, today I want to address several of the 
pending amendments to the FISA legislation, and I will indicate the 
amendment number of each one as I discuss it. First is what we call the 
Feingold-Webb-Tester amendment No. 3979. I wish to address some of the 
arguments that have been made in opposition to Feingold-Webb-Tester and 
to set the record straight about what the amendment does. The Senator 
from Missouri has suggested it would cut off all foreign intelligence 
collection because the Government would not be able to determine in 
advance whether communications are foreign to foreign. This is 
preposterous. The whole point of the amendment is to allow the 
Government to acquire all communications of foreign targets when it 
does not know in advance whether they are purely foreign or have one 
end in the United States.
  The administration also argues we should not pass the Feingold-Webb-
Tester amendment because it would be difficult and time consuming to 
implement. That is no reason to oppose the amendment. I understand the 
amendment imposes a new framework, and that is precisely why the 
amendment grants the Government up to a year before it goes into 
  I also wish to make clear that the amendment does not force the 
Government to determine the location of every person and every e-mail 
the Government acquires, contrary to what has been suggested. The 
amendment only requires that the Government determine whether one end 
of a communication is in the United States where reasonably 
practicable, based on procedures approved by the FISA Court. In some 
instances, that would be easy to do, while in others it would not be 
feasible at all. The court-approved procedures will take those 
differences into account.
  It is also not true that the amendment would harm our nonterrorism 
foreign intelligence operations. This amendment leaves intact the 
warrantless acquisition of any foreign-to-foreign communications and 
any communications where the Government doesn't know in advance whether 
they are to or from people in the United States. Even for 
communications where the Government knows they involve Americans in the 
United States, no court order is actually required for communications 
relating to terrorism or anyone's safety.
  This is much broader than the pre-Protect America Act law. None of 
this would have been possible 7 months ago. Let's not forget the 
justification for this legislation has always been about terrorism and 
foreign-to-foreign communications. Last month, the Vice President 
defended the Protect America Act by talking about ``one foreign citizen 
abroad making a telephone call to another foreign citizen abroad about 
terrorism.'' The Feingold-Webb-Tester amendment allows those calls to 
be monitored without a warrant.
  The Feingold-Webb-Tester amendment allows the Government to get the 
information it needs about terrorists and about purely foreign 
communications, while providing additional checks and balances for 
communications between people in the United States and their overseas 
family members, friends, and business colleagues. I urge my colleagues 
to support the Feingold-Webb-Tester amendment.
  Let me next turn to Amendment No. 3912, which has been referred to as 
the bulk collection amendment. I wish to again stress the importance of 
my amendment prohibiting the bulk collection of Americans' 
international communications. The bill we are debating is supposedly 
intended to permit monitoring of foreign-to-foreign communications and 
the tracking of terrorists overseas without a warrant. It is not 
supposed to allow the Government to collect all communications into or 
out of the United States, but

[[Page S838]]

that is exactly what the Government could seek to do with these 
authorities, which is why this amendment is critical. I have yet to 
hear any real arguments against it.
  The DNI's recent letter opposing the amendment fails to come up with 
any substantive arguments. Instead, it describes hypothetical 
situations that clearly wouldn't be affected by the amendment. In order 
to protect the international communications of innocent Americans at 
home, the amendment simply requires that the Government is seeking 
foreign intelligence information from its targets. In the only examples 
cited in the letter--a neighborhood or group of buildings or geographic 
area that the U.S. military is about to invade--clearly, the Government 
has that purpose. The notion that the Government could not make a good-
faith certification to the court that it is seeking foreign 
intelligence, which is all this amendment requires, is simply 
ludicrous. What is telling about the DNI's letter, besides that it 
includes no real arguments against the amendment, is what it does not 
say. It does not refute the danger this amendment is intended to 
address: the bulk collection of all communications between the United 
States and Europe or Canada or South America or, indeed, the world.
  The DNI has testified that the PAA would authorize that kind of 
massive, indiscriminate collection of Americans' communications, and 
the administration has never denied that this bill could, too, unless 
we pass this amendment. In fact, this letter does nothing to reassure 
the American people the Government could not and would not collect all 
their international communications. Worse, the letter argues that a 
prohibition on that kind of massive collection would not ``appreciably 
enhanc[e] the privacy interests of Americans.'' If the DNI does not 
think the privacy interests of Americans would be affected by the 
collection of all their international communications, potentially 
vacuuming up their communications not just with foreigners overseas but 
with Americans overseas as well, then that is all the more reason to be 
  Serious constitutional issues are at stake. The administration is 
effectively telling us it intends to ignore them.

  Let me also respond to a statement by the chairman of the 
Intelligence Committee last week that a dragnet of all international 
communications of Americans would probably violate the fourth 
amendment. I am pleased to hear the chairman acknowledge that the 
surveillance the administration would like to conduct would violate the 
constitutional rights of Americans, but how could we possibly expect 
this administration--an administration that has already demonstrated 
indifference to Americans' privacy and has already said that bulk 
collection would be ``desirable''--to hold back. Nor should we rely on 
the FISA Court to stop this, as the chairman has suggested. If Congress 
believes something is unconstitutional, we have absolutely no business 
authorizing it. We have been warned, and now we need to act by passing 
my modest bulk collection amendment.
  I reserve the remainder of my time on amendment No. 3902.
  As to the Dodd-Feingold immunity amendment No. 3907, I am pleased to 
join my colleague in offering this amendment to strike the immunity 
provision. I ask unanimous consent that I be yielded 15 minutes to 
speak on the Dodd amendment and that the time be charged to the 
proponents of the amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. FEINGOLD. I thank the Senator from Connecticut.

                           Amendment No. 3907

  I strongly support Senator Dodd's amendment to strike the immunity 
provision from this bill. I thank him for his leadership on the issue. 
I offered a similar amendment in the Judiciary Committee, and I 
supported a similar amendment in the Intelligence Committee when it was 
offered by the Senator from Florida, Mr. Nelson. Congress should not be 
giving automatic retroactive immunity to companies that allegedly 
cooperated with the President's illegal NSA wiretapping program. This 
provision of the bill is both unnecessary and unjustified, and it will 
undermine the rule of law. Retroactive immunity is unnecessary because 
current law already provides immunity from lawsuits for companies that 
cooperate with the Government's request for assistance, as long as they 
receive either a court order or a certification from the Attorney 
General that no court order is needed and the request meets all 
statutory requirements.
  Companies do not need to do their own analysis of the court order or 
the certification to determine whether the Government is, in fact, 
acting lawfully. But if requests are not properly documented, FISA 
instructs the telephone companies to refuse the Government's request 
and subjects them to liability if they instead decide to cooperate. 
This framework, which has been in place for 30 years, protects 
companies that act at the request of the Government, while also 
protecting the privacy of Americans' communications. Some supporters of 
retroactively expanding this provision argue that the telephone 
companies should not be penalized if they relied on high-level 
Government assurance that the requested assistance was lawful. As 
superficially appealing as that argument may sound, it utterly ignores 
the history of the FISA statute.
  Telephone companies have a long history of receiving requests for 
assistance from the Government. That is because telephone companies 
have access to a wealth of private information about Americans, 
information that can be a very useful tool for law enforcement. But 
that very same access to private communications means telephone 
companies are in a unique position of responsibility and public trust. 
Yet before FISA, there were basically no rules to help the phone 
companies resolve this tension, between the Government's request for 
assistance in foreign intelligence investigations and the companies' 
responsibilities to their customers. This legal vacuum resulted in 
serious Government abuse and overreaching.
  The Judiciary Committee has heard testimony about this system from 
Mort Halperin, a former Nixon administration official who was himself 
the subject of a warrantless wiretap and was involved in the drafting 
of the FISA law in the 1970s. He testified that before FISA:

       Government communication with the telephone company . . . 
     could not have been more casual. A designated official of the 
     FBI called a designated official of [the company] and passed 
     on the phone number. Within minutes all of the calls from 
     that number were being routed to the local FBI field office 
     and monitored.

  Not surprisingly, this casual ad hoc system failed to protect 
Americans' privacy. The abuses that took place are well documented and 
quite shocking. With the willing cooperation of the telephone 
companies, the FBI conducted surveillance of peaceful antiwar 
protesters, journalists, steel company executives, and even Martin 
Luther King, Jr., an American hero whose life we recently celebrated.
  So Congress decided to take action. Based on the history of and 
potential for Government abuses, Congress decided it was not 
appropriate for telephone companies to simply assume that any 
Government request for assistance to conduct electronic surveillance 
was legal.
  Let me repeat that. A primary purpose of FISA was to make clear once 
and for all that the telephone companies should not blindly cooperate 
with Government requests for assistance. At the same time, however, 
Congress did not want to saddle telephone companies with the 
responsibility of determining whether the Government's request for 
assistance was a lawful one. That approach would leave the companies in 
a permanent state of legal uncertainty about their obligations. So 
Congress devised a system that would take the guesswork out of it 
completely. Under that system, which is still in place today, the 
companies' legal obligations and liability depends entirely on whether 
the Government has presented the company with a court order or a 
certification stating that certain basic requirements have been met.

  If the proper documentation is submitted, the company must cooperate 
with the request and will be immune from liability. If the proper 
documentation has not been submitted, the

[[Page S839]]

company must refuse the Government's request or be subject to possible 
liability in the courts.
  AT&T, which was the only telephone company in existence at the time 
in the 1970s, was at the table when FISA was drafted. As Mr. Halperin 
described in his testimony, the company:

     received the clarity that it sought and deserved. The rule, 
     spelled out clearly in several places in the legislation and 
     well understood by all, was this: If [the phone company] 
     received a copy of a warrant or certification under the 
     statute, it was required to cooperate. If it did not receive 
     authorization by means outlined in the statute, it was to 
     refuse to cooperate and was to be subjected to state and 
     federal civil and criminal penalties for unlawful acquisition 
     of electronic communications.

  The telephone companies and the Government have been operating under 
this simple framework for 30 years. Companies have experienced, highly 
trained and highly compensated lawyers who know this law inside and 
out. In view of this history, it is inconceivable that any telephone 
companies that allegedly cooperated with the administration's 
warrantless wiretapping program did not know what their obligations 
were. It is just as implausible that those companies believed they were 
entitled to simply assume the lawfulness of a Government request for 
assistance. This whole effort to obtain retroactive immunity is based 
on an assumption that does not hold water.
  Quite frankly, the claim that any telephone company that cooperates 
with a Government request for assistance is simply acting out of the 
sense of patriotic duty doesn't fare much better. Recently, we learned 
that telecommunications companies actually have cut off wiretaps when 
the Government failed to promptly pay its bills.
  The Department of Justice Office of Inspector General released a 
report last month finding that ``late payments have resulted in 
telecommunications carriers actually disconnecting phone lines 
established to deliver surveillance to the FBI, resulting in lost 
evidence.'' Since when does patriotic duty come with a price tag? 
Evidently, assisting the Government's criminal intelligence 
investigation efforts fell somewhere below collecting a paycheck on the 
companies' lines of priorities.
  Some of my colleagues have argued the telephone companies alleged to 
have cooperated with the program had a good-faith belief their actions 
were in accordance with the law. But there is an entire statute in 
addition to the certification provision that already provides telephone 
companies with a precisely defined good-faith defense. Under this 
provision, which is found in section 2520 of title 18, if the company 
is relying in good faith on a court order or other statutory 
legislative authorization, they have a complete defense to liability. 
This is a generous defense, but as generous as it is, it is not 
unlimited. The court must find that the telephone company determined in 
good faith that there was a judicial, legislative, or statutory 
authorization for the requested assistance.

  I also wish to address the argument that retroactive immunity is 
necessary because the telephone companies can't defend themselves in 
court. When I hear this argument, I can't help but think that this 
administration has staged the perfect crime: enlist private companies 
to allegedly provide assistance in an illegal Government program, then 
prevent any judicial inquiry into the program by claiming a privilege--
the so-called state secrets privilege--that not only shields your own 
actions from scrutiny but enables the companies to evade judicial 
scrutiny as well by claiming that they are defenseless. All the 
administration needs to get away with this is Congress's blessing.
  That is exactly why immunity is the wrong solution. Think about what 
we would be doing. We would be saying that in matters of national 
security, you can break the law with impunity because the courts can't 
handle national security materials. This is outrageous. Do we really 
want to create a law-free zone for crimes that involve national 
security matters? If the Government's use of the state secrets 
privilege is interfering with holding companies accountable for alleged 
violations of the law, the solution isn't to shrug and just give up on 
accountability; the solution is to address the privilege head-on and 
make sure it doesn't become a license to evade the laws we have passed.
  In any event, the notion that the Federal courts can't handle 
national security matters is insulting to the judges this body has seen 
fit to confirm, and it is contrary to the facts. Cases involving 
classified information are decided routinely by the Federal courts. 
That is why we have a statute--the Classified Information Procedures 
Act--to govern how courts handle classified materials. Pursuant to that 
statute, courts have in place procedures that have successfully 
protected classified information for many years. There is no need to 
create a ``classified materials'' exception to our justice system.
  That brings me to another issue. I have been discussing why 
retroactive immunity is unnecessary and unjustified, but it goes beyond 
that. Granting companies that allegedly cooperated with an illegal 
program this new form of automatic retroactive immunity undermines the 
law that has been on the books for decades, a law that was designed to 
prevent exactly the type of actions that allegedly occurred here. 
Remember, telephone companies already have absolute immunity if they 
complied with the applicable law, and they have an affirmative defense 
if they believed in good faith that they were complying with that law. 
So the retroactive immunity provision we are debating here is necessary 
only if we want to extend immunity to companies that did not comply 
with the applicable law and did not even have a good-faith belief that 
they were complying with it. So much for the rule of law. Even worse, 
granting retroactive immunity under these circumstances will undermine 
any new laws we pass regarding Government surveillance. If we want 
companies to follow the law in the future, it certainly sends a 
terrible message, and sets a terrible precedent, to give them a ``get 
out of jail free'' card for allegedly ignoring the law in the past.
  I find it particularly troubling when some of my colleagues argue 
that we should grant immunity in order to encourage the telephone 
companies to cooperate with the Government in the future. Let's take a 
close look at that argument.
  Telephone companies are already legally obligated to cooperate with a 
court order, and as I have mentioned, they already have absolute 
immunity for cooperating with requests that are properly certified. So 
the only thing we would be encouraging by granting immunity here is 
cooperation with requests that violate the law. That is exactly the 
kind of cooperation FISA was supposed to prevent.
  Let's remember why: These companies have access to our most private 
conversations, and Americans depend on them to respect and defend the 
privacy of these communications unless there is clear legal authority 
for sharing them. They depend on us to make sure the companies are held 
accountable for betrayals of that public trust. Instead, this immunity 
provision would invite the telephone companies to betray that trust by 
encouraging cooperation with a legal Government program.
  Since 9/11, I have heard it said many times that what separates us 
from our enemies is respect for the rule of law. Unfortunately, the 
rule of law has taken it on the chin from this administration. Over and 
over, the President and his advisers have claimed the right to ignore 
the will of Congress if and when they see fit. Now they are claiming 
the same right for any entity that assists them in that effort. It is 
time for Congress to state clearly and unequivocally: When we pass a 
law, we mean what we say, and we except the law to be followed. That 
goes for the President, it goes for the Attorney General, and it goes 
for the telephone companies. The rule of law is not less important 
after 9/11. We can and we must defeat al-Qaida without breaking the law 
or sacrificing Americans' basic rights.
  We have a choice. The Senate can stand up for the rule of law and let 
these cases go forward in the courts or we can decide to give our 
blessing to an administration that broke the law and the companies that 
allegedly helped it, and we can signal that we stand ready to bail them 
out the next time they decide to ignore the law. I urge my colleagues 
not to take that step. Support the rule of law by voting in favor of 
the Dodd-Feingold amendment No. 3907.

[[Page S840]]

  I again thank my colleague from Connecticut for his tremendous 
leadership on this issue. It has been extremely helpful in this effort. 
I sincerely thank him.
  I ask unanimous consent that my remaining time be reserved.
  Madam President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Connecticut is recognized.
  Mr. DODD. Madam President, before our colleague from Wisconsin leaves 
the floor, let me thank him for his leadership on this issue, along 
with many others associated with this piece of legislation: the reverse 
targeting and the bulk collection issues which he has raised, which 
seem so obvious and so clear that you wonder why they even have to be a 
subject of debate. The clear reaction, in fact, from leading 
authorities, including those of the intelligence agencies, has been to 
state categorically that the very actions he wants to exclude from this 
legislation are prohibited under law. Reverse targeting is 
unconstitutional, and bulk collection is unattainable. But some in the 
administration have said: Were bulk collection possible, we believe we 
have the right to do it. The idea of bulk collection without following 
the rule of law should violate the sensibilities of every single Member 
of this body.
  This debate and this discussion are very important. This has gone on 
now since back in December--actually, before then. The Senator from 
Wisconsin sits on both the Judiciary Committee and the Intelligence 
Committee, and so he has been deeply involved in these issues for a 
long time.
  What I wish to state at the outset is that these amendments we are 
offering should not be the subject of some sort of political divide 
between Democrats, Republicans, liberals, conservatives, moderates, or 
whatever definitions one wants to apply to the people who serve here. 
This is about the rule of law. It is about the Constitution of the 
United States, and the idea that this issue and debate should somehow 
be divided along those lines ought to be offensive to every single 
Member of this body. Every single one of us, on the day we raise our 
right hand and take the oath of office, swear to uphold the 
Constitution of the United States. That is nothing less than what we 
are engaged in with this debate.
  We have been asked to subscribe to the false dichotomy that in order 
for us to be more secure as a nation, we must give up some of our 
rights. The Senator from Wisconsin and the Senator from Connecticut 
believe very firmly that quite the opposite is true: that if you begin 
to give up rights, you become less secure, as a people and as a nation. 
Our deep concern is that that is exactly the path we seem to be 
following these days with the refusal to adopt the Feingold amendments 
in dealing with reverse targeting and bulk collections. It is what I am 
fearful may be the case when we try to strike title II of the Foreign 
Intelligence Surveillance Act and prohibit the retroactive immunity 
being sought by the administration and by a handful of telephone 
  Let me remind our colleagues that when this proposal was first made 
to the Intelligence Committee, the proposal was to grant immunity to 
anyone involved in the collection of this information, including those 
who allegedly authorized it at the executive branch. So while I am 
critical of what is in the Intelligence Committee bill that has been 
brought to us by my friend from West Virginia and my friend from 
Missouri, Senator Rockefeller and Senator Bond, I wish to begin by 
thanking them for having rejected the administration's earlier request 
that there be broad-based immunity granted to everyone involved in 
warrantless wiretapping. But it is instructive to know what the 
administration wanted at the outset: complete immunity for everyone 
associated with this vacuum-cleaning operation, who eavesdropped on 
millions of phone conversations, e-mails, and faxes over the last 5 
  Why were they seeking immunity for everyone involved in this? I think 
the answer becomes abundantly clear. There is a great concern that the 
courts may conclude that, in fact, what was done was illegal and that 
those who participated in it might be held liable.
  Again, I thank the Intelligence Committee for narrowing this request. 
However, title II of this bill would still provide telecommunications 
corporations retroactive immunity for their warrantless and possibly--
possibly--illegal spying on their very customers.
  Much more than a few companies and a few lawsuits are at stake. Equal 
justice is at stake--justice that does not place some corporations 
outside of the rule of law.
  Openness is at stake--an open debate on security and liberty, and an 
end to warrantless wiretapping of Americans.
  Senator Feingold laid out the history of FISA in eloquent terms this 
afternoon, going back to the 1970s and describing the genesis of this 
law that has been amended, I might add, many, many times over the last 
30 years. It has been amended periodically to conform to the emerging 
technologies, the emerging abilities of those who would do us harm, and 
the emerging strategies that would allow us to collect the information 
that would minimize their ability to do just that.
  So over the years, this body has been asked to modify that law. 
Almost without exception, I think it is important to point out, this 
body has amended that law almost unanimously, because all of us 
recognize that it is critically important that we have the ability to 
determine who would do us harm, how they would do that harm, and to 
stop it before it happens. There is not a single Member of this body 
who is not deeply committed to that goal. We all understand and are 
deeply committed to the idea that we ought to do everything we can to 
protect ourselves. But we also understand, and have since the 1970s, 
the importance not only of gathering the information from those who 
would do us injury but simultaneously doing that which is also critical 
for our survival as a nation; that is, protecting the liberties and 
rights of this country.
  They are what makes us unique as a nation. We were really the first 
Nation that insisted that we were a nation of laws and not men. It was 
a unique idea in the annals of recorded history; but at the founding of 
this great Republic, we declared that we were going to do things 
differently. In fact, many have argued over the years that if we were 
looking for pure efficiency, this is the last form of government we 
would have designed. But the Framers of our Constitution were 
interested in other things than just efficiency. Had efficiency been 
the goal, they certainly would have thought of a more streamlined 
system. But they set up a system that not only determined what we did 
but how we did things: establishing coequal branches of Government--an 
executive, legislative, and judicial branch--coequal branches of 
Government, and insisting that there be checks and balances, because 
the Framers had been through a system in which a king and a handful of 
people decided the fate of not only their own nation but the colonies 
they controlled. So they set up this cumbersome, less efficient system 
because they were deeply determined to protect the rule of law that 
never allowed one individual or a handful of individuals decide the 
fate of a nation.
  So it is important to understand the genesis of this tension which 
has existed in our country for more than 200 years: protecting our 
security and protecting our liberties. I am not suggesting that it is 
always easy to strike the perfect balance, but over the years we have 
tried as a nation, from one generation to the next, to try to keep that 
balance, that tension, in place so that not one side or the other would 
dominate. In our time, the challenge is to balance our need to gather 
information with the protection of privacy and the rights that all 
Americans seek, regardless of geography or ideology.

  That has been the tension that confronts us and that is what brings 
me to this debate, calling upon my colleagues to support the amendment 
Senator Feingold is offering to strike title II of this legislation.
  Retroactive immunity stands against the very principles Senator 
Feingold has outlined, which I have tried to describe. Under 
retroactive immunity, the law will forbid some of our fellow citizens 
from having their day in court.
  On what basis are we asked to pass retroactive immunity? On trust. 
There are classified documents, we are told, that prove the case beyond 
the shadow of a doubt; but, of course, we are in the allowed to see 
them. I have served in

[[Page S841]]

this body for 27 years. Yet I am not allowed to see these documents. 
Retroactive immunity allows the President to stand up and say: Trust 
me, I know what I am talking about, and you don't.
  There is only one way to settle the issue at stake today. Not simply 
on trust, not the opinion of a handful of individuals--as much as we 
may admire or like them--but in our courts. We are not judges. We are 
members of a legislative body.
  Real judges and juries--whose courts ought to be our pride, not our 
embarrassment--deserve to do their jobs and decide these cases. By 
striking this title of the bill, we would allow them to.
  That is all we are asking. Let's have the courts decide. We are not 
here to assign guilt or innocence. That is not our job as legislators. 
We are here to hold open the courthouse door, to ensure a fair hearing 
to American citizens seeking redress. I, for one, will accept whatever 
verdict results.
  This is not a Democratic or Republican issue; this is a rule-of-law 
issue. It is about striking the right balance between liberty and 
security. I have absolutely rejected, as I said a few moments ago, the 
false dichotomy that tells us to choose one over the other. And If a 
Democratic President were seeking to grant retroactive immunity, I 
would object as stridently and passionately as I am this afternoon. 
This should not be a partisan issue. We should all be in favor of 
allowing our courts to perform their constitutional responsibility to 
determine whether these companies should be held accountable.
  I believe that when surveillance is fully under the rule of law, 
Americans will only be more secure. To claim otherwise is an insult to 
our intelligence, our common sense, and our proud tradition of law.
  I don't know how many colleagues have seen the movie called ``A Man 
For All Seasons.'' It is the story of St. Thomas More, who was the only 
individual in history that I know of who achieved the trifecta of being 
a lawyer, a politician, and a saint--a rare combination in any 
generation. In the movie, St. Thomas More was asked if he would be 
willing to cut down every law in England to get his hands on the devil. 
More answered: Absolutely not. He said:

       When the last law was down, and the Devil turned 'round on 
     you, where would you hide, the laws all being flat? This 
     country is planted thick with laws, from coast to coast--
     Man's laws, not God's! And if you cut them down . . . do you 
     really think you could stand upright in the winds that would 
     blow then?

  Those laws know no secrecy, Madam President, they know no 
distinctions for power or wealth. They live, that is, in openness. And 
when that openness has been defended, when the facts are in light, 
where they belong, I welcome all my colleagues' ideas in the great and 
ongoing debate on security and liberty in this century--a debate in the 
open, and open to us all.
  It can begin by adopting this amendment striking retroactive 
immunity. We can allow the courts to do their jobs to determine whether 
what happened was legal.
  There are those who would argue the telecoms' actions were legal--but 
none of us know that for sure. If we don't adopt this amendment, we 
will never know. Whatever happened will be buried for all of history. 
We will have set the precedent that on the mere word or request of the 
administration--or any future administration--that telecommunications 
companies, or others who can collect millions of volumes of data about 
us, will be allowed to turn it over to the federal government. Maybe 
the next time it will be medical records or financial records that all 
of us would like to think are held private--maybe those records, under 
some argument, will be handed over.
  When does this stop? When do we say there is a legal means by which 
we do this? That has been what FISA has tried to establish for the last 
three decades--to strike that balance between liberty and security. If 
we set a precedent with the rejection of this amendment, we open the 
door, regretfully, for not only this administration but future ones to 
engage in the very practice that would deprive us of that balance 
between liberty and security.
  So when the vote occurs tomorrow on this amendment that Senator 
Feingold and I have offered, I urge my colleagues to step out of their 
partisan roles and consider the example we are setting.
  I am also deeply disappointed that the President suggested he would 
veto the FISA legislation if this amendment passes. The idea that an 
American President would suggest that we ought to put aside the Foreign 
Intelligence Surveillance Act merely to protect a handful of companies 
who seek immunity, and to deny us the opportunity to determine whether 
what they did was legal, seems to go far beyond what we need to be 
doing at this hour, where our security is at risk, as we all know.
  The best way to handle this, in my view, is to accept and adopt this 
amendment and send the FISA bill to the President for signature. I 
believe that despite his warnings to the contrary, he will sign this 
into law. I don't want to believe an American President would put us at 
risk and deny these courts the ability to grant warrants and court 
orders to gather the information we need to keep us secure, all to 
protect a few corporations from lawsuits.
  I have said this repeatedly over the past several months, but it 
deserves repeating. Not all the telephone companies complied with that 
request. If they all had, it might strengthen their arguments. But in 
the end, this is a Republic: the President cannot order us to break the 
law. And the argument that orders from on high excuse illegal behavior 
has been thoroughly debunked.
  Remember, when one telecom, Qwest, asked for a court order to justify 
cooperation with the President's surveillance program, it never 
received one. That ought to be instructive. Why wasn't the court order 
forthcoming? Why didn't the Administration go to the FISA Courts, which 
were created exactly for that purpose? Why did some companies say no 
when others said yes?
  For all of these reasons, and the ones eloquently posed by Senator 
Feingold, we urge our colleagues to accept this amendment. Let the 
courts do their work and determine the legality or illegality of these 
  If we are able to do that, I think we will strengthen our country and 
come closer to maintaining that balance between security and the rule 
of law that generations throughout our Nation's history have struggled 
with, doing their utmost to maintain that healthy balance.
  To reject this amendment, I think, destroys that balance, does great 
damage to it. I think we will regret that in the years to come.
  With that, I yield the floor to others who may want to be heard on 
this amendment. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. LEVIN. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Ms. Stabenow). Without objection, it is so 

                           Amendment No. 3927

  Mr. LEVIN. Madam President, one of the amendments before us is the 
Specter-Whitehouse amendment to title II of the FISA Amendments Act of 
2007. I urge our colleagues to support the Specter-Whitehouse amendment 
for the following reasons:
  Title II of the bill, as currently written, provides retroactive 
immunity for telecommunications providers who disclosed communications 
and other confidential information about their customers at the behest 
of administration officials. These provisions in the bill before the 
Senate require the immediate dismissal of any lawsuit against a 
telecommunications provider based on such disclosure if the Attorney 
General certifies that an appropriate Government official indicated in 
writing to the provider that the activity was, one, authorized by the 
President, and, two, determined to be lawful. It is the words 
``determined to be lawful'' that create the problem. Determined by 
  The way the bill is written, a determination of the Department of 
Justice or intelligence community officials is sufficient to ensure 
immunity even if the courts would conclude that the activity was 
illegal. Dismissal would be

[[Page S842]]

required even if a court would conclude that the disclosure violated 
the constitutional rights of individuals whose personal information was 
illegally disclosed. It would be required even if innocent American 
citizens were damaged by the disclosure or by the compromise of 
confidential personal information.
  The provision in the bill before us granting retroactive immunity is 
not necessary, it is not wise, and it is not fair. Retroactive immunity 
is not necessary to ensure the future cooperation of the 
telecommunications providers who receive legitimate requests for 
information from the intelligence community. In fact, Congress has 
already ensured such cooperation in the Protect America Act adopted 
last August which authorizes the Attorney General or the Director of 
National Intelligence to direct telecommunications providers to 
disclose certain information, and that law provides prospective 
immunity to telecommunications who cooperate with such directives.
  Title I of the bill before us appropriately continues to provide 
prospective immunity to telecommunications providers. Title I states:

       Notwithstanding any other law, no cause of action shall lie 
     in any court against any electronic communication service 
     provider for providing any information, facilities, or 
     assistance in accordance with a directive issued by the 
     Attorney General or the Director of National Intelligence 
     pursuant to the act.

  In light of this prospective immunity, which is appropriately in the 
bill, retroactive immunity is not necessary to ensure the future 
cooperation of telecommunications providers with legitimate requests 
for information from the intelligence community.
  A retroactive immunity is not wise either because it precludes any 
judicial review of these important issues. If private parties engaged 
in illegal activities at the request of senior executive branch 
officials, that may be an appropriate mitigating factor to be 
considered in the courts. But to simply grant immunity retroactively 
may encourage others to engage in illegal activities in the future. 
That is a bad precedent because it should never be an excuse in a free 
society that you acted illegally because Government officials asked you 
to do so.
  That leaves the question of equity for telecommunications providers 
who may have cooperated with administration officials in good faith 
with the assurance that such cooperation was legal and that they were 
helping to safeguard our national security.
  If one had to choose between a known equitable interest of the 
telecommunications providers who was prevailed upon in the aftermath of 
9/11 to assist the Government by disclosing private customer 
communications without first conforming with the clear requirement of 
the FISA law for a warrant approved by the FISA Court before doing so, 
if--if--one had to choose between that equitable interest and the 
perhaps uncertain claims of plaintiffs whose conversations may have 
been eavesdropped upon without their knowledge and with little, if any, 
provable damage, one might reach the conclusion that retroactive 
immunity was an appropriate remedy for the telephone companies.
  But we do not have to make that choice. We can recognize both the 
equitable interest of the companies and the possible claims of our 
citizens, and we can also avoid the terrible precedent of giving 
retroactive immunity to law violators. We can do that by adopting the 
Specter-Whitehouse amendment.
  How can we protect the telecommunications providers from legal 
liability if they acted in good faith at the request of the 
administration without taking the extraordinary step of retroactively 
eliminating any remedy for possible violations of the Constitution and 
the laws of the United States? The Specter-Whitehouse amendment before 
us would accomplish that by immunizing telecommunications providers who 
acted in good faith based on the assurances of appropriate 
administration officials from legal liability and at the same time 
substituting the United States for the telecommunications providers as 
the defendant in lawsuits based on the actions of those providers. That 
substitution would safeguard telecommunications providers from 
liability just as effectively as the retroactive immunity language in 
title II of the bill.
  But unlike the retroactive immunity language of title II the Specter-
Whitehouse amendment would not leave persons who can prove they were 
victims of unlawful or unconstitutional actions without a remedy. On 
the contrary, the Specter-Whitehouse amendment would ensure that any 
such innocent victims retain whatever legal rights they have under 
applicable law, except that the U.S. Government would be substituted 
for the telecommunications providers as the defendant in such lawsuits. 
And it is appropriate that the Government be liable rather than the 
telecommunications providers since the disclosures were allegedly made 
by the providers in these cases at the request of senior executive 
branch officials based on appeals to help safeguard U.S. security and 
assurances that the providers would be protected from liability 
regardless of the requirements of law.
  The argument has been made that we must provide retroactive immunity 
to the telecommunications providers to ensure the cases against them 
are immediately dismissed because if the cases are permitted to 
proceed, vital national security information will be disclosed. Some 
have even taken the position that the mere existence of this 
litigation, even without the disclosure of any information, will 
somehow help the terrorists. But the President has already disclosed 
the existence of the collection program at issue. It has been discussed 
in Congress and in the press. The Director of National Intelligence has 
publicly discussed the program.
  Nor will the continuation into the future of cases against 
telecommunications providers or the U.S. Government, should the 
Government be substituted as the Specter-Whitehouse amendment would 
provide as a defendant, that would not make public sensitive collection 
methods. That is because the courts have numerous tools at their 
disposal to safeguard sensitive classified information from disclosure 
during the course of a trial and courts have used these tools 
throughout our history. Federal courts utilize these tools without 
compromising the national security when our Government chooses to 
prosecute terrorists or spies.

  Indeed, the recently enacted Military Commissions Act provides the 
same tools for the protection of classified information in cases 
brought against alleged terrorists in the military justice system. U.S. 
citizens who are allegedly damaged at the Government's behest surely 
should be given as much protection as alleged terrorists.
  The administration's willingness to utilize these procedures to 
safeguard sensitive classified information in the prosecution of 
alleged terrorists, but not in suits brought for the protection of the 
rights of American citizens, gives the appearance that retroactive 
immunity is being sought under this bill as it now stands, not to 
protect classified information but, rather, to protect the 
administration itself.
  The bottom line is we can protect telecommunications providers from 
liability for unlawful or unconstitutional disclosures made in good 
faith reliance on written assurances by high-ranking executive branch 
officials without retroactively depriving alleged victims of such 
disclosures of any remedy, if they can demonstrate they have been 
damaged by illegal practices. The Specter-Whitehouse amendment would 
enable us to deal fairly with both telecommunications providers and 
with persons who can prove they were damaged by illegal disclosures of 
their personal information. I urge our colleagues to support the 
Specter-Whitehouse amendment as the fair way of protecting both 
telecommunications providers but also protecting what should be a very 
basic principle of our Constitution--you cannot and should not 
needlessly remove a remedy from people who have been injured. To do 
that retroactively runs contrary to everything we believe in this 
Constitution about the rights of American citizens to be protected and 
to have remedies when they are wronged.

                           amendment no. 3941

  Mr. FEINGOLD. Madam President, last week the Senate adopted, by voice 
vote, amendment No. 3941 offered by the vice chairman of the 
Intelligence Committee, which would require the FISA Court to rule on 
challenges to the Government's directives within a specified timeframe. 
I opposed the

[[Page S843]]

amendment because it unnecessarily restricts the court's ability to 
consider important constitutional and statutory issues related to this 
legislation. The amendment limits the time for the court's 
consideration of challenges to directives issued under this law to a 
mere 30 days, unless ``necessary to comport with the due process clause 
of the Fifth Amendment.'' There would be no other basis for the court 
to extend its deliberations to a 31st day.
  This amendment could have serious unintended consequences. There may 
be many decisions that the court can, in fact, make in a relatively 
short period of time. But there may also be issues that the court will 
have to consider that could take longer. There have been many questions 
raised about the meaning of many of the provisions of this bill. The 
court will certainly be required to address some of these complex 
statutory interpretation issues. There have also been serious 
constitutional concerns raised about this bill that the court will need 
to consider.
  This is new legislation that radically changes how surveillance is 
conducted, and there are numerous complex issues that the court will be 
called on to resolve. And, unlike this body, the court will have to 
consider in detail the legality and constitutionality of the law as it 
is implemented, which could involve extensive factual development, as 
well as review of relevant precedent.
  There are many other reasons why the court would want to extend its 
deliberations that would not implicate fifth amendment due process 
rights. A party may seek more time to prepare its pleadings. The court 
may request more information. The Government may wish to prioritize 
other more pressing issues or may have a host of strategic reasons for 
seeking delay; or a crisis or national emergency could require the 
immediate attention of the intelligence personnel and lawyers assigned 
to present the Government's case to the court and could occupy the 
court's time and attention. Under those circumstances, we would surely 
want the court to focus its attention on the emergency at hand. But if 
there were also a pending challenge to a directive that the court must 
decide in just 30 days, it could be faced in a terrible dilemma. And 
only permitting the court to extend its consideration of a challenge if 
a refusal to do so rises to the level of a violation of the fifth 
amendment is far too restrictive.
  I would also think there might be some concern that if the court does 
not have enough time to decide whether to enforce a directive issued by 
the Government, it could very well simply decide not to.
  The Judicial Conference of the United States has made many of these 
same arguments in a letter sent today to Senators Reid and McConnell. 
The conference warns that the amendment could limit the court's ability 
to consider complex issues or could force the court to divert its 
attention from other pressing matters. Indeed, the letter warns that 
``the national security significance of the cases before the FISC means 
there is a chance this provision could force the FISC by statute to 
forego consideration of another matter of paramount importance.''
  This amendment could seriously shortchange the court's ability to 
determine whether the Government is acting legally or whether the bill 
is constitutional, on its face or as implemented in a particular 
situation. For that reason, I opposed this amendment.

                           amendment no. 3913

  Mr. LEAHY. Madam President, the bill we are now considering will 
provide an enormous expansion of the government's ability to conduct 
warrantless surveillance. I support providing our intelligence agencies 
with the flexibility they need to surveil foreign targets that may be 
intending us harm, but we must be similarly vigilant in making certain 
that this surveillance is limited to its intended scope.
  I commend Senator Feingold in crafting an amendment that would 
prohibit what is known as ``reverse targeting'' and would ensure that 
this new surveillance is directed only toward its overseas targets and 
not toward surveillance of innocent Americans without a court order. 
The Intelligence Committee's bill, S. 2248, requires the government to 
seek an order from the FISA Court only when ``the'' purpose of the 
government's acquisition is the targeting of Americans inside of the 
United States. I fear that the government will read into this language 
a loophole and it may justify eavesdropping on American's private 
communications, without any court order, as long as they have some 
interest in an overseas ``target,'' even if a significant purpose of 
the interception is to collect the communications of a person in the 
United States. Is this fear legitimate? I think so, given this 
administration's history of convoluted, disingenuous legal 
interpretation. We must be clear in our language, because we know what 
they will do if we are not.
  Senator Feingold's provision would clarify that if the government 
intercepts the communications of a person overseas but ``a significant 
purpose'' of the surveillance is to collect the communications of the 
U.S. person with whom the person overseas is communicating, the 
government must get a court order. This is an important distinction. In 
light of the sweeping powers we are granting to the government to 
conduct surveillance without up front court review, we must also cabin 
the scope of the government's power to eavesdrop on the communications 
of innocent Americans.

                           amendment no. 3915

   The authorities and procedures in S. 2248 would permit the FISA 
Court to review government targeting and minimization procedures. If, 
however, the Court finds certain aspects of those procedures to be 
inadequate--even grossly inadequate--S. 2248 provides no authority to 
restrict the use of information already collected using those 
procedures. That means that the government would be free to access, 
use, and share information about private communications that was 
collected in violation of the law.
  Senator Feingold's amendment would ensure that the Court has the 
authority to stop a continuation, and perhaps escalation, of the harm 
caused by the government's use of illegal procedures. This provision 
would limit the government's use and dissemination of illegally 
obtained information if the FISA Court later determines that the 
procedures were not reasonably designed to target people outside of the 
United States or to adequately minimize the use of information about 
U.S. persons. It is important to note that, under this provision, if 
the government acts to address the Court's concerns and correct these 
procedures it would then be free to use and disseminate the information 
it acquired.
  This is not a novel application of law under FISA. FISA's existing 
emergency provision holds that if the government begins emergency 
surveillance without a warrant, and the FISA Court then determines the 
surveillance to be unlawful, the government cannot use and disseminate 
the information it acquired except under very limited circumstances. 
Senator Feingold's amendment simply applies these reasonable safeguards 
to the new and broadly expanded authority we are now giving to the 
government. This provision represents a crucial safeguard for the 
protection of Americans' privacy rights.

                           amendment no. 3927

  I strongly oppose the blanket grant of retroactive immunity in the 
Intelligence Committee bill. This administration violated FISA by 
conducting warrantless surveillance for more than 5 years. They got 
caught. If they had not, they would probably still be doing it. In the 
wake of the public disclosure of the President's illegal surveillance 
of Americans, the administration and the telephone companies are being 
sued by citizens who believe their privacy and constitutional rights 
have been violated. Now, the administration is trying to force Congress 
to terminate those lawsuits in order to insulate itself from 
accountability. We should not allow this to happen.
  The administration knows that these lawsuits may be the only way that 
it will ever be called to account for its flagrant disrespect for the 
rule of law. In running its illegal program of warrantless 
surveillance, the administration, relying on legal opinions prepared in 
secret and shown to only a tiny group of like-minded officials, ensured 
the administration received the advice they wanted. Jack Goldsmith, who 
came in briefly to head the Justice Department's Office of Legal 
Counsel described the program as a ``legal

[[Page S844]]

mess.'' This administration does not want a court to have the chance to 
look at this legal mess. Retroactive immunity would assure that they 
get their wish.
  The Judiciary Committee and Intelligence Committee tried for well 
over a year and a half to obtain access to the information that our 
members needed to evaluate the administration's arguments for immunity. 
Indeed, over a year ago Chairman Specter was prepared to proceed to 
subpoena information from the telephone companies in light of the 
administration's stonewalling. It was only just before the Intelligence 
and Judiciary Committees' consideration of this bill that committee 
members finally obtained access to a limited number of these documents. 
Senators who have reviewed the information have drawn very different 
  Now this matter is before all Senators and it is well past time for 
all Members to have access to the information they need to make 
informed judgments about the provisions of these bills. The majority 
leader wrote to the administration stating that Members of the Senate 
need that access. We have had no response--the administration has 
ignored the request. It is clear that they do not want to allow 
Senators to appropriately evaluate these documents and draw their own 
  There are reports in the press that at least one telecommunications 
carrier refused to comply with the administration's request to 
cooperate with the warrantless wiretapping. All Senators should have 
the opportunity to know these facts, so they can make an informed 
judgment about whether there were legitimate legal concerns that other 
cooperating telecommunications companies should have raised. Indeed, if 
other carriers had been more careful in their legal analysis, and had 
raised these concerns, would the administration have had a greater 
incentive to come to the Congress and get the law changed? Would we 
have been spared five long years of illegal behavior by this 
  I have drawn very different conclusions than Senator Rockefeller 
about retroactive immunity. I agree with Senator Specter and many 
others that blanket retroactive immunity, which would end ongoing 
lawsuits by legislative fiat, undermines accountability. Senator 
Specter has been working diligently first as the chairman of the 
Judiciary Committee and now as its ranking member to obtain judicial 
review of the legality of the warrantless wiretapping of Americans from 
2001 into last year. The check and balance the judiciary provides in 
our constitutional democracy has an important role to play and should 
be protected. Judicial review can and should provide a measure of 
  We hear from the administration and some of our colleagues that we 
must grant immunity or the telephone companies will no longer cooperate 
with the Government. Senators should understand that even if we do not 
grant retroactive immunity, telecommunications carriers will still have 
immunity for actions they take in the future. Their cooperation in the 
future will still be required by legal orders and they will not be 
subject to liability for doing what the law requires. If they follow 
the law, they have immunity.
  We have heard some people argue that the telephone companies should 
get immunity because they complied with the Government's requests to 
engage in warrantless surveillance out of patriotism. I do not doubt 
the patriotism of the executives and employees of these companies, but 
this month we learned that these companies cut off wiretaps, including 
wiretaps of terrorists, because the FBI failed to pay its telephone 
bills. How can this administration talk repeatedly, on the one hand, 
about the importance of FISA surveillance, and on the other hand, fail 
to pay its phone bills and jeopardize this critical surveillance. But 
beyond that, the fact that carriers were willing to cut off 
surveillance when they were not paid--presumably some of the same 
carriers that agreed to conduct warrantless surveillance--undercuts the 
argument about their patriotic motives.
  As one former FBI special agent has said, ``It sounds as though the 
telecoms believe it when the FBI says the warrant is in the mail, but 
not when they say the check is in the mail.''
  I believe the rule of law is important in protecting the rights of 
Americans from unlawful surveillance. I do not believe that Congress 
can or should seek to take those rights and those claims from those 
already harmed. Moreover, ending ongoing litigation eliminates perhaps 
the only viable avenue of accountability for the Government's illegal 
actions. Therefore, I say again: I oppose blanket retroactive immunity.
  I do support and will vote for the amendment that Senators Specter 
and Whitehouse will offer on ``substitution.'' This amendment would 
place the Government in the shoes of the private defendants that acted 
at its behest and let it assume full responsibility for illegal 
conduct. The Specter-Whitehouse amendment contains an explicit waiver 
of sovereign immunity, which will allow the lawsuits to proceed against 
the United States, and it makes other changes designed to assure that 
the Government does not have advantages as a defendant that the 
carriers would not have. While I see no need to deal with the issue of 
lawsuits against the providers in this Congress, I believe that 
substitution is a fairer means of dealing with these lawsuits than full 
retroactive immunity, because it would give the plaintiffs their day in 
court, and it would allow for a measure of accountability for the 
administration's actions in the years following 9/11.
  This administration violated FISA by conducting warrantless 
surveillance for more than 5 years. They got caught, and the 
telecommunications carriers got sued. Now, the administration insists 
that those lawsuits be terminated by Congress, so that it does not have 
to answer for its actions. Retroactive immunity does more than let the 
carriers off the hook. It shields this administration from any 
accountability for conducting surveillance outside of the law. It would 
stop dead in their tracks the lawsuits that are now working their way 
through the courts, and leave Americans whose privacy rights have been 
violated with no chance to be made whole. These lawsuits are perhaps 
the only avenue that exists for an outside review of the Government's 
actions. That kind of assessment is critical if our Government is to be 
held accountable. That is why I do not support legislation to terminate 
these legal challenges and I will vote to strike it.
  Madam President, I yield the floor, and I suggest the absence of a 
  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 (Mr. Whitehouse). Without objection, it is so 


[Congressional Record: February 11, 2008 (Senate)]
[Page S845]

                 FISA AMENDMENTS ACT OF 2007--Continued

  Mr. REID. Mr. President, I ask unanimous consent that the Senate 
resume consideration of S. 2248.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. Mr. President, I just finished a conference with the 
distinguished Republican leader, and we both believe this is the best 
way to go. We will, at some time, finish the intelligence conference 
report one way or the other, and following that, we will likely move to 
the Indian health bill to try to complete that.
  We have had a productive day. It is my understanding there are only 
two speakers left on the FISA legislation, and that is Senator Dodd and 
Senator Specter. If there are others, they should notify the cloakroom 
  We have eight votes we are going to do tomorrow, and staff is working 
on a consent to get to those votes. If we finish them, regardless, it 
would be better if we do this by consent. We are going to start the 
votes early in the morning. There will be no morning business tomorrow. 
We have eight votes to do tomorrow and complete a lot of talk on this 
bill, and that way we can send it to the House very quickly and they 
will come back and tell us something, we hope, by the end of the week.
  We all hope it is not necessary that we have an extension, but time 
will tell.
  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 ask unanimous consent that when the Senate 
resumes S. 2248 on Tuesday morning, February 12, the sequence of votes 
on remaining amendments occur in the following order: Whitehouse 3920, 
subject to a 60-vote threshold; Feinstein 3910, subject to a 60-vote 
threshold; Feingold 3979; Dodd 3907; Feingold 3912; Bond-Rockefeller 
3938, as modified; Specter-Whitehouse 3927; Feinstein 3919, with a 60-
vote threshold; and that each leader control a total of 10 minutes of 
debate time to be used prior to any of the votes; that the provisions 
of the previous order governing debate limitations and vote limitations 
remain in effect.
  We are going to do as many of these as we can before the weekly party 
conferences. With a little bit of luck, we can finish all of them.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. 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. DURBIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


[Congressional Record: February 11, 2008 (Senate)]
[Page S862-S878]


                           Amendment No. 3927

  Mr. SPECTER. Mr. President, I have sought recognition to comment on a 
pending amendment sponsored by Senator Whitehouse and myself. I am 
delighted to see Senator Whitehouse occupying the chair. I have a 
receptive, though a limited, audience.
  I begin by thanking the Senate personnel for staying late. Monday is 
a day when I customarily travel the State--Scranton, Harrisburg--and 
arrive late in the day. I am pleased to see Senator Dodd is also 
speaking so that my late arrival is not the sole cause. But we do have 
to work late because the majority leader has scheduled votes on these 
issues tomorrow. I wanted an opportunity to supplement earlier 
statements which I made on this issue because I believe it is an 
important issue on which the Senate needs to focus.
  The legislation and oversight and judicial review since 9/11 have 
provided a historic confrontation among the three branches of 
Government on the basic doctrine of separation of powers. When I say it 
is historic, I do not believe that is an overstatement. There is no 
doubt that the events of 9/11 require a vigorous response by the United 
States to fight terrorism. The brutal, heinous murder of 3,000 
Americans and the continuing threat of al-Qaida worldwide require that 
we fight terrorism with great vigor. At the same time, it is important 
that constitutional rights be maintained. The fact is that the Congress 
has been very ineffective in limiting the expansion of Executive power. 
Only the courts have been able to maintain a balance.
  The specific issue involves the effort to give the telephone 
companies retroactive immunity and foreclose some 40 lawsuits in some 
Federal court which are pending at the present time. There is no doubt 
that the information reportedly obtained by the telephone companies for 
national security is vital and needs to be maintained. But there is a 
way to keep that information flowing and still maintain the 
constitutional balance by implementing the amendment which Senator 
Whitehouse, the Presiding Officer, and I have introduced, the essence 
of which is to substitute the U.S. Government as the party defendant.
  In that situation, the Government would have the identical defenses 
the telephone companies now have--no more, no less. For example, 
customarily the Federal Government has the defense of sovereign 
immunity. You can't sue the Federal Government unless the Government 
consents or unless the Congress of the United States says

[[Page S863]]

you can sue the Government. The Congress of the United States is the 
final determiner of that; of course, with Presidential signature or 
with an override, if the President vetoes.
  So in this situation, the Government being substituted for the 
telephone companies would not have the governmental immunity defense 
because the telephone companies do not have it. The Government would 
have the state secrets defense because it has intervened in the cases 
against the telephone companies to assert the defense of state secrets, 
so that if state secrets are involved, that may block the plaintiffs' 
cases. Under our amendment the Government would continue to have the 
availability of a state secrets defense.
  I doubt very much there will be any monetary awards in these cases, 
but that is not for me to decide. That is for the judicial process to 
decide, to run its course.
  When I say the legislative branch has not been successful in 
oversight in limiting the expansion of Executive power, I do so because 
of what has happened with the terrorist surveillance program.
  The Foreign Intelligence Surveillance Act is an explicit statute 
which is the law of the land, explicitly stating that wiretapping can 
occur only with judicial authority. The tradition is for the Government 
to present an affidavit containing probable cause to warrant the 
wiretap that goes before a judge. The judge reviews it. If probable 
cause is present, then there may be an invasion of privacy under our 
Constitution with that constitutional safeguard of a neutral 

  The President has taken the position that he does not have to be 
bound by the Foreign Intelligence Surveillance Act because of his 
article II powers under the Constitution. He is arguing that the 
statute cannot affect the President's constitutional authority, and he 
is correct as a principle of law. But the question is whether he has 
that authority. And the terrorist surveillance program was secret from 
the time it was put into effect shortly after 9/11/2001 until mid-
December 2005, when the Senate was in the midst of the final day of 
debate on the PATRIOT Act re-authorization, which was to give the law 
enforcement authorities broader power.
  I chaired the Judiciary Committee at that time and was arguing to 
move ahead with the PATRIOT Act re-authorization when that morning the 
news came across that there had been a secret program in effect. That 
scuttled our efforts to get the PATRIOT Act passed that day, with the 
comment being made that some were prepared to vote for the PATRIOT Act 
re-authorization until they found out about this secret program they 
hadn't known about.
  A long time has passed since December 2005. That matter is still tied 
up in the courts. But the courts, at least, are available to make a 
decision on that ultimately--it may take some time, but to make a 
decision on it.
  Similarly, the administration, the President has ignored the National 
Security Act of 1947 which explicitly states that the executive branch 
must give notice to the intelligence committees of the House and Senate 
where programs are carried out like the terrorist surveillance program. 
The President did not follow that statute. Again, the underlying 
contention is that he has power under article II so that he doesn't 
have to follow the statute.
  Finally, he did make those matters available. He did so on the eve of 
the confirmation of General Hayden as head of the Central Intelligence 
Agency. So finally, under political pressure--he couldn't get General 
Hayden confirmed unless he made them available--he did so.
  We have had other illustrations. We have had the signing statements 
where the President issues a statement when he signs legislation into 
law which modifies what Congress has passed.
  I will be very specific. The Constitution provides that each House 
passes legislation. There is a conference submitted to the President. 
He either signs it or vetoes it. But when the President got the PATRIOT 
Act re-authorization with provisions which had been negotiated as to 
Judiciary Committee oversight on how those law enforcement powers could 
be carried out, the President issued a signing statement--and this had 
been negotiated between the Judiciary Committee and the President's 
employees--the President issued a signing statement and changed the 
thrust of the statute.
  In a widely publicized matter involving interrogation techniques, the 
Senate passed, on a 90-to-9 vote, limitations on Executive power in the 
Detainee Treatment Act. There was a meeting between President Bush and 
Senator McCain, author of the provision, limiting executive authority. 
We passed the bill, and the President signed it but with reservation 
that his executive authority under article II did not deprive him of 
authority to handle the situation as he chose. But in the midst of all 
this, the courts have been effective. The courts have limited Executive 
  In the case of Hamdan v. Rumsfeld, the Supreme Court held that the 
President's military commissions violated the Uniform Code of Military 
Justice and lacked any congressional authorization. In short, the Court 
held the President cannot establish a military commission to try Hamdan 
unless Congress granted him the authority to do so.

  In Hamdi v. Rumsfeld, the Supreme Court said that due process 
requires a citizen held as an enemy combatant be given a meaningful 
opportunity to contest the factual basis for that detention before a 
neutral decisionmaker.
  In the celebrated case of Rasul v. Bush, the Supreme Court held that 
the Federal habeas corpus statute gave district courts jurisdiction to 
hear challenges by aliens held at Guantanamo Bay.
  In Doe v. Gonzales in September of last year, the U.S. District Court 
for the Southern District of New York struck down the permanent gag 
orders issued with national security letters as a violation of the 
First Amendment.
  In Hepting v. AT&T, Chief Judge Vaughn Walker of the Northern 
District of California held that the publicly available information 
concerning the terrorist surveillance program was not subject to the 
state secrets defense.
  In the very heavily publicized case of Padilla, the fourth circuit 
initially held that the executive had the authority to hold Padilla as 
an enemy combatant in September of 2005. Then when Padilla petitioned 
the Supreme Court for certiorari, it looked as if that might be 
overturned. The Government moved for authorization to transfer Padilla 
and to vacate the decision. They anticipated an unfavorable decision 
and they tried to moot it out; that is, render it meaningless. Judge 
Luttig, writing for the fourth circuit, was very strong in rejecting 
the Government's position, saying this:

       Because we believe that the transfer of Padilla and the 
     withdrawal of our opinion at the government's request while 
     the Supreme Court is reviewing this court's decision of 
     September 9 would compound what is, in the absence of 
     explanation, at least an appearance that the government may 
     be attempting to avoid consideration of our decision by the 
     Supreme Court, and also because we believe that this case 
     presents an issue of such especial national importance as to 
     warrant final consideration by that court--

  That is, the Supreme Court--

     we deny both the motion and the suggestion.

  Pretty strong language, telling the Government what they can and what 
they can't do.
  The Government is not going to listen to the Congress, but the 
Government listens to the court.
  When the issue arose as to the destruction of the CIA tapes, Senator 
Leahy and I wrote the Attorney General asking for information as to 
what had happened, and the Attorney General wrote back and said: We are 
not going to give you any information at this time. But we got no 
information. Then the word was that it was political, what was being 
done. Then a Federal district court ordered the Government to file a 
report with the court as to what had happened on the destruction of the 
CIA tapes. Well, nobody said the court decision was political. You 
can't challenge the judicial decision except to take an appeal, and 
that is the process we follow.
  I recently made a trip to Pakistan. Congressman Patrick Kennedy and I 
went to Pakistan to take a look at what was going on there because 
Pakistan is so important. The country has nuclear weapons but a very 
unstable government. We met with President Musharraf. We were scheduled 
to meet with Benazir Bhutto at 9 p.m. on December 27. While we were 
preparing for

[[Page S864]]

the meeting--she had scheduled it at 9 o'clock in the evening because 
she had a full day of campaign activities. While we were preparing for 
the meeting, we found out about 6:30, 7 o'clock, she had been 
assassinated, which was a terrible blow, not only on a personal level. 
I had come to know her to some extent when she was Prime Minister of 
Pakistan. But she had the potential as an extraordinary political 
figure to unify Pakistan. She had a remarkable educational background. 
She was educated at Harvard, also at Oxford; very glamorous, movie star 
beautiful, a great political figure with a chance to unify the country. 
Now we start from scratch.
  Congressman Kennedy and I questioned President Musharraf about what 
he was doing. He had gotten $10 million since 9/11 to act against al-
Qaida. Why hadn't Osama bin Laden been captured? There were a lot of 
indications that the money was not being used for the purpose for which 
it was appropriated. President Musharraf said to Congressman Kennedy 
and me that he didn't like the conditionality, and we pointed out to 
him that is the way we function. We don't give $10 million for use by 
President Musharraf any way he likes. Then we raised a question about 
what President Musharraf was doing with the Supreme Court. He held the 
Chief Justice in house arrest. He dismissed many of the justices. He 
appointed a favorable Supreme Court. Well, the United States is not 
Pakistan. In Pakistan, the chief executive, President Musharraf, tells 
the Supreme Court what to do. He suspends the Chief Justice. He fires 
half of the court.
  In the United States, under our checks and balances, the President of 
the United States listens to what the Supreme Court of the United 
States says. A fundamental of our society is the separation of powers. 
That is the very basis of how we function in the United States, with 
the executive having certain powers, the Congress having certain 
powers, and the Court having certain powers. Regrettably, the evidence 
is conclusive that the Congress has been ineffective in congressional 
oversight. The protocol is the chairman of the Judiciary Committee and 
the ranking member are told about what is happening on serious 
constitutional issues. I was chairman of the Judiciary Committee when 
the terrorist surveillance program was in operation, and neither the 
ranking member, Senator Leahy, nor I, were told about what was going 
on. The President is taking the position that he is not bound by 
statute, and he may be right. He may be right, but in our society, the 
courts have to make that decision.

  I believe it would be a serious step to close down the courts where 
some 40 cases are pending. Let them go through the judicial process. 
Now if we had a choice of having the benefit of what the telephone 
companies are doing and closing down the courts, that might be one 
thing. But Senator Whitehouse and I have structured an amendment, 
cosponsored by other Senators, to have both of those benefits 
operative. We can maintain the telephone companies providing whatever 
information they are providing, and at the same time keep the courts 
open by substituting the Government as the party defendant.
  We are continuing in the midst of an historic confrontation. It is 
testing the mettle of our constitutional process. It is testing the 
mettle of our constitutional process because of the importance of being 
vigorous in fighting al-Qaida. The telephone companies have been good 
citizens and they ought not to be held liable for whatever it is they 
have done. But the Government can step in, and if there are verdicts 
which, as I say, I very much doubt, it is a cost of national defense. 
It ought to be paid by the Treasury of the United States, and the 
courts ought to be kept open.
  Senator Dodd is about to address the Chamber. I know he is opposed to 
granting retroactive immunity, and he has a very powerful argument, and 
may the Record show he is nodding in the affirmative. That is what we 
lawyers do when we have a little support, even if it is only a nod of 
the head or a gesture. I greatly admire what Senator Dodd is doing here 
and what he has done since he was elected to the Senate in 1980. He and 
Senator Alan Dixon came to the Senate at the same time as two newly 
elected Senators on the Democratic side of the aisle. They were 
outnumbered by Republican Senators who were elected, 16 of us for that 
election, 16 to 2. But now Senator Dodd has narrowed the odds and only 
Senator Grassley and I remain of those 16, so it is only 2 to 1. Of 
course, when it was 2 to 16 it was a fair fight, and when it is 1 to 2, 
Senator Dodd may have the advantage. Who knows. I say that only in 
jest. But we are about to hear some strong arguments and some real 
oratory on these issues.
  But we don't have to make a choice between having the information and 
having the courts open. You can do both if the amendment which Senator 
Whitehouse and I have offered is adopted.
  I thank the Chair and yield the floor and defer to my distinguished 
colleague from Connecticut.
  The PRESIDING OFFICER. The Senator from Connecticut is recognized.
  Mr. DODD. Mr. President, first, let me thank my good friend from 
Pennsylvania, whom I always enjoy listening to. I enjoyed particularly 
hearing his comments about President Musharraf and Benazir Bhutto, who 
I had the privilege and pleasure of knowing for some time over the last 
20 years. As do all of us here, I care deeply about what happens in 
Pakistan, and I admire remarkable leadership. I was stricken by her 
loss and the tragic way in which she lost her life in her effort to 
bring democracy to her country. So I associate myself with the remarks 
of Senator Specter who was there, I know. In fact, I listened with 
great interest to his comments and thoughts at the time when he and 
Congressman Patrick Kennedy were there on a mission together. So I once 
again thank him.
  I know he talked about our arrival some 27 years ago, when the two of 
us arrived here, and it is true there were 16 Republicans and two 
Democrats. I always like to point out that there are two fine 
Republicans still here, Senator Grassley and Senator Specter, and 50 
percent of the Democrats who were elected that year are still in this 
Chamber. So I remain of the two of us, Alan Dixon being the other 
  I look up and I see the Presiding Officer. Any time I get up to 
address this issue, the distinguished Senator from Rhode Island is the 
Presiding Officer. He has heard my thoughts on this issue now since 
December. I think it has been almost 20 hours I have spoken on the 
subject matter of the Foreign Intelligence Surveillance Act and the 
issue of retroactive immunity. I will be trying to convince my 
colleagues to vote against cloture tomorrow so we can force the 
committees to go back and adopt the Judiciary Committee approach rather 
than the one adopted by the Intelligence Committee which gives 
retroactive immunity to the telecom industry.
  I note as well that the House, the other body, in its consideration 
of this matter, agreed with the Judiciary Committee and did not include 
retroactive immunity in their Foreign Intelligence Surveillance Act 
amendments. The House reached the conclusion that the retroactive 
immunity was not warranted, that the courts should be given the 
opportunity to decide the legality or illegality of the telecom 
industry's decision to agree to the administration's request to allow 
the unfettered surveillance of millions of telephone calls, faxes, and 
  Senator Feingold of Wisconsin and I have offered an amendment to 
strike section 2 of the bill, which would then put the legislation 
roughly on parity with the House-passed legislation and deliver that to 
the President. The President has said: If you do that, I will veto the 
bill, which I regret deeply. The idea that you veto all of the other 
amendments dealing with foreign intelligence because you didn't provide 
retroactive immunity to a handful of telephone companies is rather 
breathtaking when you consider the vulnerability that can pose and the 
inability of us to collect the important surveillance, the intelligence 
we need to keep our country secure and safe.
  Mr. President, I am not normally accustomed to engaging in lengthy 
conversations about any subject. Certainly it is the privilege and 
right of every Senator to engage in extended debate on a subject about 
which they care passionately. I cannot think of another occasion in the 
last 20 years, 25 years, when I have engaged in extended debate on any 
subject matter. It doesn't suggest there haven't been moments

[[Page S865]]

when I thought it was warranted, and others certainly provided that 
opportunity or we resolved the matters prior to using that tool that 
has been available to every Member of this Chamber since the founding 
of our Republic. But I care deeply about this issue. It is not just a 
passing issue; it is not just one section of a bill.
  It goes far beyond the words or language of even the companies 
involved here. It goes to the very heart of who we are as a nation, as 
a people. Our willingness or ability to understand the value and 
importance of the rule of law is an issue that transcends any other 
issue we grapple with, the understanding of how important it is to 
protect and defend the rule of law, our Constitution, to guarantee the 
rights and liberties of every citizen of our country.
  Tonight, I will engage in a rather lengthy conversation about this 
issue, with my apologies to the staff and others who have to spend time 
listening to this conversation. But I want people to know how important 
this issue is. This is very important. It doesn't get any more 
important than this one as to whether millions of Americans' telephone 
conversations, e-mails, and faxes over the past 5 years were listened 
to, eavesdropping that would still be ongoing were it not for disclosed 
reports by journalists and a whistleblower that revealed this program. 
It would still be ongoing, without a court order and without a warrant. 
That is dangerous.
  The very rationale which gave birth to the FISA some three decades 
ago was specifically designed to deal with the very fact situation that 
causes me to rise and talk about this subject matter this evening. FISA 
intended to balance two legitimate issues--gathering information to 
keep us secure, while protecting the rights and liberties of every 
single American citizen against an unwarranted invasion of their 
privacy. It has never been easy to maintain that balance. It is never 
perfect, as I said earlier this afternoon, but it ought to be our 
common goal, regardless of party and ideology, to do our very best to 
strike that balance. That is what this issue is, and that is why it is 
so important.
  If we set the precedent by a vote tomorrow that keeps this provision 
in the bill, and it remains so in the conference with the House of 
Representatives, we will be setting a precedent which, I suspect, 
future administrations may point to under a different fact situation, 
at a different hour, at a different time, when they may decide it is 
not in their interest to go to a FISA Court. The next request by an 
administration to provide information may be medical or financial or 
highly personal information, and they will point to a time when the 
Senate was given the opportunity to insist that a series of telephone 
companies go to the courts of this country to determine whether they 
did the legal thing by turning over information, and the Senate said: 
No, we are going to grant retroactive immunity.
  We will never determine whether you had the right to do so, and 
implicitly it would sanction the activity by our refusal to strike the 
language granting the immunity. That is what is at stake in the vote 
tomorrow, if we are unable to defeat cloture.
  That is why I am determined to do everything I can to convince my 
colleagues of an alternative course. So I urge my colleagues, in the 
strongest terms that I can, to vote to strip the retroactive immunity 
from this bill and, if it is not stripped, to vote against cloture.
  Not only would this bill ratify a domestic spying regime that has 
already concentrated far too much unaccountable power in the 
President's hands, in its current form it places above the law the 
telecommunications companies that may have violated the privacy and 
trust of millions of American citizens.
  In December, I opposed retroactive immunity on the Senate floor for 
some 10 hours in this Chamber. In the weeks since then, I have 
continued to speak out against it.
  Unwarranted domestic spying didn't happen in a panic or short-term 
emergency--not for a week or a month or even a year. If it had, I might 
not be here this evening. But the spying went on, relentlessly, for 
more than five years. And if the press didn't expose it, I imagine it 
would still be happening today.
  I might not be here either if it had been the first offense of a new 
administration. Maybe not if it even had been the second or third, I 
might add. I am here this evening because after offense after offense 
after offense, my frustration has found its breaking point. I am here 
this evening because of a pattern of continual abuses against civil 
liberties and the rule of law. When faced with that pattern, we should 
not act in the interest of the Democratic Party or the Republican 
Party. We should act in the interest of the Constitution of the United 
States because we are, above anything else, its temporary custodians. 
If these abuses had been committed by a President of my own party, I 
would have opposed them just as passionately as I do this evening.
  I am here tonight because of the latest link in that long chain of 
abuse. It is alleged that giant telecom corporations worked with our 
Government to compile America's private domestic communications records 
into a database of enormous scale and scope. Secretly and without a 
warrant, these corporations are alleged to have spied on their own 
American customers.
  Here is only one of the most egregious examples: According to the 
Electronic Frontier Foundation:

       Clear, firsthand whistleblower documentary evidence 
     [states] . . . that for year on end, every e-mail, every text 
     message, and every phone call carried over the massive fiber 
     optic links of sixteen separate companies routed through 
     AT&T's Internet hub in San Francisco--hundreds of millions of 
     private, domestic communications--have been . . . copied in 
     their entirety by AT&T and knowingly diverted wholesale by 
     means of multiple ``splitters'' into a secret room controlled 
     exclusively by the NSA.

  The phone calls of millions of Americans diverted into a secret room 
controlled by the NSA. That allegation still needs to be proven in a 
court of law. But before that happens, there is an even simpler 
question: What do you see in it?
  If you only see cables and computers there, the whole thing seems 
almost harmless. Certainly nothing to get worked up about--a routine 
security sweep and a routine piece of legislation authorizing it. If 
that is what you see in the NSA's secret room, I imagine you will vote 
to extend that immunity.
  If you see a vast dragnet for millions of Americans' private 
conversations, conducted by a Government agency without a warrant, then 
I believe you will recognize what is at stake. You will see that what 
is at stake is the sanctity of the law and the sanctity of our privacy 
as American citizens. You will then oppose this retroactive immunity.
  Maybe that sounds overdramatic to some of my colleagues. They will 
ask: What does it matter, at the end of the day, if a few corporations 
are sued? They will say: This is a small issue, an isolated case. The 
law is still safe and sound.
  I find that view profoundly wrong. But I will give them this: As long 
as they keep this small, they win. As long as they keep this case 
isolated and technical, they win. As long as it is about a few 
lawsuits, and nothing more, they win. They are counting on the American 
people to see nothing bigger than that.
  I am counting on them to see more and to fear less. So much more is 
at stake than a few phone calls, a few companies, and a few lawsuits. 
Mr. President, equal justice is at stake--justice that makes no 
exceptions. Openness is at stake--an open debate on security and 
liberty, and an end to warrantless, groundless spying. Retroactive 
immunity stands against those principles.
  It doesn't say: I trust the American people; I trust the courts and 
judges and juries to come to just decisions. Retroactive immunity says: 
Trust me.
  There are classified documents, we are told, that prove the case for 
retroactive immunity beyond a shadow of a doubt. But we are not allowed 
to see them. I have served in this body for more than a quarter 
century, and I am not allowed to see these documents at all. I am told 
to trust somebody, believe people when they stand up and tell you 
exactly what is here. Neither are the majority of my colleagues allowed 
to see them. We are left entirely in the dark to draw the conclusion 
that there is nothing to be concerned about. The courts don't need to 
look at this.
  Obviously, I cannot speak for my colleagues, but I would never take 

[[Page S866]]

me'' for an answer--not even in the best of times.
  ``Trust me.'' It is the offer to hide ourselves in the waiting arms 
of the rule of men. I cannot put it better than this:

       ``Trust me'' government is government that asks that we 
     concentrate our hopes and dreams on one man; that we trust 
     him to do what's best for us. My view of government places 
     trust not in one person or one party, but in those values 
     that transcend persons and parties.

  Those words were spoken by Ronald Reagan in 1980, the former 
President of the United States. Those words are every bit as true 
today, even if some have chosen to forget them. But times of threat and 
fear blur our view of transcendent values; and those who would exploit 
those times urge us to save our skins at any cost.
  The rule of law has rarely been so fragile. It has really seemed less 
compelling. What, after all, does the law give us? It has no parades, 
no slogans; it lives in books and precedents. It cannot entertain us or 
captivate us or soothe our deepest fears. When set against everything 
the rule of men has to offer, the rule of law is mute.
  That is the precise advantage seized upon, in all times, by the law's 

       It is a universal truth that the loss of liberty at home is 
     to be charged to the provisions against danger . . . from 

  Those are the words of James Madison, and they are worthy of 

       It is a universal truth that the loss of liberty at home is 
     to be charged to the provisions against danger . . . from 

  James Madison, the father of the Constitution, made that prediction 
more than two centuries ago. With the passage of this bill, his words 
would be one step closer to coming true. So it has never been more 
essential that we lend our voices to the law and speak on its behalf.
  This is our defining question, the question that confronts every 
generation of Americans since the founding of our Republic: the rule of 
law, or the rule of men?
  How many times must we get the wrong answer?
  To those who say this is just about a few telecoms, I answer that 
this is about contempt for the rule of law, large and small.
  This is about the Justice Department turning our Nation's highest law 
enforcement officers into patronage plums, and turning the impartial 
work of indictments and trials into the machinations of politics.
  This is about Alberto Gonzales coming before Congress to give us 
testimony that was, at best, wrong, and, at worst, perjury.
  This is about Congress handing the President the power to designate 
any individual he wants an ``unlawful enemy combatant,'' hold that 
individual indefinitely, and take away his or her rights to habeas 
corpus--the 700-year-old right to challenge your detention. If you 
think the Military Commissions Act struck at the heart of the 
Constitution, well, it struck at the Magna Carta while it was at it.
  If you think this only threatens a few of us, you should understand 
that the writ of habeas corpus belongs to all of us. It allows anyone 
to challenge their detention. Rolling back habeas corpus endangers us 
all. Without a day in court, how can you prove that you are entitled to 
a trial? How can you prove that you are innocent? In fact, without a 
day in court, how can you let anybody know what you have been detained 
for at all?
  The Military Commission Act also gave President Bush the power some 
say he wanted most of all: the power to get information out of 
suspected terrorists--by almost any means. The power to use evidence 
potentially gained from torture.
  This is about torture--officially sanctioned torture. As a result of 
decisions made at the highest levels of our Government, America is 
making itself known to the world with stories like this one: A prisoner 
at Guantanamo--to take one example out of hundreds--was deprived of 
sleep for over 55 days, a month and 3 weeks. Some nights he was doused 
with water or blasted with air conditioning. After week after week of 
this delirious, shivering wakefulness, on the verge of death from 
hypothermia, doctors strapped him to a chair--doctors, healers who took 
the Hippocratic oath to ``do no harm''--pumped him full of three bags 
of medical saline, brought him back from death, and sent him back to 
his interrogators.
  To the generation coming of age around the world in this decade, that 
is America. Not Normandy, not the Marshall Plan, not Nuremberg. 
  This is about the CIA destroying tapes containing the evidence of 
harsh interrogations--about the administration covering its tracks in a 
way more suited to a banana republic than to the home of freedom.
  This is about waterboarding, a technique invented by the Spanish 
Inquisition, perfected by the Khmer Rouge, and in between, banned--
originally banned for excessive cruelty--by the Gestapo!
  Waterboarding's not torture? Listen to the words of Malcolm Nance, a 
26-year expert in intelligence and counterterrorism, a combat veteran, 
and former Chief of Training at the U.S. Navy Survival, Evasion, 
Resistance and Escape School.
  To those who say that this is just about a few telecoms, I answer: 
This is about contempt for the law, large and small.
  This is about the Justice Department turning our Nation's highest law 
enforcement offices into patronage plums, and turning the impartial 
work of indictments and trials into the machinations of politics.
  This is about Alberto Gonzales coming before Congress to give us 
testimony that was at best, wrong--and at worst, perjury.
  This is about Congress handing the President the power to designate 
any individual he wants an ``unlawful enemy combatant,'' hold him 
indefinitely, and take away his right to habeas corpus--the 700-year-
old right to challenge your detention. If you think that the Military 
Commissions Act struck at the heart of the Constitution, you would be 
understating things--it struck at the Magna Carta while it was at it.
  And if you think that this only threatens a few of us, you should 
understand that the writ of habeas corpus belongs to all of us--it 
allows anyone to challenge their detention. Rolling back habeas rights 
endangers us all: Without a day in court, how can you prove that you 
are entitled to a trial? How can you prove that you are innocent? In 
fact, without a day in court, how can you let anyone know that you have 
been detained at all?
  While training American soldiers to resist interrogation, he writes:

       I have personally led, witnessed and supervised 
     waterboarding of hundreds of people. . . . Unless you have 
     been strapped down to the board, have endured the agonizing 
     feeling of the water overpowering your gag reflex, and then 
     feel your throat open and allow pint after pint of water to 
     involuntarily fill your lungs, you will not know the meaning 
     of the word. . . .
       It does not simulate drowning, as the lungs are actually 
     filling with water. The victim is drowning. How much the 
     victim is to drown depends on the desired result . . . and 
     the obstinacy of the subject.
       Waterboarding is slow motion suffocation . . . usually the 
     person goes into hysterics on the board. . . . When done 
     right it is controlled death.

  In spite of all that, last week the White House declared that 
waterboarding is not torture, that waterboarding is legal, and that, if 
it chooses, America will waterboard again.
  This is about Michael Mukasey coming before the Senate and defending 
the President's power to openly break the law. When he came to the 
Senate before his confirmation, Mr. Mukasey was asked bluntly and 
plainly: Is waterboarding constitutional? Mr. Mukasey replied with a 
head-scratching tautology:

       If waterboarding is torture, torture is not constitutional.

  Surely we can expect a little more insight from someone so famously 
well versed in national security law. But Mr. Mukasey pressed on with 
the obstinacy of a witness pleading the Fifth:

       If it's torture. . . . If it amounts to torture, it is not 

  And that is the best this noted jurist, this legal scholar, this 
longtime judge had to offer on the defining moral issue of this 
Presidency: claims of ignorance. Word games.
  And again last month, he refused categorically to denounce 
waterboarding. In fact, Mr. Mukasey was asked the easiest question we 
have in a democracy: Can the President openly break

[[Page S867]]

the law? Can he--as we know he has done already--order warrantless 
wiretapping, ignore the will of Congress, and then hide behind nebulous 
powers he claims to find in the Constitution?
  Mr. Mukasey's response: The President has ``the authority to defend 
the country.''
  And in one swoop, the Attorney General conceded to the President 
nearly unlimited power, as long as he finds a lawyer willing to stuff 
his actions into the boundless rubric of ``defending the country.'' 
Unlimited power to defend the country, to protect us as one man sees 
fit, even if that means listening to our phone calls, even if that 
means holding some of us indefinitely.
  This is about extraordinary rendition--outsourced torture. It is 
about men this administration prefer we did not know exist. But we do 
  One was a Syrian immigrant raising his family in Canada as a citizen. 
He wrote computer code for a company called Math Works. He was planning 
to start his own tech business. On a trip through New York's JFK 
Airport, he was arrested by U.S. Federal agents. They shackled him and 
bundled him into a private CIA plane which flew him across the Atlantic 
Ocean to Syria.
  This man spent the next 10 months and 10 days in a Syrian prison. His 
cell was 3 feet wide, the size of a grave. Some 300 days passed alone 
in that cell, with a bowl for his toilet and another bowl for his 
water, and the door only opened so he could go wash himself once a 
week, though it may have been more or less because the cell was dark 
and he lost track of time.
  The door only opened for one reason: for interrogators who asked him, 
again and again, about al-Qaida. Here is how it was described:

       The interrogator said, ``Do you know what this is?'' I 
     said, ``Yes, it's a cable,'' and he told me, ``Open your 
     right hand.'' I opened my right hand, and he hit me like 
     crazy. It was so painful, and of course I started crying, and 
     then he told me to open my left hand, and I opened it, and he 
     missed, then hit my wrist. And then he asked me questions. If 
     he does not think you are telling the truth, then he hits 

  The jail and the torturers were Syrian, but America sent this man 
there with full knowledge of what would happen to him because it was 
part of a longstanding secret program of ``extraordinary rendition.'' 
America was convinced that he was a terrorist and wanted the truth 
beaten out of him.
  No charges were ever filed against him. His adopted nation's 
government--Canada, one of our strongest NATO allies--cleared him of 
all wrongdoing after a yearlong investigation and awarded him more than 
$10 million in government compensation for his immense pain and 
suffering--but not before he was tortured for 10 months in a cell the 
size of a grave. Our own Government, I note, has refused to even 
acknowledge that his case exists.
  It is about a German citizen living in the city of Ulm with his wife 
and four children. On a bus trip through Eastern Europe, he was pulled 
off at a border crossing by armed guards and held for 3 weeks in a 
hotel room where he was beaten regularly. At the end of 3 weeks, he was 
drugged and shipped on a cargo plane to Kabul, Afghanistan.
  For 5 months he was held in the Salt Pit, a secret American prison 
staffed by Afghan guards. All he had to drink was stagnant water from a 
filthy bottle. Again and again, masked men interrogated him about al-
Qaida. And finally, he says, they raped him.
  He was released in May of 2004. Scientific testing confirmed his 
story of malnourishment, and the Chancellor of Germany publicly 
acknowledged that he was wrongfully held. What was his crime? Having 
the same name as a suspected terrorist. Again, our own Government has 
refused to even acknowledge this case exists.

  There are not enough words in the world to cover the facts. If you 
would like to define torture out of existence, be my guest. If you 
would rather use a Washington euphemism--``tough questioning,'' 
``enhanced interrogation''--feel free. Feel free to talk about 
``fraternity hazing'' such as Rush Limbaugh did, or to use a favorite 
term of Vice President Cheney, ``a dunk in the water,'' as he described 
waterboarding. Call it whatever you like. And when you are through with 
all of your evasions, the facts will still be waiting for you--the fact 
of waterboarding, ``controlled death,'' the fact of ``outsourced 
torture,'' the fact of secret prisons, the fact of month-long sleep 
deprivation, the fact of the President's personal power to hold 
whomever he likes for as long as he would like.
  Have I gone wildly off the topic? Have I brought up a dozen unrelated 
issues? I don't think, Mr. President--I don't think I have at all.
  We are deceiving our ourselves when we talk about the U.S. attorneys 
issue, the habeas issue, the torture issue, the rendition issue, the 
secrecy issue. As if each one were an isolated case! As if each one 
were an accident! When we speak of them as isolated, we are keeping our 
politics cripplingly small, and as long as we keep them small, the rule 
of men is winning. There is only one issue here--only one. It is the 
law issue, the rule of law. Does the President serve the law or does 
the law serve the President?
  Each insult to our Constitution comes from the same source. Each 
springs from the same mindset. And if we attack this contempt for the 
law at any point, we will wound it at all points.
  That is why I am here this evening. Retroactive immunity is on the 
table today, but also at issue is the entire ideology that justifies 
it, the same ideology behind torture and executive lawlessness. 
Immunity is a disgrace in itself, but it is far worse in what it 
represents. It tells us that some believe in the courts only so long as 
the verdict goes their way. It puts secrecy above sunshine and fiat 
above the law.
  Did the telecoms break the law? That I don't know. Pass immunity and, 
of course, we will never know. A handful of favored corporations will 
remain unchallenged. Their arguments will never be heard in a court of 
law. The truth behind this unprecedented domestic spying will never see 
the light of day.
  ``Law'' is a word that we barely hear from the supporters of 
immunity. They offer neither a deliberation about America's difficult 
choices in an age of terrorism nor a shared attempt to set for our 
times the excruciating balance between security and liberty. They 
merely promise a false debate on a false choice: security or liberty, 
but never both.
  I think differently, and I hope others do as well. I think that 
America's founding truth is unambiguous: security and liberty, one and 
inseparable, and never one without the other.
  Secure in that truth, I offer a challenge to immunity supporters. You 
want to put a handful of corporations above the law. Could you please 
explain how your immunity makes any one of us any safer at all?
  The truth is that a working balance between security and liberty has 
already been struck. In fact, it has been settled for decades. For 
three decades, in fact, FISA, the Foreign Intelligence Surveillance 
Act, has prevented executive lawbreaking and protected Americans, and 
that balance stands today.
  In the wake of the Watergate scandal, the Senate convened the Church 
Committee, a panel of distinguished members determined to investigate 
executive abuses of power. Unsurprisingly, they found that when 
Congress and the courts substitute ``trust me'' for real oversight, 
massive lawbreaking can result.
  They found evidence of U.S. Army spying on the civilian population, 
Federal dossiers on citizens' political activities, a CIA and FBI 
program that had opened hundreds of thousands of Americans' letters 
without warning or warrant. In sum, Americans had sustained a severe 
blow to their fourth amendment rights ``to be secure in their persons, 
houses, papers, and effects, against unreasonable searches and 
seizures. . . .''
  But at the same time, the Senators of the Church Committee understood 
that surveillance needed to go forward to protect the American people. 
Surveillance itself was not the problem. Unchecked, unregulated, 
unwarranted surveillance was. What surveillance needed, in a word, was 
legitimacy. And in America, as the Founders understood, power becomes 
legitimate when it is shared, when Congress and the courts check that 
attitude which so often crops up in the executive branch--``if the 
President does it, it's not illegal.''
  The Church Committee's final report, ``Intelligence Activities and 
the Rights of Americans,'' put the case powerfully

[[Page S868]]

indeed. Allow me to quote from that final report:

       The critical question before the Committee was to determine 
     how the fundamental liberties of the people can be maintained 
     in the course of the Government's effort to protect their 
       The delicate balance between these basic goals of our 
     system of government is often difficult to strike, but it 
     can, and must, be achieved.
       We reject the view that the traditional American principles 
     of justice and fair play have no place in our struggle 
     against the enemies of freedom. Moreover, our investigation 
     has established that the targets of intelligence activity 
     have ranged far beyond persons who could properly be 
     characterized as enemies of freedom. . . .
       We have seen segments of our Government, in their attitudes 
     and action, adopt tactics unworthy of a democracy, and 
     occasionally reminiscent of the tactics of totalitarian 
       We have seen a consistent pattern in which programs 
     initiated with limited goals, such as preventing criminal 
     violence or identifying foreign spies, were expanded to what 
     witnesses characterized as ``vacuum cleaners,'' sweeping in 
     information about lawful activities of American citizens.

  The Senators concluded:

       Unless new and tighter controls are established by 
     legislation, domestic intelligence activities threaten to 
     undermine our democratic society and fundamentally alter its 

  What a strange echo, what an incredibly strange echo, we hear in 
those words. The words I just read could have been written yesterday. 
Three decades ago our predecessors in this Chamber understood that when 
domestic spying goes too far, it threatens to kill just what it 
promises to protect: an America secure in its liberty. That lesson was 
crystal clear more than 30 years ago. Why is it so cloudy tonight? Why 
is it so cloudy on the eve of an important vote?
  And before we entertain the argument that ``everything has changed'' 
since those words were written, remember: The men who wrote them had 
witnessed World War and Cold War. They had seen the Nazi and Soviet 
threats and were living every day under the cloud of a nuclear 
  Mr. President, I ask this: Who will chair the commission 
investigating the secrets of warrantless spying years from today? Will 
it be a young Senator sitting in this body today? Will it be someone 
not yet elected? What will that Senator say when he or she comes to our 
actions, reads in the records of 2008 how we let outrage after outrage 
after outrage slide with nothing more than a promise to stop the next 
one? I imagine that Senator will ask of us: Why didn't they do 
anything? Why didn't they fight back? Why didn't they stand up? Why 
didn't they vote down retroactive immunity? What were they thinking? 
What more do you need to know? How many instances of abuse do you have 
to learn about? When do you stop? When do you say enough is enough? In 
February of 2008, when no one could doubt any more what the 
administration was doing, why did they sit on their hands? Why did they 
sit on their hands? Why did they pass by as if nothing had ever 
happened and grant retroactive immunity?

  Since the time of the Church Commission the threats facing our Nation 
have multiplied and grown in complexity, but the lesson has been 
immutable: Warrantless spying threatens to undermine our democratic 
society, unless legislation brings it under control. In other words, 
the power to invade privacy must be used sparingly, guarded jealously, 
and shared equally between the branches of Government.
  Or the case can be made pragmatically, as my friend Harold Koh, dean 
of Yale Law School, recently argued:

       The engagement of the three branches tends to yield not 
     just more thoughtful law, but a more broadly supported public 

  Three decades ago, Congress embodied that solution in the Foreign 
Intelligence Surveillance Act, or FISA. FISA confirmed the President's 
power to conduct surveillance of international conversations involving 
anyone in the United States, provided--provided--that the Federal FISA 
Court issued a warrant ensuring that wiretapping was aimed at 
safeguarding our security and nothing else.
  The President's own Director of National Intelligence, Mike 
McConnell, explained the rationale in an interview this summer. The 
United States, he said:

     . . . did not want to allow the intelligence community to 
     conduct electronic surveillance of Americans for foreign 
     intelligence unless you had a warrant, so that was required.

  As originally written in 1978, and as amended many times since, FISA 
has accomplished its mission. It has been a valuable tool for 
conducting surveillance of terrorists and those who would harm our 
beloved Nation. And every time Presidents have come to Congress openly 
to ask for more leeway under FISA, Congress has worked with them. 
Congress has negotiated it together. Congress and Presidents have 
struck a balance that safeguards America while doing its utmost to 
protect Americans' privacy.
  This summer, Congress made a technical correction to FISA, enabling 
the President to wiretap without a warrant conversations between two 
foreign targets, even if those conversations are routed through 
American corporate computers. For other reasons, I felt this summer's 
legislation went too far, and I opposed it, but the point is Congress 
once again proved its willingness to work with the President on foreign 
intelligence surveillance.
  Isn't that enough?
  This past October and November, as we have seen, the Senate 
Intelligence and Judiciary Committees worked with the President to 
further refine FISA and ensure, in a true emergency, the FISA Court 
would do nothing to slow down intelligence gathering.
  Isn't that enough?
  As for the FISA court? Between 1978 and 2004, according to the 
Washington Post, the FISA Court approved 18,748 warrants and rejected 
5. Let me repeat that. The FISA Court, according to the Washington 
Post, approved 18,748 warrants and rejected 5. The FISA Court has sided 
with the executive branch 99.9 percent of the time.
  Isn't that enough?
  Is anything lacking? Have we forgotten something? Isn't all this 
enough to keep us safe?
  We all know the answer we received. This complex, fine-tuned 
machinery, crafted over three decades by 3 branches of Government, 4 
Presidents, and 12 Congresses was ignored. It was a system primed to 
bless nearly any eavesdropping a President could conceive, and spying 
still happened illegally.
  If the shock of that decision has yet to sink in, think of it this 
way: President Bush ignored not just a Federal court but a secret 
Federal court. Not just a secret Federal court but a secret Federal 
court prepared to sign off on his actions 99.9 percent of the time. A 
more compliant court has never been conceived. Still, that wasn't good 
  So I will ask the Senate candidly, and candidly it already knows the 
answer: Is this about security or about power? Why are some fighting so 
hard for retroactive immunity? The answer, I believe, is immunity means 
secrecy, and secrecy means power.
  It is no coincidence to me that the man who proclaimed ``If the 
President does it, it is not illegal''--Richard Nixon--was the same man 
who raised executive secrecy to an art form. The Senators of the Church 
Committee expressed succinctly the deep flaw in the Nixonian executive: 
``Abuse thrives on secrecy.'' And in the exhaustive catalogue of their 
report, they proved it.
  In this push for immunity, secrecy is at its center. We find proof in 
immunity's original version: a proposal to protect not just telecoms 
but everyone involved in the wiretapping program. In their original 
proposal, that is what they wanted, to immunize themselves and 
absolutely everyone involved in this program. Not just the companies 
but everyone from the executive branch on down. They wanted to immunize 
every single human being.
  Think about it. It speaks to their fear and perhaps their guilt--
their guilt that they had broken the law and their fear in the years to 
come they would be found liable or convicted. They knew better than 
anyone else what they had done, and they must have had good reason to 
be afraid. Thankfully, immunity for the President is not part of the 
bill before us, and on previous occasions I have commended Senator 
Rockefeller and Senator Bond and the committee members for not agreeing 
to the administration's request for granting immunity for every single 
person. But remember, they made the request. That is what they wanted. 
While it is not in the bill, it ought to be instructive. If anybody

[[Page S869]]

wonders what this is all about, when you go back and remember that this 
administration requested of this committee that every single human 
being involved in the surveillance program be immunized and protected 
by the act of Congress, that is instructive. That is enlightening as to 
what the true intent of this administration has been when it comes to 
this program.

  As I said: Thankfully, immunity for the executive branch is not part 
of the bill before us, but the original proposal tells us something 
very important. This is, and always has been, a self-preservation bill. 
Otherwise, why not have a trial and get it over with? If the proponents 
of retroactive immunity are right, the corporations would win in a 
walk. After all, in the official telling, the telecom industry was 
ordered to help the President spy without a warrant and they 
patriotically complied. We have even heard on this floor the comparison 
between the telecom corporations to the men and women laying their 
lives on the line in Iraq.
  But ignore that. Ignore for a moment the fact that in America we obey 
the laws, not the President's orders. Ignore that not even the 
President has the right to secure a bully into breaking the law. Ignore 
that the telecoms were not unanimous; one, Qwest, wanted to see the 
legal basis for the order, never received it, and so refused to comply. 
Ignore that a judge presiding over the case ruled:

       AT&T cannot seriously contend that a reasonable entity in 
     its position could have believed that the alleged domestic 
     dragnet was legal.

  Ignore all of that. If the order the telecoms received was legally 
binding, then they have an easy case to prove. The corporations only 
need to show a judge the authority and the assurances they were given 
and they will be in and out of court in less than 5 minutes.
  If the telecoms are as defensible as the President says, why doesn't 
the President let them defend themselves? If the case is so easy to 
make, why doesn't he let them make it? It can't be that he is afraid of 
leaks. Our Federal court system has dealt for decades with the most 
delicate national security matters, building up expertise and 
protecting classified information behind closed doors--ex parte, in 
camera. We can expect no less in these cases. No intelligence sources 
need be compromised. No state secrets need to be exposed. After 
litigation, at both the district court and circuit court level, no 
state secrets have been exposed.
  In fact, Federal District Court Judge Vaughn Walker, a Republican 
appointee, I might add, has already ruled the issue can go to trial 
without putting state secrets in jeopardy. He reasonably concluded that 
the existence of a terrorist surveillance program is hardly a secret at 
all, and I quote him.

       The government has already disclosed the general contours 
     of the ``terrorist surveillance program,'' which requires the 
     assistance of a telecommunications provider.

  As the state secrets privilege is invoked to stall these high-profile 
cases, it is useful to consider that privilege's history. In fact, it 
was tainted at its birth by a President of my own party, Harry Truman. 
In 1952, President Truman successfully invoked the new privilege to 
prevent public exposure of a report on a plane crash that killed three 
Air Force contractors.
  When the report was finally declassified some 50 years later, decades 
after anyone in the Truman administration was within its reach, it 
contained no secrets at all; only facts about repeated maintenance 
failures that would have seriously embarrassed some important people. 
And so the state secrets privilege began its career not to protect our 
Nation but to protect the powerful.
  In his opinion, Judge Walker argued that, even when it is reasonably 

       the state secrets privilege still has its limits. While the 
     court recognizes and respects the executive's constitutional 
     duty to protect the Nation from threats, the court also takes 
     seriously its constitutional duty to adjudicate the disputes 
     that come before it. To defer to a blanket assertion of 
     secrecy here would be to abdicate that duty, particularly 
     because the very subject matter of this litigation has been 
     so publicly aired. The compromise between liberty and 
     security remains a difficult one. But dismissing this case at 
     the outset would sacrifice liberty for no apparent 
     enhancement of security.

  And that ought to be the epitaph for the last 6 years--sacrificing 
liberty for no apparent enhancement of security. Worse than selling our 
soul, we are giving it away for free.
  It is equally wrong to claim that failing to grant this retroactive 
immunity will make the telecoms less likely to cooperate with 
surveillance in the future. The truth is, that since the 1970s, the 
Foreign Intelligence Surveillance Act has compelled telecommunications 
companies to cooperate with surveillance, when it is warranted. What is 
more, it immunizes them. It has done that for 25 years.
  So cooperation in warranted wiretapping is not at stake today. 
Collusion in warrantless wiretapping is. The warrant makes all the 
difference in the world because it is precisely the court's blessing 
that brings Presidential power under the rule of law.
  In sum, we know that giving the telecoms their day in court, giving 
the American people their day in court, would not jeopardize an ounce 
of our security. And it could only expose one secret: The extent to 
which the rule of law has been trampled upon. That is the choice at 
stake this evening and tomorrow when we vote on this matter: Will the 
secrets of the last years remain closed in the dark or will they be 
open to the generations to come, to our successors in this Chamber, so 
they can prepare themselves to defend against future outrages of power 
and usurpations of law from future Presidents, of either party, as 
certainly they will come? As certainly they will come.
  Thirty years after the Church Committee, history repeated itself. 
Even though I probably thought in those days, this will never happen 
again. Well, here we are again. As certain as I am standing here this 
evening, at some future time, there will be an executive, a President, 
who will seek to compromise the very same principles. And just as we 
reached back 30 years ago during this debate to a hallowed time when 
another Senate, faced with similar challenges, reached entirely 
different conclusions than we are about to make, some future generation 
will reach back to ours and ask: What did they say? What did they do? 
How did they feel about this? What actions did they take?
  The idea that this body would grant retroactive immunity in the face 
of these challenges and deny the courts an opportunity to determine 
whether, at the mere request of a President, major companies, for years 
on end, can sweep up, vacuum up--to use the Church Committee's 
language--every telephone conversation, every fax, every e-mail of 
millions and millions of Americans, is a precedent I don't think we 
want as part of our heritage for coming generations.
  And believe me, they will look back to it. If those who come after us 
are to prevent it from occurring again, they need the full truth.
  Constitutional lawyer and author Glenn Greenwald expressed the high 
stakes this way:

       The Bush administration will be gone in 11 months. But--in 
     the absence of some meaningful accountability--all of this 
     will remain . . . If . . . these theories remain undisturbed 
     and unchallenged, and . . . all of these crimes go 
     uninvestigated and unpunished, that will have a profound 
     impact on changing our national character, in further 
     transforming the type of country we are.

  That is why we must not see these secrets go quietly into the good 
night. I am here this evening because the truth is no one's private 
property. It belongs to every one of us, and it demands to be heard.
  ``State secrets,'' ``patriotic duty'': Those, as weak as they are, 
are the arguments the telecoms' advocates use when they are feeling 
high-minded. When their thoughts turn baser, they make their arguments 
as amateur economists.
  Here is how Director of National Intelligence Mike McConnell put it.

       If you play out the suits at the value they're claimed, it 
     would bankrupt these companies. So . . . we have to provide 
     liability protection to these private sector entities.

  That is an incredible statement. It is amazing that a person in high 
Government would suggest that no matter how warranted this 
investigation may be, there is a higher calling, that we should not put 
these companies in any kind of financial jeopardy, that we have to 
provide liability protection to these private sector entities because 
it might bankrupt them.
  To begin with, it is a clear exaggeration. First and foremost, we are 
talking about some of the most successful

[[Page S870]]

companies in the United States, not only today but ever. Some of these 
companies have continued to earn record profits and sign up record 
numbers of subscribers at the same time as this very public litigation, 
totally undermining the argument, I might add, these lawsuits are doing 
the telecoms severe reputational damage.
  Remember, the discussion about these telecoms has now gone on for 
months. And yet in the public debate about whether the courts ought to 
be able to examine these issues, there are reports that these companies 
have been accumulating record profits. Companies that size could not be 
completely wiped out by anything but the most exorbitant and unlikely 
judgment. To assume that the telecoms would lose and that the judges 
would hand them down such back-breaking penalties is already to take 
several leaps.
  The point, after all, has never been to finally cripple our 
telecommunications industry. That is not the point here at all. In 
fact, some have said: Look, I will support you striking this immunity, 
provided you put a cap on damages these companies would suffer if in 
fact the plaintiffs prove to be correct. And I am more than happy to 
entertain that. I do not believe it is necessary, but if that is the 
argument, a damages cap would answer all of Mike McConnell's concerns, 
without even having to bring up immunity. I am prepared to agree to any 
kind of a cap you want--because the point to me is not the damages they 
pay, but the damage they have done.
  But to suggest somehow that there is a pricetag companies would have 
to pay which is more valuable than protecting people's privacy is a 
stunning, breathtaking comment from a high Government official, in my 
view. It is extremely troubling that our Director of National 
Intelligence even bothers to pronounce on ``liability protection for 
private sector entities.'' How did that even begin to be relevant to 
letting this case go forward? Since when do we throw entire lawsuits 
out because the defendant stood to lose too much? In plain English, 
here is what Admiral McConnell is arguing: Some corporations are too 
rich to be sued. Even bringing money into the equation puts wealth 
above justice, above due process. Rarely in public life in the years I 
have served here have I ever heard an argument as venal as that on a 
matter as serious as this one. It astounds me that some can speak in 
the same breath about national security and the bottom line. Approve 
immunity and Congress will state clearly: The richer you are, the more 
successful you are, the more lawless you are entitled to be. A suit 
against you is a danger to the Republic! And so, at the rock bottom of 
its justifications, the telecoms' advocates are essentially arguing 
that immunity can be bought.
  The truth is exactly, of course, the opposite. The larger the 
corporation, frankly, the greater the potential for abuse. Not that 
success should make a company suspect at all; companies grow large, and 
essential to our economy because they are excellent at what they do. I 
simply mean that size and wealth open the realm of possibilities for 
abuse far beyond the scope of the individual.
  After all, if everything alleged is true, we are talking about one of 
the most massive violations of privacy in American history. If 
reasonable search and seizure means opening a drug dealer's apartment, 
the telecoms' alleged actions would be the equivalent of strip-
searching everyone in the building, ransacking their bedrooms, prying 
up all the floorboards. The scale of these cooperations opens 
unprecedented possibilities for abuse, possibilities far beyond the 
power of any one individual.
  If the allegation against the telecoms is true, it constitutes one of 
the most massive violations of privacy in American history. And it 
would be inconceivable without the size and resources of a corporate 
behemoth, the same size that makes Mike McConnell fear the 
corporations' day in court. That is the massive scale we are talking 
about, and that massive scale is precisely why no corporation must be 
above the law.
  On that scale, it is impossible to plead ignorance. As Judge Walker 

       AT&T cannot seriously contend that a reasonable entity in 
     its position could have believed that the alleged domestic 
     dragnet was legal.

  Again, from a Republican appointee to the Federal bench. But the 
arguments of the President's allies sink even lower. Listen to the 
words of a House Republican leader spoken on Fox News. Candidly, they 
are shameful.

       I believe that [the telecoms] deserve immunity from 
     lawsuits out there from typical trial lawyers trying to find 
     a way to get into the pockets of American companies.

  Of course, some of the ``typical greedy trial lawyers'' bringing 
these suits work for a nonprofit. And the telecoms that some want to 
portray as pitiful little Davids actually employ hundreds of attorneys, 
retain the best corporate law firms, and spend multimillion dollar 
legal budgets.
  But if the facts actually matter to immunity supporters, we would not 
be here. For some, the prewritten narrative takes precedence far above 
the mere facts; and here, it is the perennial narrative of the greedy 
trial lawyers.
  With that, some can rest content. They conclude that we were never 
serious about the law, or about privacy, or about checks and balances; 
it was about the money all along.
  But we will not let them rest content. We are extremely serious. 
There can no longer be any doubt: One by one the arguments of the 
immunity supporters, of the telecoms' advocates, fail.
  I wish to spend a few minutes and detail these claims and their 
failures, if I may. The first argument from immunity supporters says:

       The President has the authority to decide whether or not 
     telecoms should be granted immunity.

  That is the first argument. The President has that implicit 
authority. But the facts in this case belong in the courts. The 
judiciary should be allowed to determine whether the President has 
exceeded his powers by obtaining from the telecoms wholesale access to 
the domestic communications of millions of ordinary Americans.
  Whatever the arguments may be, let us assume for a second they are 
going to make this argument. Well, you can make an argument. Where is 
the place you make that argument? Here in the legislative body or in 
the courts? I think the simple answer is, if you have been to law 
school for a week, the courts.
  We are a government of three parts, coequal: executive, legislative, 
and judicial. The executive branch says: I have the right to do this. 
The Congress can debate and certainly discuss it. But only in the 
courts can we determine the constitutionality of that action.
  Neither this body nor the other that comprise the legislative branch 
are charged with the responsibility of determining constitutionality. 
When Congress passes a law, the courts decide whether it is 
constitutional. When the President acts, the courts decide whether it 
is constitutional. The executive branch does not decide whether we have 
acted constitutionally, and we do not decide whether the President has 
acted constitutionally. That is what the courts are for. This is basic 
101 stuff. This is basic stuff. You go to the courts to determine this 
question. And yet if we pass retroactive immunity--gone.
  That is a great precedent. That is what future Congresses will look 
to, when deciding when some future President overreaches: What did the 
previous Congresses do? And you will hear the argument in this Chamber 
years hence: Well, back in 2008, when confronted with that question, 
the Senate said that, frankly, the courts had no business with that, in 
effect, sanctioning what had occurred.
  How else can you read this but as a sanction? If a majority of 
Senators here decides that retroactive immunity is warranted, what 
other conclusion can history draw from that, except we agreed with the 
President that he had the right to do what he did, and we will never 
know the legal answer to the question. We will deprive the courts of 
the opportunity to decide it.
  We are overstepping our bounds incredibly by doing this, and hence 
the reason for the first time in my more than a quarter century in this 
body I am engaging in extended debate, because this is that important.
  To allow a President, any President of any party, to mandate or 
require a public or private entity to invade the privacy of Americans 
to the extent that has occurred here, one of the most massive alleged 
violations of privacy in

[[Page S871]]

history, and not challenge it and have the courts determine the 
legality or illegality of it, is an incredible precedent of historic 
proportions. It is not a small vote tomorrow. It is not a minor issue. 
It is about as important and as basic and as fundamental as anything we 
can ever do.
  Remember that the administration's original immunity proposal 
protected everyone. That is what they wanted. And executive immunity is 
not in this bill only because Jay Rockefeller and Kit Bond and the 
other members of the committee said No. But do not forget that is what 
they wanted. The administration came to the committee, and said: We 
want you to grant immunity to everyone--the executive branch, the 
telecoms, Justice Department, anyone else involved.
  The committee turned them down. But they asked for it. They asked for 
it. And that has to be a part of this debate and discussion. It is not 
irrelevant. It is not insignificant that the President of the United 
States asked the Intelligence Committee of the Senate to grant them and 
everyone else involved in this issue total immunity. What more do you 
need to know about what the motives are? How much more do you need to 
find out? The origin of immunity tells us a great deal about what is at 
stake here. It is self-preservation.
  I have my own opinions about warrantless surveillance, about what 
went on. But my opinions should not bear the weight of law. I think 
what these companies did was wrong. But I would be a fool to stand 
before you this evening and say I have the right to make that 
determination. But they should have not the right, either, to decide if 
it was legal. And that is what we are doing, in effect, by granting 
retroactive immunity.
  The second argument is that only foreign communications are targeted.
  Immunity supporters claim that only foreign communications were 
targeted, not Americans' domestic calls. But the fact is that clear 
firsthand evidence authenticated by these corporations in court 
contradicts that claim. ``Splitters'' at AT&T's Internet hub in San 
Francisco diverted into a secret room controlled by the NSA every e-
mail, every text message, every phone call, foreign or domestic, 
carried over the massive fiber optic lines of 16 separate companies for 
over 5 years.
  Third, the Senate Intelligence Committee has preserved the role of 
the judiciary so there is ample oversight. But the fact is, the role 
would be empty. The Intelligence version of the bill before us would 
require the cases to be dismissed at a word from the Attorney General. 
The central legal questions raised by these cases would never be heard. 
The cases would never be fully closed. We would never really truly know 
what happened in these matters. So from a mere word of the Attorney 
General, that is the end of it.
  The fourth argument we have been hearing over the last number of 
months: A lack of immunity would compromise future cooperation between 
the U.S. Government and the telecom industry. But remember: Since the 
1970s the Foreign Intelligence Surveillance Act has compelled telecoms 
to cooperate with warranted surveillance, and it has immunized them 
entirely. They don't have a choice, in effect. If you are compelled by 
a warrant to turn over the evidence, you don't have the choice of 
cooperating or not. The idea that the companies will say: We are just 
not going to share that information with you--you don't have that 
luxury. When a court order comes and says: Turn over the evidence, you 
have to turn it over. But, of course, the companies say: We don't want 
to because we will end up with a lot of lawsuits. To handle that very 
legitimate issue raised initially by AT&T, which was part of drafting 
FISA in 1978, we said: Don't worry about that. We will immunize you so 
there won't be any lawsuits that can be brought against you for doing 
what you are compelled to do by court order and a warrant.
  So the argument that somehow we won't be cooperative with you is just 
on its face factually wrong. You don't have the choice not to 
cooperate. What we do grant to you with that warrant is the fact that 
you cannot be sued, which is a legitimate request to make.
  That is not, of course, what happened here. The decision was made to 
turn over the evidence without a warrant, without a court order.
  I pointed out before that according to the Washington Post, since 
1978 there have been over 18,700 court orders requested of the FISA 
Court, and only 5 have been rejected in 30 years; 18,700-plus cases 
before the court, that secret, private Federal court, and in 99.9 
percent of the cases, they have been approved. Only five have been 
rejected. But when you are receiving a court order, when the warrant 
arrives and you are complying with it, as you are required, you also 
receive immunity from legal prosecution or from lawsuits. So the 
argument somehow that these companies won't be as cooperative, if it 
weren't so sad, would almost be amusing.
  This was a pay deal, by the way. It wasn't just patriotic duty. There 
was a cost involved. We were writing checks to the telecommunications 
industry. For whatever reason, when the Government stopped paying the 
checks to the telecom industry, these great patriotic institutions 
decided to stop the surveillance. Were they under a court order, had 
there been a warrant insisting upon their compliance, they wouldn't 
have the luxury of deciding not to comply. Only under this fact 
situation we are debating this evening would these corporations have 
any ability to all of a sudden stop complying with the law or complying 
with the request. So the irony of the argument is that the reverse is 
actually true. If you don't have a warrant and a court order, it is 
less likely you are apt to get that continual cooperation from these 
very companies that can provide the information we need to keep us more 
  The fifth argument immunity supporters make is that telecoms can't 
defend themselves because of the state secrets provision. I made this 
case a while ago, but let me repeat it. The fact is that Federal 
district court Judge Vaughn Walker has already ruled that the issue can 
go to trial without putting state secrets in jeopardy. Judge Walker 
pointed out that the existence of the warrantless surveillance program 
is hardly a secret at all.
  I will quote him again. He said:

       The Government has [already] disclosed the general contours 
     of the ``terrorist surveillance program,'' which requires the 
     assistance of a telecommunications provider.

  So the argument that they can't defend themselves without exposing 
state secrets has already been debunked.
  The sixth argument that is made by those who support immunity is that 
defendants are already shielded by common law principles. This is an 
interesting one. Immunity supporters claim that telecoms are protected 
by common law principles, but the fact is that common law immunities do 
not trump specific legal duties imposed by statute such as the specific 
duties Congress has long imposed on telecoms to protect customer 
privacy and records.
  In the pending case against AT&T, the judge already has ruled 
unequivocally that ``AT&T cannot seriously contend that a reasonable 
entity in its position could have believed that the alleged domestic 
dragnet was legal.'' Even so, the communications company defendants can 
and should have the opportunity to present these defenses to the courts 
and the courts--not the Congress preemptively--should decide whether 
they are sufficient.
  The seventh argument that is being made by the supporters of immunity 
is that information leaks may compromise state secrets and national 
security. I have heard this argument over and over and over again. The 
fact is, our Federal court system, in decade after decade of dealing 
with delicate national security matters, has built up the expertise it 
takes to secure that information behind closed doors. If we are still 
concerned about national security being threatened as a result of these 
cases, we can simply get the principals a security clearance.

  We can be increasingly confident that these cases will not expose 
state secrets or intelligence sources, because after the extensive 
litigation that has already taken place at both the district court and 
circuit court level, no sensitive information has been leaked.
  This is a red herring issue. It is one that they are going to fall 
back on over and over again. But it is no secret about what has been 
going on. It has been widely reported. The only thing we are talking 
about is methods and means. Yet, over the decades, our Federal courts, 
in very sensitive matters,

[[Page S872]]

have protected that information. So this is a phony argument and ought 
not to carry the day.
  The eighth argument from those who support immunity: A lack of 
immunity will harm the telecom companies. This is not unlike Admiral 
McConnell's argument about finances. There will be reputational damage 
to the telecom industry. The fact is, there is no evidence that this 
litigation has reduced or will reduce the defendant companies' bottom 
lines or customer base. These companies can only be harmed if they have 
done something wrong. If they have not, they have nothing to worry 
about. But the suggestion somehow that we should not go forward because 
your reputation may be damaged is an insulting argument. It is 
offensive to suggest that we should harm the people's right to privacy 
because to prevent some reputational damage--they should be embarrassed 
to make that argument. After all, there is nothing to be damaged if you 
have done nothing wrong. If you have done something wrong, then, of 
course, there will be some damage. And why shouldn't there be, if you 
have done wrong? The courts are the ones to properly determine that.
  The ninth argument: The magnitude of liability will bankrupt the 
telecoms. I have addressed this already, but I will briefly respond to 
it as well.
  As we have seen, huge corporations could only be wiped out by most 
enormous penalties and also the most unlikely penalties that could be 
imposed. It would take several leaps to assume that the telecoms would 
lose and that they will be slapped with huge judgments. But on another 
level, immunity supporters are staking their claim on a dangerous 
principle, that a suit can be stopped solely on the basis of how much 
the defendant stands to lose. If we accept that premise, we could 
conceive of a corporation so wealthy, so integral to our economy, that 
its riches place it outside of the law altogether. That is a deeply 
flawed argument.
  We see that none of these arguments for immunity stand. There is 
absolutely no reason to halt the legal process and to bar the 
courthouse door.
  I think it is important at this moment to share with those who may be 
following this discussion, how we got to this point. How did we find 
out about all of this? I said earlier that we would not be here 
debating this this evening had it not been for a whistleblower, had it 
not been for reports in the media about what was going on, that a 5-
year violation of privacy rights would have now turned into a 7- or 8-
year violation, unabated, unstopped--every phone conversation, fax, e-
mail being literally swept up, from millions and millions of people.
  But we got knowledge of this because of a gentleman by the name of 
Mark Klein who was a former AT&T telecommunications technician who came 
forward to provide evidence of the company's collaboration with the 
NSA. Mark Klein is a remarkable individual, a person of knowledge and 
ability when it comes to these matters. Let me read from Mark Klein's 
testimony because I think it is important. This is all from him. These 
are not my words. These are words from Mark Klein, a person who worked 
at AT&T for more than 20 years as an employee and a technician who came 
forward to provide this information. Let me read his comments, if I 
may, and put them into this debate.

       For about 5 years, the Bush administration's National 
     Security Agency, with the help of the country's largest 
     telecommunications companies, has been collecting your e-
     mail, accumulating information on your Web browser, and 
     gathering details about your Internet activity, all without 
     warrants and in violation of the U.S. Constitution and 
     several Federal and State laws. Even after the program was 
     exposed by the New York Times in December of 2005, the 
     President and other government officials consistently 
     defended the NSA's activities, insisting that the NSA only 
     collects communications into or from the United States where 
     one party to the communication is someone they believe to be 
     a member of al Qaeda or an associated terrorist organization. 
     But these claims are not true. I know they are not true, 
     because I have firsthand knowledge of the clandestine 
     collaboration between one giant telecommunications company 
     and the NSA to facilitate the most comprehensive spying 
     program in history. I have seen the NSA's vacuum cleaner 
     surveillance infrastructure with my own eyes. It is a vast 
     government-sponsored, warrantless spying program.
       For over 22 years, I worked as a technician for AT&T. While 
     working in San Francisco in 2002, I learned that a management 
     level technician, with AT&T's knowledge, had been cleared by 
     the NSA to work on a special but secret project, the 
     installation and maintenance of Internet equipment in a newly 
     constructed secure room in AT&T's central office in San 
     Francisco. Other than the NSA-cleared technician, no 
     employees were allowed in that room.
       In October of 2003, I was transferred to that office and 
     was in particular assigned to oversee AT&T operations. As 
     part of my duties, I was required to connect circuits 
     carrying data to optical splitters which made a copy of the 
     light signal. But the splitters weakened the light signal 
     causing problems I had to troubleshoot. After examining 
     engineering documents given to the technicians which showed 
     the connections to the splitters, I discovered that there 
     they were hard wired to the secret room. In short, an exact 
     copy of all traffic that flowed through critical AT&T 
     cables--e-mails, documents, pictures, Web browsing, voiceover 
     Internet phone conversations--everything was being diverted 
     to equipment inside the secret room. In addition, the 
     documents revealed the technological gear used in their 
     secret project, including a highly sophisticated search 
     component capable of quickly sifting through huge amounts 
     of digital data, including text, voice, and images in 
     real-time, according to preprogrammed criteria. It is 
     important to understand that the Internet links which were 
     connected to the splitter contained not just foreign 
     communications, but vast amounts of domestic trafficking 
     all mixed together.
       Furthermore, the splitter has no selective abilities. It is 
     just a dumb device which copies everything to the secret 
     room. And the links going through the splitter are AT&T's 
     physical connections to many other Internet providers; e.g., 
     Sprint, Qwest, Global Crossing Cable and Wireless, and the 
     critical west coast exchange point known as Mae West. Since 
     these networks are interconnected, the government's 
     surveillance affects not only AT&T customers, but everyone 
     else--millions of Americans.

  I repeat again, I am reading the testimony of Mark Klein who was the 
whistleblower who revealed this 5-year-long warrantless surveillance 
program. Mark Klein goes on:

       I also discovered in my conversations with other 
     technicians that other secret rooms were established in 
     Seattle, San Jose, Los Angeles and San Diego. One of the 
     documents I obtained also mentioned Atlanta, and the clear 
     inference and the logic of this setup and the language of the 
     documents is that there are other such rooms across the 
     country to complete the coverage--possibly 15 to 20 more. So 
     when reports of the government's extensive wiretapping 
     program surfaced in December of 2005, after I had left AT&T, 
     I realized two things. First, that I had been a witness to a 
     massive spying effort that violated the rights of millions of 
     Americans; and second, that the government was not telling 
     the public the truth about the extent of their 
     unconstitutional invasion of privacy.
       In the spring of 2006, I became a witness for the 
     Electronic Frontier Foundation's lawsuit against AT&T. The 
     New York Times on April 13 of 2006 reported that four 
     independent technical experts who examined the AT&T documents 
     all said that the documents showed that AT&T had an agreement 
     with the Federal Government to systematically gather 
     information flowing on the Internet.

  That is the testimony of Mark Klein.
  I think it is important as well to share with my colleagues the 
testimony of Brian Ried, currently the Director of Engineering and 
Technical Operations at Internet Systems Consortium, a nonprofit 
organization devoted to supporting a nonproprietary Internet. This is a 
person of extensive knowledge. I am going to read his testimony about 
the technical arrangements. This is clearly above my pay grade to 
understand all of this with this gray head of hair I have, but to those 
who are listening or watching any of this, this will explain how this 
actually worked. So I am going to read this as if I actually know what 
I am talking about. So let me read exactly the words of Brian Ried, the 
statement of telecommunications expert Brian Ried, an AT&T 
whistleblower, about Mark Klein's revelations.

       I am a telecommunications and data networking expert.

  That is again Brian Ried speaking here who has been involved in the 
development of several critical Internet technologies.

       I was a professor of electrical engineering at Stanford 
     University and of computer sciences at Carnegie Melon 
     University West. I have carefully reviewed the AT&T 
     authenticated documents and declaration provided by Mark 
     Klein and the public redacted version of the expert 
     declaration of Jay Scott Marcus, both filed in the Hepting v. 
     AT&T litigation. Combining the information contained in those 
     declarations and documents with my extensive knowledge of the 
     international telecommunications infrastructure and the 
     technology regularly used for lawful surveillance pursuant to 

[[Page S873]]

     and court orders, I believe Mr. Klein's evidence is strongly 
     supportive of widespread, untargeted surveillance of ordinary 
     people, both AT&T customers and others.
       The AT&T documents describe a technological setup of the 
     AT&T facility in San Francisco. This setup is particularly 
     well suited to wholesale dragnet surveillance of all 
     communications passing through the facility, whether 
     international or domestic. These documents describe how the 
     fiberoptic cables were cut and splitters installed at the cut 
     point. Fiberoptic splitters work just like ordinary TV 
     splitters. One cable feeds in and two cables feed out. Both 
     cables carry a copy of absolutely everything that is sent, 
     and if the second cable is connected to a monitoring station, 
     that station sees all traffic going over the cable.
       Mr. Klein stated that the second cable was routed into a 
     room at the facility which access was restricted to AT&T 
     employees having clearances from the National Security 
     Agency. The documents indicate that similar facilities were 
     being installed in Seattle, San Jose, Los Angeles, and San 
     Diego. The documents also reference a somewhat similar 
     facility in Atlanta. This infrastructure is capable of 
     monitoring all traffic passing through the AT&T facility, 
     some of it not even from AT&T customers, whether voice or 
     data or fax, international, or domestic. The most likely use 
     of this infrastructure is wholesale, untargeted surveillance 
     of ordinary Americans at the behest of the NSA. NSA 
     involvement undermines arguments that the facility is 
     intended for use by AT&T in protecting its own network 
       This infrastructure is not limited to, nor would it be 
     especially efficient for targeted surveillance or even an 
     untargeted surveillance aimed at communications where one of 
     the ends is located outside of the United States. It is also 
     not reasonably aimed at supporting AT&T operations and 
     security procedures. There are 3 main reasons. 
     The technological infrastructure is far more powerful and 
     expansive than that needed to do targeted surveillance or 
     surveillance aimed at only international or one end 
     foreign communications. For example, it includes a Narus 
     6400, a computer that can simultaneously analyze huge 
     amounts of information based on rules provided by the 
     machine operator, analyze the content of messages and 
     other information--not just headers or routing 
     information--conduct the analysis in real-time rather than 
     after a delay, correlate information from multiple 
     sources, multiple formats, over many protocols and through 
     different periods of time in that analysis.
       The documents describe a secret private backbone network 
     separate from the public network where normal AT&T customer 
     traffic is carried and transmitted. A separate backbone 
     network would not be required for transmission of the smaller 
     amounts of data captured by a targeted surveillance. You 
     don't need that magnitude of transport capacity if you are 
     doing targeted surveillance.
       The San Francisco facility is not located near an entry-
     exit point for international communications that happened to 
     be transmitted through the United States either through under 
     sea cable or via satellite. As a result, it would not be a 
     sensible place to locate aimed at simply monitoring traffic 
     to or from foreign countries.

  I apologize for reading these technical documents, but I think they 
shed some light. We are talking about very knowledgeable, expert people 
describing technically what was done, the magnitude of it, the capacity 
of it, the effort that was made, obviously, to see to it, as Mr. Klein 
calls it, a dumb machine that would not discriminate between 
information that might only be used to protect us from al-Qaida, and 
wholesale invasion of privacy.
  But putting aside all that--had they sought a warrant and a court 
order, as they should have done, then arguably AT&T and others involved 
would be protected today and be immunized against lawsuits, if it had 
been done under the FISA legislation. The fact that the administration 
decided to totally disregard 30 years of legislation, of working courts 
that have provided, in over 18,700 examples, approval of such requests, 
rejecting only 5, shows an arrogance that shouldn't be ignored.
  So again, tomorrow when the votes occur on cloture and the votes 
occur on these amendments, we will may sanctioning this activity--
setting the unprecedented precedent of a Congress actually providing 
immunity from the courts even examining whether warrantless spying is 
legal and right. Hence, in future years, this will be cited, I am 
confident, by those who want to undermine the FISA Courts, deprive the 
courts the opportunity to make sure there is a justification, an 
argument, a legal basis for granting these warrants. The argument will 
be made: You don't need the courts, because back in 2008, 
telecommunications companies, at the mere request of a President, were 
able to go forward and spend more than 5 years invading the privacy of 
millions of Americans, and when the Senate had an opportunity to 
sanction that activity, it decided to do so, rather than allow the 
court to determine whether that action was legal.
  The word of the Senate should be a valued--I can hear the argument 
years hence. They listened to the debates, they listened to that fellow 
Dodd get up and talk for hours about the issue of immunity and why it 
shouldn't be granted retroactively and they turned him down. That will 
be the precedent cited when faced with similar allegations involving 
future administrations that may decide that financial information, 
medical information, highly private, personal, family information may 
be the subject of unwarranted surveillance to allegedly protect our 
country and keeping us safe. If that is the case, I am confident this 
debate and these votes will be cited as a justification for allowing 
that kind of activity to go forward without receiving the legal 
authority to do so. We will have denied the courts the opportunity to 
decide whether this activity that was the most serious invasion of 
privacy ever maybe in our country was legal or illegal. By granting 
retroactive immunity, we will have made a decision to deprive the 
courts of that responsibility.
  Ultimately, all I am asking for is a fair fight. To reject immunity 
would mean to grab hold of the closest thread of lawlessness we have at 
hand and to pull until the whole garment unravels. But ensuring a day 
in court is not the same as ensuring a verdict. When that day comes, I 
have absolutely no investment in the verdict, either way. It may be the 
Federal Government broke the law when they asked the telecoms to spy 
but that the telecoms' response was an innocent one. It may be the 
Government was within the law and that the telecoms broke it. Maybe 
they both broke the law. Maybe neither did.
  But just as it would be absurd to declare the telecoms clearly 
guilty, it is equally absurd, I would argue, to close the case in 
Congress without a decision. That is what immunity does: It closes the 
case without a decision. Throughout this debate, the telecoms' 
advocates have needed to show not just that they are right but that 
they are so right and that we are so far beyond the pale that we can 
shut down the argument right here, today. That is a burden they have 
clearly not met, and they cannot expect to meet it when a huge majority 
of Senators who will make the decision have not even seen the secret 
documents that are supposed to prove the case for retroactive immunity.
  My trust is in the courts, in the cases argued openly, in the judges 
who preside over them, and in the juries of American citizens who 
decide them. They should be our pride, not our embarrassment, and they 
deserve to do their jobs.
  As complex, as diverse, as relentless as the assault on the rule of 
law has been, our answer to it is a simple one. Far more than any 
President's lawlessness, the American way of justice remains deeply 
rooted in our character; that no President can disturb or should be 
allowed to do so.
  So I am full of hope. Even on this dark evening, I have faith that we 
can unite security and justice because we have already done it for 30 
years. My father, Senator Tom Dodd, was the number two American 
prosecutor at the famous Nuremburg trials, which may have something to 
do with the passion I feel about this issue--the rule of law.
  I have never forgotten the example he and Justice Robert Jackson and 
others set at Nuremberg more than 60 years ago.
  As Justice Robert Jackson said in the opening statement at 
Nuremberg--in fact, I have written it down, but I memorized this years 
and years ago. Robert Jackson's opening statement, speaking to the 
court, talking about the Soviet Union, the British, the French, and 
America, he made the following argument:

       That four great nations, flushed with victory and stung 
     with injury, stay the hand of vengeance and voluntarily 
     submitting their captive enemies to the judgment of the law 
     is one of the most significant tributes that power ever paid 
     to reason.

  That is a great sentence when you think of it. Here we are staying 
the hands of vengeance and power, paying tribute to reason. At 
Nuremberg, there were 21 initial defendants. Madam President, 55 
million people had died, 6

[[Page S874]]

million Jews were incinerated, and 5 million others had the same fate 
befall them because of their politics, religion, or sexual orientation. 
These were some of the greatest crimes in recorded history. Winston 
Churchill wanted to summarily execute every one of them. The Soviets 
wanted a show trial for a week and then to kill them all. Robert 
Jackson, Harry Truman, Henry Stinton, the Secretary of War in 
Roosevelt's Cabinet--this handful of people said: The United States is 
different. We are going to do something no one else has ever done 
before. We are going to give these defendants, as great violators of 
human rights as they are, a day in court. It was unprecedented.
  Here they are, the war still raging in the Pacific, gathering in 
Nuremberg, Germany, which had 30,000 people buried in the rubble of the 
city. Prosecutors, judges, and lawyers for these individuals gathered 
together and gave them a day in court that went on for a year.
  And the United States gained the moral high ground. Never before in 
history had the victors given those guilty of the worse atrocities 
imaginable a day in court.
  I cannot believe this country, at this hour, would walk away from the 
rule of law when we stood for it so proudly in the 20th century. In 
fact, that experience at Nuremberg gave birth to a half-century of 
moral authority. It paved the way for the Marshall Plan and for the 
international structures that gave the world relative peace for more 
than a half century. For so many years, both Republican and Democratic 
administrations stood up for them and defended them. The international 
criminal courts and others--none of these institutions would have 
existed were it not for the United States leading.
  Today, when we find ourselves at this moment in this body--of all 
places--walking away from the rule of law, I think it is a dark hour. 
Again, my hope is that by tomorrow reason will prevail here, and we 
will arrive at a different decision and reject this idea that 
retroactive immunity is warranted.
  What is the tribute that power owes to reason? That when America goes 
to war, it doesn't fight for land or for treasure or for dominance but 
for a transcendent idea--the idea that laws should rule and not men; 
the idea that the Constitution does not get suspended for vengeance; 
the idea that this great Nation should never tailor its eternal 
principles to the conflict of the moment because, if we did, we would 
be walking in the footsteps of the enemies we despised.
  The tribute that power owes to reason: More than ever before, that 
tribute is due today. If we cannot find the strength to pay it, we will 
have to answer for it.
  There is a famous military recruiting poster that comes to mind. A 
man is sitting in an easy chair with his son and daughter on his lap, 
in some future after the war has ended. His daughter asks him: Daddy, 
what did you do in the war?
  His face is shocked and shamed, because he knows he did nothing.
  My daughters, Grace and Christina, are 3 and 6 years old. They are 
growing up in a time of two great conflicts: one between our Nation and 
enemies, and another between what is best and worst in our American 
soul. Someday soon I know I am going to hear the question: What did you 
  I want more than anything else to give the right answer to that 
question. That question is coming from every single one of us in this 
body. Every single one of us will be judged by a jury from whom there 
is no hiding: our sons and daughters and grandchildren. Someday soon 
they will read in their textbooks the story of a great nation, one that 
threw down tyrants and oppressors for two centuries; one that rid the 
world of Naziism and Soviet communism; one that proved that great 
strength can serve great virtue, that right can truly make might. Then 
they will read how, in the early years of the 21st century, that Nation 
lost its way.
  We don't have the power to strike that chapter. We cannot go back. We 
cannot undestroy the CIA's interrogation tapes. We cannot unpass the 
Military Commissions Act. We cannot unspeak Alberto Gonzales' 
disgraceful testimony. We cannot untorture innocent people. And, 
perhaps, sadly, shamefully, we cannot stop retroactive immunity. We 
cannot undo all that has been done for the last 6 years for the cause 
of lawlessness and fear. We cannot blot out that chapter. But we can 
begin the next one, even today.
  Let the first words read: Finally, in February 2008, the Senate said: 
Enough is enough.
  I implore my colleagues to write it with me. I implore my colleagues 
to vote against retroactive immunity. I implore them to reject it, and 
if we fail to do that, to vote against cloture.
  I have shared my thoughts and views at some length now. But there are 
others who have spoken eloquently on this subject. I think their words 
deserve to be heard because they state far more eloquently than I could 
the importance of all of this and why this is such a compelling case 
and deserving of our attention. Let me share a few of these words from 
the New York Times:

       Even by the dismal standards of what passes for a national 
     debate on intelligence and civil liberties, last week was a 
     really bad week.
       The Senate debated a bill that would make needed updates to 
     the Foreign Intelligence Surveillance Act--while needlessly 
     expanding the president's ability to spy on Americans without 
     a warrant and covering up the unlawful spying that President 
     Bush ordered after 9/11.
       The Democrat who heads the Senate Intelligence Committee, 
     John Rockefeller of West Virginia, led the way in killing 
     amendments that would have strengthened requirements for 
     warrants and raised the possibility of at least some 
     accountability for past wrongdoing. Republicans declaimed 
     about protecting America from terrorists--as if anyone was 
     arguing the opposite--and had little to say about protecting 
     Americans' rights.
       We saw a ray of hope when the head of the Central 
     Intelligence Agency conceded--finally--that waterboarding was 
     probably illegal. But his boss, the 'director of national 
     intelligence, insisted it was legal when done to real bad 
     guys. And Vice President Dick Cheney--surprise!--made it 
     clear that President Bush would authorize waterboarding 
     whenever he wanted.
       The Catch-22 metaphor is seriously overused, but consider 
     this: Attorney General Michael Mukasey told Congress there 
     would be no criminal investigation into waterboarding. He 
     said the Justice Department decided waterboarding was legal 
     (remember the torture memo?) and told the C.I.A. that.
       So, according to Mukaseyan logic, the Justice Department 
     cannot investigate those who may have committed torture, 
     because the Justice Department said it was O.K. and Justice 
     cannot be expected to investigate itself.
       As it was with torture, so it was with wiretaps.
       After the 2001 terrorist attacks, the President decided to 
     ignore the Foreign Intelligence Surveillance Act, or FISA, 
     and authorized wiretaps without a warrant on electronic 
     communications between people in the United States and people 
     abroad. Administration lawyers ginned up a legal 
     justification and then asked communications companies for 
     vast amounts of data.
       According to Mr. Rockefeller, the companies were ``sent 
     letters, all of which stated that the relevant activities had 
     been authorized by the President'' and that the Attorney 
     General--then John Ashcroft--decided the activity was lawful. 
     The legal justification remains secret, but we suspect it was 
     based on the finely developed theory that the government 
     cannot be sued for doing so if they were obeying a warrant--
     or a certification from the Attorney General that a warrant 
     was not needed--and all federal statutes were being obeyed.
       When Mr. Bush started his spying program, FISA allowed 
     warrantless eavesdropping for up to a year if the president 
     certified that it was directed at a foreign power, or the 
     agent of a foreign power, and there was no real chance that 
     communications involving United States citizens or residents 
     would be caught up. As we now know, the surveillance included 
     Americans and there was no ``foreign power'' involved.
       The law then, and now, also requires the attorney general 
     to certify ``in writing under oath'' that the surveillance is 
     legal under FISA, not some fanciful theory of executive 
     power. He is required to inform Congress 30 days in advance, 
     and then periodically report to the House and Senate 
     intelligence panels.
       Congress was certainly not informed, and if Mr. Ashcroft or 
     later Alberto Gonzales certified anything under oath, it's a 
     mystery to whom and when. The eavesdropping went on for four 
     years and would probably still be going on if The Times had 
     not revealed it.
       So what were the telecommunications companies told? Since 
     the administration is not going to investigate this either, 
     civil actions are the only alternative.
       The telecoms, which are facing about 40 pending lawsuits, 
     believe they are protected by a separate law that says 
     companies that give communications data to the government 
     cannot be sued for doing so if they were obeying a 
     warrant--or a certification from the attorney general that 
     a warrant was not needed--and all federal statutes were 
     being obeyed.
       To defend themselves, the companies must be able to show 
     they cooperated and produce that certification. But the White 
     House does

[[Page S875]]

     not want the public to see the documents, since it seems 
     clear that the legal requirements were not met. It is 
     invoking the state secrets privilege--saying that as a matter 
     of national security, it will not confirm that any company 
     cooperated with the wiretapping or permit the documents to be 
     disclosed in court.
       So Mr. Rockefeller and other senators want to give the 
     companies immunity even if the administration never admits 
     they were involved. This is short-circuiting the legal 
     system. If it is approved, we will then have to hope that the 
     next president will be willing to reveal the truth.
       Mr. Rockefeller argues that companies might balk at future 
     warrantless spying programs. Imagine that!
       This whole nightmare was started by Mr. Bush's decision to 
     spy without warrants--not because they are hard to get, but 
     because he decided he was above the law. Discouraging that 
     would be a service to the nation.
       This debate is not about whether the United States is going 
     to spy on Al Qaeda, it is about whether it is going to 
     destroy its democratic principles in doing so. Senators who 
     care about that should vote against immunity.

  Madam President, if I can, I will read from the USA Today, which also 
had a good editorial on this subject matter, dated October 22, 2007. It 
is entitled, ``Our View On Your Phone Records: Immunity Demand For 
Telecoms Raises Questions.''

       As history shows, mass snooping can sweep up innocent 
       Anyone who has ever watched TV's Law & Order: SVU knows how 
     easy it is for police to get the bad guys' LUDs--``local 
     usage details,'' better known as telephone calling records. 
     They only need to get a prosecutor to sign a subpoena.
       Eavesdropping on calls or reading e-mails is a bit tougher. 
     A warrant must come from a judge, and stronger evidence is 
     needed. Even so, it is an efficient process that serves law 
     enforcement's needs while guarding against arbitrary 
     intrusions into the privacy of innocent people.
       But whether those protections still exist in national 
     security cases is very much in doubt.
       Since Sept. 11, 2001, the Bush administration has 
     repeatedly bypassed the special court set up to preserve 
     balance. Now, with Congress threatening to restore some level 
     of protection, the administration is insisting on legal 
     immunity for telecommunications companies that might have 
     turned over records improperly. Last week, a key Senate 
     committee agreed.
       The request alone is enough to raise suspicion, 
     particularly given the nation's history.
       In the 1960s and '70s when law enforcement and spy agencies 
     launched mass snooping against U.S. citizens, some of the 
     data ended up being used for nefarious purposes, such as IRS 
     tax probes, that had nothing to do with protecting the 
       That is the danger when an administration can tap into 
     phone records without court oversight, and it is what's at 
     issue now.
       The administration has repeatedly bypassed the special 
     national security court, arguing that the urgency of the war 
     on terrorism justified its actions.
       In one particularly troubling intrusion, the National 
     Security Agency (NSA), a Pentagon-run spy agency, built a 
     database--with cooperation from some telecom companies--that 
     includes America's domestic calls. The extent of the program 
     remains hidden, one reason many in Congress are reluctant to 
     grab the company's immunity.
       According to the account of one former CEO, the NSA foray 
     has already led to abuse. When Qwest, one of the nation's 
     largest telecom companies, refused to go along with the NSA 
     program--because Qwest lawyers considered it illegal--the NSA 
     allegedly retaliated by denying Qwest other lucrative 
     government contracts. Further, the requests to participate, 
     according to former Qwest chief executive Joseph Nacchio, 
     came six months before the 9/11 attacks. Nacchio's 
     allegations are in court findings unsealed this month that 
     are part of his battle over a conviction of insider trading.
       If the Senate measure becomes law, telecom companies will 
     get immunity from nearly 40 lawsuits without the public 
     knowing what the companies or the government did. Never mind 
     that six of the lawsuits were brought by state officials--
     from New Jersey to Missouri--concerned about possible 
     violation of citizens' privacy.
       There might be some valid reason to grant immunity. The 
     Senate committee agreed after seeing details. But even if 
     there is, the companies should be compelled to tell the 
     public the precise nature and reach of the program, and the 
     program should be put firmly under court review.
       The Senate measure also would place minimal court 
     supervision over future surveillance ventures. A far more 
     sensible House Democratic measure would give the Foreign 
     Intelligence Surveillance Court a greater role.
       That system works well, even in emergencies. In the 
     harrowing minutes after the Pentagon was attacked on 9/11, 
     the court's chief judge, stuck in his car, granted five 
     surveillance warrants from his cell phone.
       Speed, obviously, is important. Nevertheless, it can be 
     achieved without discarding protections that long ago proved 
     their worth.

  The Dallas Morning News had a good article as well on Friday, October 
19, of last year, entitled ``Beck and Call: Verizon too eager to 
surrender phone records'':

       Verizon's willingness to turn over customer telephone 
     records when the government asks--even though investigators 
     often make such requests without a court order--is a 
     troubling practice.
       The company may be motivated by a desire to help--or to 
     avoid government confrontation. But Verizon's approach, 
     disclosed in a letter to Congress this week, is the wrong way 
     to go about this.
       The burden of proof rests with the federal government to 
     prove its need for the records. Except in rare instances, 
     investigators must take their records requests to a judge who 
     then can determine whether to issue a warrant. The 
     Constitution intends just that, in language that fairly 
     balances privacy fears and law enforcement.
       Yet the Bush administration insists on continuing to push 
     the post-9/11 civil liberties vs. security debate in the 
     wrong direction. Because telecom companies that have complied 
     with its requests now face huge lawsuits from citizens-rights 
     groups, the administration wants a law to grant immune 
     businesses sued for disclosing information without court 
       Congress is right to look at the immunity proposal with a 
     skeptical eye, especially since the administration has been 
     reluctant to explain details of its controversial 
     surveillance program to lawmakers. The law would further 
     erode the privacy firewall and remove another layer of checks 
     and balances.
       The phone companies, meanwhile, have refused to tell 
     relevant congressional committees whether they participated 
     in the National Security Agency's domestic eavesdropping 
     program. Their silence is based on concerns that they might 
     illegally divulge classified information if they talk to 
     Congress in too much detail.
       Yet Congress and the courts have legitimate oversight roles 
     in issues of privacy and national security. Due process is 
     necessary to promote transparency and accountability in a 
     democracy. These are foundational principles, even in the 
     more dangerous post-9/11 world.

  There is a further piece I think is worthy of reading, written in 
December of 2005 by a former majority leader of this great body, Tom 
Daschle. It's called ``Power We Didn't Grab.'' Tom Daschle was deeply 
involved, I should point out, in the negotiations dealing with many of 
these matters, particularly in the wake of the resolution that was 
drafted granting the President the authority to go after al-Qaida in 
Afghanistan. Alberto Gonzales later argued that with the adoption of 
that resolution, Congress was granting the President authority to 
conduct the warrantless surveillance that is the subject of our 
discussion this evening.
  That resolution was the subject of some negotiation over several days 
before it was presented for a final vote in this body. So it is worthy 
of consideration that Tom Daschle would write a piece in the Washington 
Post when Alberto Gonzales made the argument that the President's 
authority to require the phone companies to comply with his request 
without a court order was, in fact, never the subject of those 
  I will read Tom Daschle's words on December 23, 2005:

       In the face of mounting questions about news stories saying 
     that President Bush approved a program to wiretap American 
     citizens without getting warrants, the White House argues 
     that Congress granted it authority for such surveillance in 
     the 2001 legislation authorizing the use of force against al 
     Qaeda. On Tuesday, Vice President Cheney said the president 
     ``was granted authority by the Congress to use all means 
     necessary to take on the terrorists, and that's what we've 
       As Senate majority leader at the time, I helped negotiate 
     that law with the White House counsel's office over two 
     harried days. I can state categorically that the subject of 
     warrantless wiretaps of American citizens never came up. I 
     did not and never would have supported giving authority to 
     the president for such wiretaps. I am also confident that the 
     98 senators who voted in favor of authorization of force 
     against al Qaeda did not believe that they were also voting 
     for warrantless domestic surveillance.
       On the evening of Sept. 12, 2001, the White House proposed 
     that Congress authorize the use of military force to ``deter 
     and pre-empt any future acts of terrorism or aggression 
     against the United States.'' Believing the scope of this 
     language was too broad and ill defined, Congress chose 
     instead, on Sept. 14, to authorize ``all necessary and 
     appropriate force against those nations, organizations or 
     persons [the president] determines planned, authorized, 
     committed, or aided'' the attacks of Sept. 11. With this 
     language, Congress denied the president the more expansive 
     authority he sought and insisted that his authority be used 
     specifically against Osama bin Laden and al Qaeda.

[[Page S876]]

       Just before the Senate acted on this compromise resolution, 
     the White House sought one last change. Literally minutes 
     before the Senate cast its vote, the administration sought to 
     add the words ``in the United States and'' after 
     ``appropriate force'' in the agreed-upon text. This last-
     minute change would have given the president broad authority 
     to exercise expansive powers not just overseas--where we all 
     understand he wanted authority to act--but right here in the 
     United States, potentially against American citizens. I could 
     see no justification for Congress to accede to this 
     extraordinary request for additional authority. I refused.
       The shock and rage we all felt in the hours after the 
     attack was still fresh. America was reeling for the first 
     attack on our soil since Pearl Harbor. We suspected thousands 
     had been killed, and many who worked in the World Trade 
     Center and the Pentagon were not yet accounted for. Even so, 
     a strong bipartisan majority could not agree to the 
     administration's request for an unprecedented grant of 
       The Bush administration now argues those powers were 
     inherently contained in the resolution adopted by Congress--
     but at the time, the administration clearly felt they weren't 
     or it wouldn't have tried to insert the additional language.
       All Americans agreed that keeping our nation safe from 
     terrorists demands aggressive and innovative tactics. This 
     unity was reflected in the near-unanimous support for the 
     original resolution and the Patriot Act in those harrowing 
     days after Sept. 11. But there are right and wrong ways to 
     defeat terrorists, and that is a distinction this 
     administration has never seemed to accept. Instead of 
     employing tactics that preserve Americans' freedoms and 
     inspire the faith and confidence of the American people, the 
     White House seems to have chosen methods that can only breed 
     fear and suspicion.
       If the stories in the media over the past week are 
     accurate, the president has exercised authority that I do not 
     believe is granted to him in the Constitution, and that I 
     know is not granted to him in the law I helped negotiate with 
     his counsel and that Congress approved in the days after 
     Sept. 11. For that reason, the president should explain the 
     specific legal justification for his authorization of these 
     actions, Congress should fully investigate these actions and 
     the president's justification for them, and the 
     administration should cooperate fully with that 
       In the meantime, if the president believes the current 
     legal architecture of our country is sufficient for the fight 
     against terrorism, he should propose changes to our laws in 
     the light of day.
       That is how a great democracy operates. And that is how 
     this great democracy will defeat terrorism.

  Those were eloquent words from our former majority leader who was, as 
I said, deeply involved in the negotiations crafting the resolution 
that was adopted almost unanimously, allowing us to attack al-Qaida, to 
defeat them in Afghanistan. Regrettably, Osama bin Laden and too many 
of his operatives are still on the loose. But that language gave the 
President the authority to act against them. He specifically wanted 
more authority at home. The majority leader and those who worked with 
him rejected that argument and that resolution adopted in 2001, 48 
hours after the attack, specifically excluded the kind of activity that 
Alberto Gonzales and Vice President Cheney claimed was granted in that 
  It was worthy to note the language of Senator Daschle during that 
  I am going to read one more piece, if I may, again going back to 
October. It is ``Immunity for Telecoms May Set Bad Precedent, Legal 
Scholars Say. Retroactive problems could create problems in the 
future.'' This is by Dan Eggen. This was written in October of 2007.
  I made the argument earlier that I was concerned about the precedent-
setting nature of what we are doing. This evening I have been reaching 
back 30 years to language used by our predecessors in this Chamber, 
Republicans and Democrats, who were part of the Church Commission that 
crafted the FISA legislation and the language they used, which easily 
could have been written yesterday and describing the debate we are 
having these days. We are calling upon them to guide us as we make our 
decisions about how to proceed in this day's work with the different 
threats we face, but the threats our predecessors faced were not small 
threats--the Soviet Union, a nuclear holocaust, significant problems of 
surveillance. They had the courage and the wisdom to step back and to 
create a structure that allowed us to maintain that balance between 
security and liberty.
  So it is important because I am concerned that at some future date 
that the votes tomorrow may give a strong precedent to those who have 
never liked the idea of Federal courts granting warrants to conduct 
surveillance but prefer this be done at the mere request of an American 
  I made the case that when the Framers fashioned this Republic of 
ours, had efficiency been their goal, they never would have established 
a written system that had so many inefficiencies in it. In fact, 
requiring the checks and balances of an executive, judicial, and 
legislative branch with all of the requirements that we insist upon 
make this system terribly inefficient in many ways. But the Founders of 
this Republic were not only concerned about what we did but how we did 
things. It is terribly important to be mindful of that in these 
debates. Clearly, we need to gather information, and we need to be able 
to do it in an expeditious fashion. But we also need to make sure that 
how we do that is not going to violate more than 220 years of history, 
of guaranteeing the rights and liberties of individual citizens.

  Thirty years ago, a previous Senate found a way to do that with the 
establishment of the secret Federal courts. These courts are 
established by the Chief Justice of the United States, who appoints 
sitting Federal judges anonymously to serve on these courts. None of us 
ever get to know who they are. But as I pointed out earlier, even on 9/
11, a cell phone one of these secret FISA judges was able to respond 
instantaneously to the request being made to conduct surveillance 
necessary in the minutes after 9/11.
  So it is important not only what we do about today's problem but the 
message we send, the precedent we set for future Congresses when 
confronted in their day, as they will be, with challenges regarding the 
balance between security and liberty.
  So this article, written by Dan Eggen, I think has value, talking 
about how retroactive protection could create problems in the future.

       When previous Republican administrations were accused of 
     illegality in the FBI and CIA spying abuses of the 1970s or 
     the Iran Contra affair of the 1980s, Democrats in Congress 
     launched investigations or pushed for legislative reforms.
       But last week, faced with admissions by several 
     telecommunication companies that they assisted the Bush 
     administration in warrantless spying on Americans, leaders of 
     the Senate Intelligence Committee took a much different tack, 
     opposing legislation that would grant those companies 
     retroactive immunity from prosecution or lawsuits.
       The proposal marks the second time in recent years that 
     Congress has moved toward providing legal immunity for past 
     actions that may have been illegal. The Military Commissions 
     Act, passed by the GOP-led Congress in September of 2006, 
     provided retroactive immunity for CIA interrogators who could 
     have been accused of war crimes for mistreating detainees.
       Legal experts say the granting of such retroactive immunity 
     by Congress is unusual, particularly in a case involving 
     private companies. Congress, on only a few occasions, has 
     given some form of immunity to law enforcement officers, 
     intelligence officials, or others within the government, or 
     to some of its contractors, experts said. In 2005, Congress 
     also approved a law granting firearms manufacturers immunity 
     from lawsuits by victims of gun violence.
       ``It's particularly unusual in the case of the telecoms, 
     because you don't really know what you are immunizing,'' said 
     Louis Fisher, a specialist in constitutional law with the Law 
     Library of the Library of Congress. ``You don't know what you 
     are cleaning up.''
       As part of a surveillance package approved Thursday by the 
     Senate Intelligence Committee, some telecommunications 
     companies would be granted immunity from about 40 pending 
     lawsuits that allege they violated Americans' privacy and 
     constitutional rights by aiding a warrantless wireless 
     surveillance program instituted after the September 11, 2001, 

  I might point out here--and I will digress for a second--that we 
heard earlier testimony that this program may have actually started 
prior to the attacks of 9/11. There has been testimony submitted in 
courts by one of the telecoms, Qwest's CEO, that in fact a request was 
made of them to actually provide warrantless surveillance in January of 
2001, when the administration took office, long before the attacks of 
9/11. So it seems to me that alone ought to be the subject of some 
  We have all accepted the notion that immediately after 9/11, whether 
we liked it or not, it was understandable how in the emotions of the 
moment, that companies, at the request of an administration, even here 
an administration requesting warrantless surveillance, might have 
acted. Not that we

[[Page S877]]

would agree or like it but most would understand it.
  My objection, as I said earlier, is not that it went on but that it 
went on for the next 5 years and would still be ongoing were it not for 
the whistleblower and the reports in the media. But what is troubling 
to me is we are assuming this all began after 9/11. There may now be 
some evidence it began before 9/11, which would debunk a lot of 
arguments given on why we should grant retroactive immunity. I merely 
point this out because we read earlier in testimony here that suggested 
this might have been done earlier.
  At any rate, I will continue from Mr. Eggen's article talking about 
the provision we are talking about here.

       The provision is a key concession to the administration and 
     the companies, which lobbied heavily for it.

  Referring to the retroactive immunity.

       Supporters argue the legislation is needed to avoid unfair 
     punishment of private firms that took part in good-faith 
     efforts to assist the government.
       In arguing in favor of such protections earlier this month, 
     President Bush said any legislation ``must grant liability 
     protection to companies who are facing multibillion dollar 
     lawsuits only because they are believed to have assisted in 
     the efforts to defend our Nation following the 9/11 
       The head of the intelligence panel, Sen. John D. 
     Rockefeller, made a similar argument after the bill was 
     approved last week. ``The onus is on the administration, not 
     the companies, to ensure that the request is on strong legal 
     footing,'' he said.
       Jeffrey H. Smith, a CIA general counsel during the Clinton 
     administration who now represents private companies in the 
     national security area, said the risk of litigation poses 
     an unfair threat to government officials or others who 
     have good reason to believe they are acting legally. He 
     noted that many intelligence officers now feel obliged to 
     carry liability insurance.
       ``It seems to me that it's manifestly unfair for the 
     officers that conducted that program and the telecoms to now 
     face prosecution or civil liability for carrying out what was 
     on its face a totally lawful request on the part of the 
     government,'' Smith said. ``It's not the same as Abu Ghraib 
     or a CIA officer who beats someone during an interrogation.''
       But civil liberties groups and many academics argue that 
     Congress is allowing the government to cover up possible 
     wrongdoing and is inappropriately interfering in disputes the 
     courts should decide. The American Civil Liberties Union last 
     campaigned against the proposed Senate legislation, saying in 
     a news release Friday that ``the administration is trying to 
     cover its tracks.''
       Sen. Russell Feingold said in a statement last week that 
     classified documents provided by the White House ``further 
     demonstrate that the program was illegal and that there is no 
     basis for granting retroactive immunity to those who 
     allegedly cooperated.'' His office declined to elaborate on 
     the records, which were reviewed by a Feingold staffer.
       Retired Rear Adm. John Hutson, dean and president of the 
     Franklin Pierce Law Center in Concord, N.H., said he is 
     concerned about the precedent a new immunity provision might 

  The article quotes him.

       ``The unfortunate reality is that once you've done it, once 
     you immunize interrogators or phone companies, then it's easy 
     to do it again in another context. It seems to me that as a 
     general rule retroactive immunity is not a good thing . . . 
     It's essentially letting Congress handle something that 
     should be handled by the Judiciary.''

  These are, I think, very good articles that shed light on some of the 
important issues we need to be looking at.
  Let me, if I can, go back and talk about the Church Commission. I 
think it is important because we are relying so heavily on the work 
they have done and the establishment in the immediate aftermath of the 
Church Commission of the FISA Courts. I have quoted from some of them 
earlier this evening, but I think it is worthwhile to go back and 
listen to their words. Again, I want you to know these words were 
written 30 years ago, but I think people can appreciate how timely the 
language is when you consider the debate we are having. It is hard not 
to wonder how these words weren't prepared less than 24 hours ago, in 
preparation for this debate. I think their warnings and admonitions 
have a timeliness to them that are worthy of including in this 
discussion at this moment. So let me quote from the Church report:

       Americans have rightfully been concerned since before World 
     War II about the dangers of hostile foreign agents likely to 
     commit acts of espionage. Similarly, the violent acts of 
     political terrorists can seriously endanger the rights of 
     Americans. Carefully focused intelligence investigations can 
     help prevent such acts.
       But too often intelligence has lost its focus and domestic 
     intelligence activities have invaded individual privacy and 
     violated the rights of lawful assembly and political 
     expression. Unless new and tighter controls are established 
     by legislation, domestic intelligence activities threaten to 
     undermine our democratic society and fundamentally alter its 
       A tension between order and liberty is inevitable in any 
     society. A government must protect its citizens from those 
     bent on engaging in violence and criminal behavior or in 
     espionage or other hostile foreign intelligence activity. 
     Intelligence work has, at times, successfully prevented 
     dangerous and abhorrent acts, such as bombings and foreign 
     spying, and aided in the prosecution of those responsible for 
     such acts.
       But intelligence activity in the past decades has, all too 
     often, exceeded the restraints on the exercise of 
     governmental power which are imposed by our country's 
     constitution, laws, and traditions.
       We have seen segments of our government, in their attitudes 
     and action, adopt tactics unworthy of a democracy, and 
     occasionally reminiscent of the tactics of totalitarian 
     regimes. We have seen a consistent pattern in which programs 
     initiated with limited goals, such as preventing criminal 
     violence or identifying foreign spies, were expanded to what 
     witnesses characterized as ``vacuum cleaners,'' sweeping in 
     information about lawful activities of American citizens.
       That these abuses have adversely affected the 
     constitutional rights of particular Americans is beyond 
     question. But we believe the harm extends far beyond the 
     citizens directly affected.
       Personal privacy is protected because it is essential to 
     liberty and the pursuit of happiness. Our constitution checks 
     the power of government for the purpose of protecting the 
     rights of individuals, in order that all our citizens my live 
     in a free and decent society. Unlike totalitarian states, we 
     do not believe that any government has a monopoly on truth.
       When government infringes on these rights instead of 
     nurturing and protecting them, the injury spreads far beyond 
     the particular citizens targeted to untold number of other 
     American citizens who may be intimidated.
       Abuse thrives on secrecy. Obviously, public disclosure over 
     matters such as the names of intelligence agents or the 
     technological details of collection methods is inappropriate. 
     But in the field of intelligence, secrecy has been 
     extended to inhibit review of the basic programs and 
     practices themselves.
       Those within the executive branch and the Congress who 
     would exercise their responsibilities wisely must be fully 
     informed. The American people as well should know enough 
     about intelligence activities to be able to apply its good 
     sense to the underlying issues of policy and morality.
       Knowledge is the key to control. Secrecy should no longer 
     be allowed to shield the existence of constitutional, legal 
     and moral problems from the security of all three branches of 
     government or from the American people themselves.

  Those are incredible words that could. None of us could say it more 
eloquently than our colleagues did 30 years ago.
  I can't tell you all the names of the Republicans and Democratic 
Senators who wrote this language, but they came from all parts of the 
country. They were, many of them, veterans of World War II, had served 
in Korea. Dan Inouye was here. I know that. Senator Byrd, whom I sit 
next to, was here. Senator Ted Kennedy was here. Senator Ted Stevens 
was here for those debates. Those are the Members I can think of off 
the top of my head who were probably Members back in 1978 when this was 
written. Joe Biden was here as part of that debate. Patrick Leahy was 
here in 1978. I think Carl Levin and John Warner had just arrived. I 
think they had been elected that year. I am not sure.
  But these are wonderful Members who sat and realized we needed to set 
up that balance between security and liberty and gave us the FISA 
Courts, the Foreign Intelligence Surveillance Act. Tonight, as we 
consider whether to grant immunity to the telecom companies and close 
the door on determining the legality or illegality of their actions, I 
think these words have tremendous relevance. Every Member ought to take 
them and read them and think about them.
  I hear the words of the President, and I am disappointed he said he 
would veto the bill if we strip immunity. I have listened to Senator 
McConnell, my good friend from Kentucky, saying we have to adopt this 
because the President will veto the bill otherwise. That is not the 
basis upon which the Congress ought to act. I have rarely heard that 
argument made here. You can raise it, certainly, as a point, but the 
suggestion that Congress or this body ought to act differently because 
the President is going to veto something or threatens a veto is not the 
basis upon which we ought to make decisions, particularly when it comes 

[[Page S878]]

matters involving the rule of law and the Constitution of the United 
  Those issues of the Constitution and the rule of law ought to trump 
the reputational damage. The issues of the Constitution and the rule of 
law ought to trump the arguments somehow that the telecom companies 
will be less willing to step forward and help conduct the surveillance 
of our country when we are threatened by outsiders.
  I cannot undo some of the things that have been done already. I wish 
I could undo the Military Commissions Act. I wish I could the outrages 
that occurred at Abu Ghraib. I wish I could undo what has happened at 
Guantanamo Bay. I wish I could undo secret prisons and extraordinary 
renditions. But there is a pattern here. It is not just the one event 
or two, it has been a pattern of behavior almost from the very 
beginning that ought to be deeply troubling to every single one of us.
  So while I cannot undo those actions, why would I then add to that 
list by granting this retroactive immunity? What more do we need to 
know? Why are we being asked to do this? Why did this administration 
ask this committee to grant broad-based immunity to every single 
individual in our Government and our agencies, as well as to the 
telecom companies? What was behind that request? What did they fear 
when they sought that kind of unprecedented immunity, for both the 
private companies and every official involved in the decision to grant 
or insist upon this compliance? Why were they asking us to do that?
  So I know, while others have written about this here, I find it 
deeply troubling that we can once more add this to the destruction of 
tapes and the CIA, the U.S. attorneys scandal involving the Department 
of Justice and U.S. attorney's offices. All of these matters, again, 
are in and of themselves individual cases, and yet, when you step back 
and think about the totality of them, why would this Congress, at this 
hour, decide we are going to yet once again say: OK, we'll let you get 
away with it one more time.
  I wish I could go back and undo all of those abuses. I cannot. But we 
have the opportunity not to do this. All it will take is 39 other 
  All it will take is 40 of us here decide that at this moment in our 
history that we are going to stand up for the rule of law, we are going 
to stand up for the Constitution. No other issue we can get to is as 
important as the Constitution of the United States, no other issue is 
as important to me, ought to be to all Members, as the rule of law. And 
as I have done on five separate occasions since January 3, 1981, when 
as a 36-year-old I stood over here on the floor of the Senate, with 
Lowell Weicker standing beside me--I raised my right hand and took an 
oath to defend and uphold the Constitution of the United States. I am 
proud to have done it five different times, as every Member here has 
done at least once. What matter, what issue, would be more important 
than defending the Constitution of the United States?
  So tomorrow we may have the chance--40 of us--to not invoke cloture 
and to insist that we are going to fight for this principle of the rule 
of law and not add to this litany that is going to be revisited over 
and over again: the Military Commissions Act, waterboarding, Abu 
Ghraib, Guantanamo Bay, secret prisons, extraordinary renditions, U.S. 
attorneys scandal, Scooter Libby, destruction of CIA tapes. How many 
more do you need? Why not add this: retroactive immunity to the telecom 
industry, at the request of a President who did not want the courts to 
determine the legality or illegality of the actions?
  During a critical moment in American history, I for one am not going 
to allow that to happen.
  I realize I have been talking a long time here. May I inquire how 
long I have been speaking?
  The PRESIDING OFFICER (Ms. Klobuchar.) Two hours 25 minutes.
  Mr. DODD. As I say, I have already spent over 20 hours on this. And 
as I say, I have never engaged in extended debate in my 27 years 
because the matters were handled by others or because we came up with a 
resolution of issues. But I stand here tonight, as I have over the last 
several months--as many of my colleagues know, I interrupted a 
Presidential campaign to come back and spend 10 hours on the floor here 
when this matter came up in December, to raise my concerns about this 
issue. I do not want to try the patience of the staff and others, 
including my colleague who is patiently sitting in the Presiding 
Officer's chair with little or no relief. So more than 20 hours of 
making my case here is probably more than most people can tolerate. But 
I want people to know how much I care about this and how much I wish 
and hope and pray that this evening, Members, regardless of party, will 
stand up tomorrow for the rule of law.
  So tonight, my fervent prayer and hope is that when this vote occurs, 
first of all, that I will be surprised and that 50 of our colleagues 
here will join with Senator Feingold and myself and vote to strike this 
language from the Intelligence Committee bill. That would be the best 
result of all, and then we can send this bill to the other body and 
have it resolved and sent to the President, hopefully, for his 
signature. If that doesn't occur, then I hope 38 others would join 
Senator Feingold and me in voting against cloture in a historic moment 
and send this bill back to be revised to comply with the Judiciary 
Committee's decision excluding the retroactive immunity. That would be 
the second best result.
  With that, Madam President, after almost 2\1/2\ hours and the hours 
before, I yield the floor.