[Congressional Record: February 14, 2008 (Senate)]
[Page S1015-S1046]

                 Foreign Intelligence Surveillance Act

  Mr. CORNYN. Madam President, I come to the floor to express grave 
concern at reports that I hear out of the House of Representatives that 
they intend to adjourn and basically go on vacation for the next week 
or so without taking action on the Foreign Intelligence Surveillance 
Act reauthorization. That, of course, is the legislation we passed out 
of the Senate that provides the eyes and the ears for the intelligence 
community in the United States to detect and to deter future terrorist 
attacks against the United States.
  To me, it is unthinkable that the House of Representatives would 
adjourn and be so irresponsible as to leave this unfinished business 
undone and to leave America unprotected against future terrorist 
attacks. I know there is an argument that existing surveillance could 
be continued for up to a year. But what we are talking about is new 
contacts, new information that the intelligence community gets that 
would be impeded, impaired, and blocked by the failure of the House of 
Representatives to act on this critical piece of legislation that will 
expire on February 15 unless they act today or tomorrow. So it is the 
height of irresponsibility. I find myself questioning whether it could 
possibly be true that would happen.

[[Page S1016]]

  Also, one important part of the Senate legislation was to provide 
protection for the telecommunications carriers that may have cooperated 
with the U.S. Government shortly after September 11, 2001, in providing 
the means to listen in to al-Qaida and other foreign terrorists who 
were plotting and planning attacks against the United States and its 
  I think it is a terrible message from the House of Representatives, 
if they are not going to act in a way that provides protection for 
those citizens, whether they be individual citizens or corporate 
citizens, who are asked by their country to come to the aid of the 
American people and provide the means to protect them from terrorist 
attacks. What kind of message does that send, that we are going to 
basically leave them out twisting slowly in the wind and being left to 
the litigation--some 40 different lawsuits that have been filed against 
the telecommunications industry that may have cooperated with the 
Federal Government in protecting the American people. This is on a 
request at the highest levels, from the Commander in Chief, and upon a 
certification by the chief law enforcement officer of the United 
States, the Attorney General.
  What they were being asked to do was entirely appropriate and within 
the bounds of the law. But then, when the litigation ensues, to 
basically leave them hanging out to dry would be wrong. The Senate 
wisely addressed that issue. But if the House adjourns without passing 
the Senate version of the reauthorization of the Foreign Intelligence 
Surveillance Act, which includes protection for the telecommunications 
industry that may have participated in this lawful exercise of our 
powers to protect our country, it would again be the height of 
irresponsibility and send the message that next time a citizen, whether 
it is a corporate or individual citizen, is asked to come to the aid of 
their country, you better think twice and consult your lawyers because 
you are going to get sued and the Congress is not going to take 
appropriate measures to make sure those who helped protect the safety 
and security of the American public are protected.
  Finally, I don't have the information in front of me right now, but 
there are substantial news reports that indicate that a group of trial 
lawyers who stand to make considerable amounts of money in terms of 
legal fees off this litigation are substantial contributors to Members 
of Congress. I hope the evidence does not develop that there are 
decisions being made in the House of Representatives on the basis of 
the interests of special interest groups such as trial lawyers who 
stand to gain financially from continuing this litigation that should 
be brought to an end here and now.
  I am here primarily to voice my grave concern that while the Senate 
has acted responsibly--I know not everybody is happy with the outcome--
to address this issue, if the House of Representatives leaves town and 
leaves this matter undone, the security of the American people is in 
peril, and it would be a tragedy indeed if something were to happen as 
a result of our intelligence community being blind or deaf to the 
dangers that do work both within our shores and beyond.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from North Dakota is recognized.
  Mr. DORGAN. Madam President, let me say, I don't think anybody in the 
Congress, the Senate, or the House wishes our intelligence community to 
be blind or deaf. Obviously, we have a process in this country with the 
FISA Court that allows emergency actions. The opportunity to be able to 
engage in surveillance and the appropriate surveillance to make sure we 
are listening to terrorists and all of those things are available.
  There is a debate about how wide should the drift net be, that the 
administration might want to gather almost every communication 
everywhere in the world and data mine to find out who is saying what. 
That is an important conversation because it deals with the basic 
rights in our Constitution. I think there is no one in this Chamber or 
in the other who believes we want our intelligence community to be 
blind or deaf and to not have the opportunity to do the kind of 
surveillance necessary to protect our country. That is very important 
to state.



  Mr. BOND. Madam President, I will take a minute to update my 
colleagues on some information we received from the Director of 
National Intelligence in an open hearing that is going on in Hart 216 
right now. I thought it was important to clarify some points that he 
made in response to some very important questions raised by Chairman 
  Chairman Rockefeller asked what would happen if FISA expires--as it 
does on February 15--without being renewed. He asked, could these 
collections not continue? There is a very important ``yes, but''--for 
acquisitions that have been ordered by the FISA Court which have years 
in length; it is possible that those could continue. But the major 
problem the Director sees and the attorneys with him see is that if 
they needed to change targets, if they needed to change methods, if 
they needed to change means by which they gathered the information, 
they would not be able to do so.
  Furthermore, he highlighted a very real problem having to do with the 
private sector. As we have said on the floor before, the private sector 
carriers are absolutely essential to the operation, not only of FISA, 
foreign intelligence surveillance, but for work with the FBI and others 
on criminal matters. The fact that we have left the telecom carriers, 
that are alleged to have participated in the President's lawful terror 
surveillance program without liability protection, they are being 
advised by their general counsel of their responsibility under 
Sarbanes-Oxley, and others, that they could only cooperate with a fresh 
court order. Since there is no authority for additional court orders, 
they have a grave question as to whether they are risking not only 
their firm's reputation but under Sarbanes-Oxley certain duties to 
shareholders. That is why he felt it was necessary to get this measure 
that has passed the Senate implemented by the House.
  I also noted in my comments that the House passed its bill almost as 
long ago as the Senate passed its bill. At that time, the intelligence 
community said it was not workable, that the Rockefeller-Bond proposal 
that passed overwhelmingly 2 days ago was the only thing that was 
workable; and the fact that the House says they don't have time to work 
on it ignores the fact that they have known for a couple of months that 
they were going to have to make significant revisions in their measure 
if they wanted it to be passed and signed into law. So my sympathies 
for the House. I understand they are pressed for time, but they knew 
this was coming. They have a measure before them that could be passed, 
which I hope they will pass.
  One other thing. I asked the Director about some of the very 
misdirected, improper, wrong and, in some instances, irresponsible 
suggestions made on the floor about the tactics that the CIA may use in 
questioning high-value detainees. The DNI made it clear, as I attempted 
to make clear yesterday, all of the things banned by the Army Field 
Manual, such as burning, electrocuting, beating, sexual harassment--all

[[Page S1032]]

those things are not only repugnant but they are not permitted to be 
used by any of our intelligence agencies. He reiterated that 
waterboarding is not permitted under the political guidelines that 
include legislation and that we have passed here in direct orders.
  So what was done yesterday does not prevent torture. That is 
prevented already. It doesn't prevent cruel, degrading, and inhumane 
interrogation techniques. It does not prevent other cruel, degrading, 
or inhumane acts by the intelligence agencies. Those are already 
  What the measure that was passed yesterday does--were it to be signed 
into law, and I certainly hope it will not be--would be to deny the 
intelligence community the ability to use techniques that are similar 
to but different from the techniques authorized in the Army Field 
Manual. These enhanced techniques have been used only on roughly a 
couple of dozen detainees in the custody of the CIA. They are lawful, 
and they have produced some of the most important intelligence that the 
intelligence community has gathered to identify high-level members of 
al-Qaida and other terrorist organizations, and to interfere, impede, 
and stop terror attacks directed not only at our troops abroad, our 
allies, but the United States.
  Unfortunately, some people were misled by comments that were 
bordering on irresponsible on the floor yesterday, to say that we 
banned torture, cruel, inhumane, and degrading conduct. That is not 
what happened. We tied the hands of the CIA with the purported 
provision that would severely limit their ability to gain information 
using totally lawful techniques in questioning high-value detainees. 
Rather than being a blow for freedom, reaffirming our values, it merely 
proposed to cripple our intelligence collection.
  I thank the Chair and yield the floor.
  The PRESIDING OFFICER. The Senator from Texas is recognized.
  Mr. CORNYN. Madam President, I commend the ranking member and 
chairman of the Select Committee on Intelligence for the outstanding 
work they have done on this critical piece of legislation, passing it 
in the Intelligence Committee by a vote of 13 to 2, which was no easy 
feat. This passed in the Senate by a strong bipartisan vote of 68 to 
29, I believe. It is about as strong a bipartisan vote as you can 
possibly get. This is a well-thought-out piece of legislation that, 
once sent over to the House of Representatives, we were told the House 
of Representatives, rather than to deal with this legislation, would 
simply decide to fold their tent and go home. That is the height of 
  The Senator from Missouri described why it is so important for us to 
be able to listen to our enemies: because, simply, it saves American 
lives. We learned a harsh lesson on September 11, 2001, which is that 
we are not safe even within our own shores.
  There are those who believe in a radical ideology that celebrates the 
murder of innocent men, women, and children, and who are willing to use 
instruments of destruction, whether they be primitive tools such as 
flying an airplane into a building, or chemical, biological, or nuclear 
weapons--whatever they can get--to kill innocent civilians. We have to 
do everything in our power to protect ourselves. Thank goodness, due to 
the noble work of our men and women in uniform who are fighting in 
places such as Afghanistan, Iraq, and elsewhere around the world, we 
are keeping the enemies of the United States on the run.
  The best way we can deter these terrorist attacks is to listen in on 
conversations and communications. That is the only way we are going to 
be able to continue to do it. For the House of Representatives to know 
that they are causing our intelligence community to go deaf to the 
communications of terrorists who are plotting attacks against the 
United States is the height of irresponsibility. I hope it is not true 
and that they reconsider.
  My hope is they will come back and they will pass this important 
legislation that will encourage our telecommunications industry to 
cooperate with the lawful requests of the Commander in Chief as 
certified by the chief law enforcement officer of the United States, 
and that is the Attorney General, so we can continue to listen to these 
communications in a lawful and legal way and protect the American 
people. For the House of Representatives to refuse to take up this 
matter and to vote on it is, again, I say, the height of 
irresponsibility, and it endangers American lives.
  I yield the floor.



  Mr. McCONNELL. Mr. President, we have a serious crisis confronting 
our country as a result of the House of Representatives' refusal to 
take up the Senate-passed Foreign Intelligence Surveillance Act. We 
know for a fact the following: We know that the Senate approved 
yesterday, with 69 votes, a Foreign Intelligence Surveillance Act 
crafted by Senator Rockefeller and Senator Bond that came out of the 
Intelligence Committee 13 to 2. This is about as bipartisan as it ever 
gets around here. We know in addition this bill is the only bill that 
can pass the House of Representatives. They took up yesterday a 21-day 
extension of existing law, and it was defeated. It was defeated because 
there were 20 to 25 House Democrats who didn't want the bill at all, 
want it to die, want to walk away from it and leave the American people 
  In fact, there is a bipartisan majority for the Senate-passed bill in 
the House, and that is the only bill for which there is a bipartisan 
majority in the House. Now we have all learned that the House of 
Representatives is going to close up shop and simply leave town, 
arguing that somehow allowing this law to expire will not harm America.
  We know that at the heart of this struggle is retroactive liability 
for communications companies that stepped up, in the wake of the 9/11 
disaster, at the request of the Government, to help protect us from 
terrorism. As a result, there are numerous lawsuits pending against 
these companies, I assume largely by the American Civil Liberties 
Union. The CEOs and the boards of directors of these companies have a 
fiduciary responsibility to their shareholders. These lawsuits have the 
potential to put them out of business. As a result of doing their duty 
and responding to the request of the President of the United States to 
help protect America, they run the risk of being put out of business. 
That is what is before us. This retroactive liability problem 
continues. It is not solved by continuation of existing law.
  In addition, with the law expiring, it hampers opportunities 
prospectively in the future to surveil new terrorist targets overseas. 
So the notion that somehow no harm is done by allowing the law to 
expire is simply incorrect. In fact, it borders on outrageous.
  This was going to be another example of bipartisan cooperation on 
behalf of the American people. We saw it at the end of the year last 
year when we passed a bipartisan AMT fix without raising taxes on 
anybody else. We passed an energy bill without a tax increase and 
without a rate increase. We met the President's top line on the 
appropriations bills. And, yes, we appropriated $70 billion for Iraq 
and Afghanistan without any kind of micromanagement. At the beginning 
of this year, we came together. It was a bit challenging in the Senate, 
but we came together and passed a bipartisan stimulus bill to try to 
deal with our slowing economy. We did it in record time. In fact, the 
President had a signing ceremony 2 days ago.
  I am wondering why this new bipartisan spirit we experienced in 
December and again in January is breaking down on a matter that is 
extraordinarily important to protecting the American people. It is 
absolutely irresponsible for the House of Representatives to simply 
throw up its hands and leave, particularly when the only measure that 
enjoys a bipartisan majority in the House is exactly what enjoyed a 
bipartisan majority in the Senate. It is the only measure that can pass 
the House. So the refusal of the House leadership to take up and pass 
the only bill that could possibly pass is an act of extraordinary 
irresponsibility. Nothing else would pass over there.
  I don't know why the House is even thinking about leaving town. They 
have an important responsibility to help protect the American people. 
The opportunity is right before them, and they will not take it.
  Mr. CORNYN. Will the Senator yield for a question?
  Mr. McCONNELL. I am happy to yield the Senator from Texas for a 
  Mr. CORNYN. I ask the distinguished Republican leader whether the 
voluntary cooperation of the telecommunications companies that have 
cooperated at the request of the Government and upon certification by 
the chief law enforcement agent of the country, the Attorney General, 
is in jeopardy, if we merely continue the current law as opposed to 
passing the bipartisan Senate bill? And if that is the case, doesn't 
that just as effectively deny us access to terrorist communications as 
if we did not pass the law itself?
  Mr. McCONNELL. My understanding is the question suggests the answer. 
The leadership of these companies has indeed a Hobson's choice, two bad 
alternatives. They either continue to respond to the request of the 
American Government to protect the homeland and then run the risk of 
squandering all the assets of their companies and, thereby, generating 
a lot of shareholder lawsuits against the directors for violating their 
fiduciary responsibility. It is a terrible position to be put in. They 
are entitled to be able to cooperate with the request of our Government 
and not squander all the assets of their companies.
  Mr. LEAHY. Will the Senator yield for a question?
  Mr. CORNYN. Will the Senator yield for another question?
  Mr. McCONNELL. I yield to my friend from Texas.
  Mr. CORNYN. Mr. President, I would like to ask the distinguished 
Republican leader if, in fact, because of the burden of these lawsuits, 
some 40 different lawsuits against any telecommunications companies 
that may have participated, if, in fact, they chose not to participate 
in this program, is there any other option available to the 
intelligence authorities to listen in on communications between 
terrorists who are bent on wreaking havoc, death, and destruction on 
the American people? Is there anywhere else to go?
  Mr. McCONNELL. I don't think so, Mr. President. This is the only 
solution to the problem. What is tragic, we know as a result of a 
letter from the so-called blue dog Democrats, the more conservative 
Democrats in the House, to Speaker Pelosi for sure that there is a 
bipartisan majority in the House for passing the bill the Senate 
passed. This is what the blue dog Democrats had to say to the Speaker.

       Following the Senate's passage of a FISA bill, it will be 
     necessary for the House to quickly consider FISA legislation 
     to get a bill to the President before the Protect America Act 

  That, of course, will be Saturday.


  Referring to the blue dog Democrats----

     fully support the Rockefeller-Bond FISA legislation, should 
     it reach the House floor without substantial change. We 
     believe these components will ensure a strong national 
     security apparatus that can thwart terrorism across the globe 
     and save American lives in our country.

  The blue dog Democrats, coupled with House Republicans, make it 
absolutely certain there is a bipartisan majority for our bill in the 

       Further, the consequences of not passing such a measure 
     could place our national security at undue risk.

  This is 21 blue dog Democrats in the House requesting the Speaker to 
take up the bill that passed the Senate with 69 votes, obviously an 
overwhelmingly bipartisan vote, pass it and send it to the President 
for signature. This refusal to act is stunning, almost 
  Mr. CORNYN. Will the Senator yield for one final question?
  Mr. McCONNELL. I will.
  Mr. CORNYN. The Republican leader is aware that the House of 
Representatives only recently had widely publicized hearings into the 
use of steroids

[[Page S1034]]

and human growth hormone by baseball players. There has also been an 
action taken recently to hold a former White House counsel and the 
Chief of Staff of the President in contempt. Yet there appears to be no 
time available on the House calendar to do things that actually would 
protect the lives of the American people. Perhaps it is an obvious 
answer, but it would seem to me to be clear that this ought to be a 
high priority. Before we get to these kinds of political machinations 
or perhaps publicity stunts, we ought to first protect the security of 
the American people by passing this bipartisan legislation.
  Mr. McCONNELL. Mr. President, it is my understanding that the House 
was dealing with steroid use in baseball and trying to punish some 
White House official over some internal dispute. It does strike me that 
is a strange use of time, when we are 2 days from the expiration of 
arguably the most important piece of legislation we have passed since 
9/11 to protect us here at home. It is no accident that we haven't been 
attacked again since 9/11. There are two reasons for it. One is, we 
went on the offense and have had great success in Afghanistan and Iraq, 
killing a lot of terrorists, many of them at Guantanamo, which I happen 
to think is a good place for them. A lot of the rest of them are on the 
run. I am often asked: We don't have Osama bin Laden. I say: Well, we 
wish we did. But I can assure you, he is not staying at the Four 
Seasons in Islamabad. He is in some cold cave somewhere looking over 
his shoulder, wondering when the final shoe is going to drop. So going 
on offense was an important part of protecting America and also this 
extraordinarily significant legislation about which we have had 
testimony from the highest officials that it has actually helped us 
thwart attacks against our homeland. There isn't anything we are doing 
that is more important than this, certainly not looking at steroid use 
in baseball. As important as that may be, it certainly does not rise to 
this level, or censoring White House officials.
  Mr. LEAHY. Will the Senator yield for a question?
  Mr. McCONNELL. I yield to my friend from Arizona for a question.
  Mr. KYL. Mr. President, the first question I have is: Could the 
intelligence community acquire new targets, if the Protect America Act 
expires, without going to the FISA Court for some kind of an additional 
  Mr. McCONNELL. Mr. President, it is my understanding they will not be 
able to do that. So in addition to the retroactive liability issue, 
which clearly is not solved by failing to act, we have this problem 
that the Senator from Arizona has raised with regard to new targets. We 
are clearly more vulnerable as a result of allowing this legislation to 
expire, which will happen Saturday if the House of Representatives does 
not act.
  Mr. KYL. If the Senator will continue to yield, my recollection of 
the words of Admiral McConnell, Director of National Intelligence, is 
that--and I ask the leader to verify if I recall this correctly; I 
think I am recalling it correctly--it doesn't matter whether the 
Protect America Act expires or does not expire or is simply 
reauthorized in its exiting form; the reality is, unless a new law is 
passed that contains the retroactive liability protection feature, it 
will become or is becoming increasingly difficult for the 
telecommunications companies to provide the service the U.S. Government 
needs them to provide to acquire this intelligence.
  I wish to make sure I am not misstating this, that it is increasingly 
difficult for these telecommunications companies to provide the service 
our Government needs to collect this intelligence.
  Mr. McCONNELL. My understanding is, the Senator from Arizona is 
correct. It is not exactly that these public, spirited corporate 
leaders do not want to help prevent terrorist attacks. It is that the 
exposure to their companies as a result of these lawsuits runs the risk 
of destroying the company and then opening them up to shareholders' 
suits for irresponsible actions or violations of their fiduciary 
responsibilities to their shareholders.
  They are in an impossible position. We have, in effect, put them in 
an impossible position by failing to provide for them the retroactive 
immunity from liability they clearly deserve. These were public, 
spirited Americans responding to a request from the Government to help 
protect us at home. What they got for it was a couple of scores of 
  Mr. KYL. I thank the leader.
  Mr. REID addressed the Chair.
  Mr. McCONNELL. Mr. President, I still have the floor.
  Mr. REID. I am sorry about that.
  Mr. McCONNELL. But I will be happy to yield.
  Mr. REID. I did not want to interrupt the distinguished Republican 
leader. Have you finished?
  Mr. McCONNELL. I will be happy to yield the floor.
  The PRESIDING OFFICER (Mr. Whitehouse). The majority leader is 
  Mr. LEAHY. Mr. President, will the distinguished majority leader 
yield for a question from me?
  Mr. REID. Sure.
  Mr. LEAHY. Mr. President, I tried to get the distinguished Republican 
leader to yield, but he was unwilling.
  Let me ask the distinguished majority leader, is it not a fact that 
these public, spirited telephone company owners are threatening to turn 
off wiretaps, according to the press accounts, that have been legally 
ordered through search warrants because the U.S. Government has failed 
to pay them millions of dollars, and does not pay them the millions of 
dollars? I just wonder if any of the legislation we are talking about 
might be mandating our own Government to pay the bills for the 
  I ask that only because it seems this public spiritedness goes one 
way if they want to be immunized or the administration wants to be 
immunized from anybody asking them questions, but it goes a different 
way if it comes down to the question of getting paid.
  Mr. REID. My understanding is, there are millions of dollars owed to 
the telephone companies, Mr. President.
  Mr. LEAHY. Thank you, Mr. President.
  Mr. REID. Mr. President, my friend from Texas talked about a 
publicity stunt. That is what we have, but it is inverse. The publicity 
stunt is all from the White House, supported by the people in the 
Senate, the Republicans, who always walk lockstep with whatever 
President Bush wants.
  First of all, Mr. President, legal scholars are almost uniform in 
saying that existing orders are broad enough and they would be broad 
enough for the next year. Whatever is happening now is good for next 
year. In fact, if someone disagrees with that, you have existing FISA 
law that allows application for an emergency.
  Mr. President, let me say this: I sent to the President of the United 
States today a letter. Let me read this:

       Dear Mr. President:
       I regret your reckless attempt to manufacture a crisis over 
     the reauthorization of foreign surveillance laws. Instead of 
     needlessly frightening the country, you should work with 
     Congress in a calm, constructive way to provide our 
     intelligence professionals with all needed tools while 
     respecting the privacy of law-abiding Americans.
       Both the House and the Senate have passed bills to 
     reauthorize and improve the Protect America Act. Democrats 
     stand ready to negotiate with Republicans to resolve the 
     differences between the House and Senate bills. That is how 
     the legislative process works. Your unrealistic demand that 
     the House simply acquiesce in the Senate version is 
     preventing that negotiation from moving forward.
       Our bicameral system of government was designed to ensure 
     broad bipartisan consensus for important laws. A FISA bill 
     negotiated between the House and the Senate would have firmer 
     support in Congress and among the American people, which 
     would serve the intelligence community's interest in creating 
     stronger legal certainty for surveillance activities.
       That negotiation should take place immediately. In the 
     meantime, we should extend the current Protect America Act. 
     Earlier this week you threatened to veto an extension, and at 
     your behest Senate Republicans have blocked such a bill. 
     Yesterday every House Republican voted against an extension.

  So it is obvious the marching orders have come from the White House. 
That was a paraphrase from me. That was not in the letter. I continue 
the letter:

       Your opposition to an extension is inexplicable. Just last 
     week, Director of National Intelligence McConnell and 
     Attorney General Mukasey wrote to Congress that ``it is 
     critical that the authorities contained in the Protect 
     America Act not be allowed to expire.''

[[Page S1035]]

  In commentary, Mr. President, I say this is from the head of the 
National Intelligence Agency, Director McConnell, and General Mukasey, 
our Attorney General. They said:

       [I]t is critical that the authorities contained in the 
     Protect America Act not be allowed to expire.
       Similarly, House Minority Leader Boehner has said 
     ``allowing the Protect America Act to expire would undermine 
     our national security and endanger American lives, and that 
     is unacceptable.'' And you yourself said at the White House 

  That is today, Thursday--

       ``There is really no excuse for letting this critical 
     legislation expire.'' I agree.

  I agree, Mr. President.

       Nonetheless, you have chosen to let the Protect America Act 
     expire. You bear responsibility for any intelligence 
     collection gap that may result.
       Fortunately, your decision to allow the Protect America Act 
     to expire does not, in reality, threaten the safety of 
     Americans. As you are well aware, existing surveillance 
     orders under the law remain in effect for an additional year, 
     and the 1978 FISA law itself remains available for new 
     surveillance orders. Your suggestion that the law's 
     expiration would prevent intelligence agents from listening 
     to the conversations of terrorists is utterly false.
       In sum, there is no crisis that should lead you to cancel 
     your trip to Africa. But whether or not you cancel your trip, 
     Democrats stand ready to negotiate a final bill, and we 
     remain willing to extend existing law for as short a time 
     or as long a time as is needed to complete work on such a 

  I signed that ``Harry Reid.''
  Mr. President, the President has created a crisis. As I have said on 
the Senate floor, during the past 7 years he has become increasingly 
proficient at scaring the American people. That is what he is trying to 
do again today. Cancel his trip to Africa for this? But we, Mr. 
President, are willing to work with him. The expiration of the law 
stands on the shoulders of one person: George Bush. I am sure his ear 
has been whispered in several times in the last week or so by the Vice 
President. But the President is the one responsible ultimately. He has 
instructed Republicans in the House not to agree to any extension, and 
obviously the Senate Republicans also.

                   Unanimous Consent Request--S. 2615

  So, Mr. President, I ask unanimous consent that the Senate proceed to 
the consideration of Calendar No. 571, S. 2615; the bill be read a 
third time and passed, and the motion to reconsider be laid upon the 
table, with no intervening action or debate.
  The PRESIDING OFFICER. Is there objection?
  Mr. McCONNELL. Mr. President, reserving the right to object.
  Mr. REID. This is a 15-day extension.
  Mr. McCONNELL. Yes. Reserving the right to object, there is no need 
for an extension. This current law expires Saturday. We know 68 Members 
of the Senate have already voted for a Protect America Act that would 
extend the law for 6 years. We know a majority of the House of 
Representatives, on a bipartisan basis, thinks that law ought to be 
taken up and passed. That is what we ought to be doing.
  I am sure the Democrats in the House are grateful to their good 
friend, the majority leader, for trying to protect them from their 
actions. But the fact is, there is only one reason we have a crisis. It 
is because the House Democratic leadership refuses to act on a bill 
that enjoys bipartisan majority support in the House of Representatives 
that we have already passed overwhelmingly. Therefore, I object.
  The PRESIDING OFFICER. Objection is heard.

                  Unanimous Consent Request--H.R. 3773

  Mr. REID. Mr. President, I ask unanimous consent that the Senate 
request the House to return the papers of H.R. 3773, FISA legislation; 
and that if the House agrees to the request, the Senate insist on its 
amendment, request a conference with the House on the disagreeing votes 
of the two Houses, and the Chair be authorized to appoint conferees on 
the part of the Senate, with no intervening action or debate.
  Is it my understanding the first request was objected to. Is that 
  The PRESIDING OFFICER. There was objection. Objection was heard.
  Is there objection?
  Mr. McCONNELL. Mr. President, reserving the right to object, there is 
no need for a conference when you have an overwhelming bipartisan 
majority of the Senate in favor of the bill and a bipartisan majority 
of the House in favor of the same bill that the Senate has already 
passed. There is no need to go to conference because we know where the 
majority of the Senate is and we know where the majority of the House 
is. Why would we want to have a conference when the work the Senate has 
done, the Rockefeller-Bond bill, is supported by a bipartisan majority 
in the House? Therefore, I object.
  The PRESIDING OFFICER. Objection is heard.
  The majority whip.
  Mr. DURBIN. Mr. President, what we are witnessing is not a crisis in 
security. It is a crisis in logic. How can the Republican leader stand 
here and argue how endangered America would be if we allowed this law 
to expire and then object to extending the law? How can the minority 
leader, Senator McConnell, stand here and argue that we should pass 
this legislation and then object when the majority leader asks for a 
conference committee?
  This is not a crisis in security. It is a crisis in logic. This is a 
manufactured political crisis by the White House and the Republican 
leaders. If the Republican leader was so focused on giving this power 
to the President, he could have said, ``I do not object,'' when the 
majority leader asked for a 15-day extension.
  But, no, they want a press release. They want something to put in 
front of the American people to take their minds off the state of our 
economy, to take their minds off the fact that we are just, 
unfortunately, a few lives away from losing 4,000 soldiers in this war 
in Iraq. They want to manufacture a security crisis.
  The Senator from Kentucky should know--and I am sure he has able 
staff to alert him--the law, as it currently exists, the FISA law--even 
if we do not change it--gives ample authority to this President to 
continue to monitor the conversations of those who endanger the United 
  But, instead, as Senator Harry Reid has said repeatedly, this 
President is trying to make America afraid--make America afraid. I 
thought there was a great leader who said once: The only thing we have 
to fear is fear itself. It turns out that it is fear itself that is 
motivating this Republican leadership. If they would have provided 30 
votes yesterday in the House of Representatives, this law would have 
been extended. But they had their marching orders from the White House 
to vote no, and they did. So the attempt to extend it failed. If only 
30 Members on the Republican side in the House had stood up and voted 
to extend the law, it would have happened.
  If the Republican minority leader, Senator McConnell, had not 
objected just moments ago to the unanimous consent request of Senator 
Reid, the Democratic leader, this law would have been extended.
  It is obvious to those following the debate, the crisis is in the 
logic on the Republican side. You cannot have it both ways. You cannot 
complain that the law is going to expire, and then object to an 
extension. It does not work that way. Even at the University of 
Louisville, it does not work that way. Their philosophy department 
would tell you that does not track, it does not follow.
  So I would urge the Senator from Kentucky, if you really are 
concerned about whether this law is extended, please reconsider your 
objection to extending this law, as Senator Reid has asked repeatedly. 
I think the American people know what is going on here. This is not 
about security. This is about political cover. This is about 
manufacturing a political argument and manufacturing a crisis--a crisis 
of the White House's own creation. The President and his party bear 
full responsibility if any intelligence gaps result.
  The PRESIDING OFFICER. The Republican leader.
  Mr. McCONNELL. Now, Mr. President, facts are a stubborn thing--a very 
stubborn thing--and I am sure the Democrat leadership over in the House 
appreciates the efforts being made by the majority leader and the 
majority whip to protect them from the obvious. The obvious is--and 
they know this even at the University of Illinois--that the majority of 
the Senate has spoken, an overwhelming majority of the Senate, not just 
on final passage which was 68 to 29, and cloture, which was 69 to 29, 
but also the Feingold amendment

[[Page S1036]]

was defeated 63 to 35, the Dodd amendment 67 to 31, the Feingold 
amendment 60 to 37, the Specter-Whitehouse amendment 68 to 30. This is 
not close. This bill went out of the Senate with a riproaring, 
bipartisan majority. And we know for a fact--and facts are a stubborn 
thing, I say to my good friend from Illinois--we know for a fact that 
the Rockefeller-Bond bill is supported by a bipartisan majority in the 
House of Representatives. We know that. It is a matter of simple 
addition. So why would we want to have a short-term extension to 
provide an opportunity to resolve a dispute that doesn't exist?
  The majority has spoken in the Senate. The majority will speak in the 
House if given the opportunity to speak. They are being denied the 
opportunity to speak because the House runs in a different way from the 
Senate, and the House leadership can simply refuse to take up a matter 
that is supported by a bipartisan majority in the House. In this 
particular instance--talk about a publicity stunt or creating a 
crisis--what created the crisis was the refusal of the House of 
Representatives to act. Now, the notion that somehow they didn't have 
time--we have been dealing with this issue since last August--since 
last August. The House had previously sent a bill over here that was 
unacceptable. We are all familiar with the subject matter.
  It is time to let a majority of the House of Representatives speak--
legislate. They are waiting there to be given permission to ratify the 
fine work led by Senator Rockefeller and Senator Bond here in the 
Senate and ratified by a total of 68 out of 100.
  So we have a crisis, but the crisis is created by the majority in the 
House and its refusal to accept the obvious, which is that a majority 
of the Congress wishes to pass the legislation in the form that will 
achieve a Presidential signature.
  Mr. President, I yield to the Senator from Texas for a question.
  Mr. CORNYN. Mr. President, I ask the distinguished Republican 
leader--the majority whip has said there is some sort of crisis in 
logic, but I ask the minority leader to respond. Isn't the crisis in 
logic that the telecommunications carriers, whose cooperation is 
absolutely essential to the continuation of our ability to listen in on 
communications between terrorists, isn't that what is at risk here, by 
merely extending the current law and finally to come to grips with the 
bipartisan legislation that passed the Senate and is supported by a 
bipartisan majority in the House?
  Mr. McCONNELL. Mr. President, I say to my friend from Texas, he is 
entirely correct. There are multiple lawsuits pending against the 
companies. They are surely being pressured by their shareholders and 
their boards of directors on the issue of whether continued cooperation 
means the demise of the companies. The status quo, as the Senator from 
Texas indicates, is not acceptable. Not only that, but we know for a 
fact that the continuation of the status quo hampers the ability to go 
up on new targets prospectively, so we not only have a deteriorating 
situation in terms of continued cooperation from the communications 
companies--not because they are not public-spirited citizens, not 
because they don't want to help America, but because they run the risk 
of squandering all the assets of their companies and enhanced exposure 
to new actions that might occur by terrorists.
  So the status quo is clearly not acceptable, I say to my friend from 
Texas. I think his question suggests the answer.
  This is a very serious matter and I regret that we are where we are. 
We had gotten off, I thought, to a pretty good bipartisan start this 
year. I had hoped--and frankly expected--that we would be having 
another signing ceremony down at the White House on the Rockefeller-
Bond bill in the next few days and we could breathe easy that we had 
done our job and had protected the American people to the maximum 
extent possible for the foreseeable future.
  I yield the floor.
  The PRESIDING OFFICER. The majority leader is recognized.
  Mr. REID. Mr. President, facts are stubborn. The facts are that 
within the last few days, we received a communication from the Attorney 
General of the United States and the man who is the Director of 
National Intelligence saying: ``It is critical the authorities 
contained in the Protect America Act not be allowed to expire.'' That 
is a fact. That was followed up with a statement by the House minority 
leader who said: ``Allowing the Protect America Act to expire would 
undermine our national security and endanger American lives, and that 
is unacceptable.'' And today, the President of the United States said: 
``There is really no excuse for letting this critical legislation 
  Those are the facts. So when we ask to accomplish what they want, 
there is an objection.
  It is very clear, this is not an effort by the White House to protect 
the American people, it is an effort to protect the phone companies. It 
is not the American people.
  We heard from the Attorney General, we heard from the Director of 
National Intelligence, the minority leader of the House, and the 
President of the United States. We agreed to do what they want to do to 
try to extend. The Republicans were given the orders not to do what 
they wanted. Those are the facts.
  Now another issue that is very important: The majority in the House 
of Representatives and the majority in the Senate have both spoken. A 
basic elementary rule of this Government is that we have a bicameral 
legislature. We have the House and the Senate. In November, the House 
passed by a majority what they thought should happen in the way of 
extending this. We, a few days ago, decided what we thought we should 
do. It is elementary that after that happens, there must be a 
conference. They won't let us go to conference--``they'' meaning the 
Republicans. So a majority of the House voted in November for a 
different bill. That is why we need a negotiation. That is why we need 
a conference. That is how a bill becomes law. That is the way it is. 
That is the law. We have already decided that facts are stubborn. 
Clearly, if we were arguing this case to a jury--and I think probably 
as well the American people--they probably know that this is an effort 
by the President to scare us and in exchange for that, he wants to try 
to take care of the phone companies, not the American people.

  The PRESIDING OFFICER. The Senator from West Virginia is recognized.
  Mr. ROCKEFELLER. Mr. President, my name has been invoked frequently 
here over the last several weeks as passing a bill which was not 
favored by the majority of the people of my aisle, and the phrase 
actually was used by the majority leader, who is never wrong, that we 
did what the President wanted.
  I didn't do what the President wanted. I did what I thought was the 
right thing to do. I was joined by a variety of my colleagues, 
including the Presiding Officer, who reserved the right to have other 
views on the floor, which he did, but ended up voting for the bill.
  What absolutely baffles me is that we are literally--we can do this 
FISA bill. I am meeting tomorrow morning with the chairman of the House 
Intelligence Committee, who may be the only House member in town--I 
have no idea, but I don't care because he is the chairman--on what we 
can do to save this. I am absolutely convinced that we can have--in the 
hearing this afternoon, the Presiding Officer heard me put this to the 
Director of National Intelligence, who couldn't answer it because it 
was not a policy question, but more of a political question. I said: 
You are going to get the majority of your information all the way 
through August. The President praised our bill and then came out the 
next day and said: Of course, if the House doesn't pass it, we are 
going to lose our intelligence and we will be vulnerable to the 
terrorists. That was a misstatement, I think an annoying misstatement.
  I don't understand. I simply don't understand, if something is good 
and if the President is willing to sign a bill which this Senator in 
his conscience feels is right, and it takes 15 days to do it, what the 
minority leader needs to understand--and he served in the House. I am 
sure he understands that they have now been jammed twice. They have 
been jammed. There is something called human nature, and it is not 
illegal to talk about human nature on the floor of the Senate. They 
have been jammed. They have been

[[Page S1037]]

pushed down to a 2-day period or a 3-day period when they had to make a 
decision. They resent that. But if they were given a period of time, 
they would come, in my judgment, to where we are, and the bill would go 
to the President and he would sign it.
  Now, let me say something more. What people have to understand around 
here is that the quality of the intelligence we are going to be 
receiving is going to be degraded. It is going to be degraded. It is 
already going to be degraded as telecommunications companies lose 
interest. Everybody tosses that around and says: Well, what do you 
mean? I say: Well, what are they making out of this? What is the big 
payoff for the telephone companies? They get paid a lot of money? No. 
They get paid nothing. What do they get for this? They get $40 billion 
worth of suits, grief, trashing, but they do it. But they don't have to 
do it, because they do have shareholders to respond to, to answer to. 
There is going to be a degrading of the nature of our intelligence in 
some very crucial areas if we follow the path that the minority leader 
is suggesting, because we will go right back to where we were last 
August, and that will be a further jolt to the telecommunications 
companies, because they will understand that you cannot count on the 
Congress, you cannot count on us to make policy which will give 
stability to their--not government agencies but to their corporations.
  Fifteen days. We are off for a week, so maybe it has to be 25 days. I 
don't know. I don't care about that. We could have the same bill on 
this floor from the House. I am convinced of it. It is human nature. 
Give them a chance to have a grudge. I am going to meet with the 
chairman tomorrow. Let him rip into me for not giving the House an 
adequate chance for the second time to discuss this matter. But I am 
absolutely convinced that we could have that bill on the floor in this 
body and pass it and send it to the President. Why they don't want to 
do that, I do not know.
  I yield the floor.