[Congressional Record: January 25, 2008 (Senate)]
[Page S305]


  Mr. McCONNELL. Mr. President, just one further observation with 
regard to my friend's remarks.
  The Bond-Rockefeller bill is exactly the way we ought to be doing our 
business. It came out of the Intelligence Committee 13 to 2. It is 
supported on a bipartisan basis. It is supported by the President of 
the United States. We have a product that was carefully negotiated by 
Senator Bond and Senator Rockefeller, approved by the Intelligence 
Committee 13 to 2, and supported by the President of the United States. 
That is my definition of a bipartisan accomplishment. Now the question 
is, Can we finish the job and get a signature?
  This is not about frightening the American people. The American 
people should be frightened, and remember full well what happened on 9/
11. They also remember with gratitude that it has not happened again 
for 6 years. The reason for it, obviously, is we have been on offense, 
going after the terrorists where they are, and we have improved our 
  An integral part of protecting the homeland is the measure before us, 
carefully crafted on a bipartisan basis, supported by the President of 
the United States. If we want to finish the job and have a bipartisan 
accomplishment that all of us can be proud of, the way to do that is to 
pass this bill, send it to the House, urge them to take it up and pass 
it, and send it to the President, who awaits it to affix his signature.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The majority leader is recognized.
  Mr. REID. Mr. President, there is no question that Senator 
Rockefeller and Senator Bond have worked hard on this legislation. 
Also, we have had good work from Senator Leahy and Senator Specter of 
the Judiciary Committee. Senator Rockefeller wants a piece of 
legislation to pass very badly. He does not support cloture in this 
effort that is going to take place on Monday because he believes the 
bill needs to be changed. Just because there is a bill that comes out 
of committee doesn't mean we shouldn't deal with it here on the floor. 
Senator Rockefeller is not going to support cloture on this bill on 
Monday. It is a decision he made, and he has made it because we have 
not had the opportunity to do things to this piece of legislation that 
he believes should happen. It is a rare piece of legislation that comes 
out of one of these major committees that comes to the floor that 
doesn't require some improvement.
  So it is simply unfair to say that Senator Rockefeller and Senator 
Bond's piece of legislation should go through as if it were written in 
script on top of some big mountain. It was written in a committee room 
with a lot of discussion and votes, and some of the amendments passed, 
some didn't. It came to the floor. We all are happy it came to the 
floor. But at this time, even Senator Rockefeller believes there should 
be changes in it, and he will not support cloture, as he told me last 
night, because he feels it has been handled so poorly by the minority 
here on the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Missouri is 


[Congressional Record: January 25, 2008 (Senate)]
[Page S305-S310]

                      FISA AMENDMENTS ACT OF 2007

  Mr. BOND. Mr. President, we are on the FISA bill, I believe. Has the 
bill been reported? Is it before us?
  The ACTING PRESIDENT pro tempore. It has not yet been reported.
  The clerk will report the pending business by title.
  The legislative 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 

[[Page S306]]

       Feingold/Dodd amendment No. 3909 (to amendment No. 3911), 
     to require that certain records be submitted to Congress.
       Bond amendment No. 3916 (to amendment No. 3909), of a 
     perfecting nature.
       Reid amendment No. 3918 (to the language proposed to be 
     stricken by Rockefeller/Bond amendment No. 3911), relative to 
     the extension of the Protect America Act of 2007.


  Mr. BOND. Mr. President, I wish to address the FISA bill. I also 
commend our majority and minority leaders on their statements about the 
lives that have been lost by our brave troops in Iraq and Afghanistan.[...]


  It is now important to talk about FISA. I am glad we are on the 
floor. I think, as the majority leader has said, all first-degree 
amendments need to be filed by 1 o'clock this afternoon. We are 
available to do business and we look forward to working with our 
colleagues to see if we can make this happen in a timely fashion.
  I believe it is important this morning, for the Record and for the 
benefit of my colleagues and the American people, to clear up several 
things mentioned in yesterday's consideration of the FISA bill. When I 
say ``FISA,'' I mean the Foreign Intelligence Surveillance Act--the act 
that authorizes the President and the intelligence community to use 
electronic signals collection to get information on terrorist enemies 
and other threats to the United States.

  First, I will state the obvious. Yesterday, we had a very positive 
result in the Senate. The Senate Judiciary Committee substitute to the 
Senate Intelligence Committee bill failed on a clear vote. I believe 
the Members of this body recognized it was a partisan, unworkable, 
inadequate bill. It was written without any consultation with the 
intelligence community or the lawyers who know how FISA works and how 
signals intelligence is carried out. It was done without the 
participation of any of the Republican members of the Judiciary 
Committee, and it failed.
  Chairman Rockefeller and I have, as has been said, a bipartisan bill 
worked out over a number of months, as the occupant of the chair knows 
so well. We worked long and hard. We didn't always agree, but we came 
to a bill that passed 13 to 2.
  There were two problems with the bill--a good idea but unworkable as 
introduced. So we worked with the sponsors of that provision and had a 
very good idea that we need to protect American citizens, when they are 
abroad, from warrantless surveillance. It took 24, 25 pages to work out 
the details for it. But I believe that provision we now have in the 
managers' amendment, the pending amendment before us on this bill, 
accomplishes the purposes all of us on the committee support.
  I voted against the original proposal in the committee because I 
didn't think it was workable, but we have fixed that, and I am proud to 
support it.
  These are the fixes Chairman Rockefeller and I put together, with the 
help of Senator Wyden and the occupant of the chair, so we now have a 
functional, working amendment. The drafting has been fixed, and I 
believe we have a much better bill. We have an improvement over the 
original FISA bill and the Protect America Act, which was a necessary 
short-term extension that allowed the continuation of electronic 
intercepts against foreign targets overseas, without having a court 
order, which was absolutely necessary because the change in the 
technology in electronic communications had put too many of the 
overseas collections, which used to be outside the scope of FISA, 
within the scope of FISA.
  The Protect America Act had a lot of nasty things said about it 
yesterday. They were all wrong. What the Protect America Act did not 
do, however, involves two very important things the Senate Intelligence 
Committee did. By a 13-to-2 vote, we added the protection for American 
citizens overseas. It is very important. It added other protections as 
well. It also said those companies, the carriers that may have worked 
with the intelligence community in adopting or effectuating the 
collection of signals intelligence against terrorists planning attacks 
in the United States, should not be sued in civil court. That 
provision--protecting any private sector entities that cooperated but 
not Government officials from lawsuits--was necessary to end a string 
of lawsuits brought by opponents of intelligence collection who want to 
destroy the system, who seek money damages but who really seek to 
harass and drive communication companies out of the business of 
cooperating with intelligence officials.
  If they are successful, if they can drive and harass and bludgeon 
private sector entities from cooperating with intelligence officials, 
then our country will be significantly less safe. Those of us who have 
been on the Intelligence Committee heard the discussion that there are 
threats that continue to be raised and that this world is still a 
dangerous place. We need to be able to find out what our enemies are 
planning. We cannot have the entire Nation as fortified as the Capitol 
grounds and the White House grounds. We have a free and open country. 
Our only hope of being safe is to identify planned terrorist attacks 
before they occur.
  So what we have before us today is a workable, bipartisan bill. It is 
supported by the Director of National Intelligence. I will refer to 
Admiral McConnell as the DNI, the head of that agency, and the 
President would sign it into law. We started with a solid bipartisan 
update to FISA that is needed to protect the country to increase civil 
liberty protections and protections for the privacy rights of 
Americans. We should now all heed the first law of responsible 
leadership, and that is, first and foremost, do no harm with any 
amendments to be considered in the bill.
  I hope my colleagues will think long and hard before offering 
amendments, to make sure they have no unintended consequences and that 
they do no harm.
  One good way to do that is to talk with the intelligence community. 
Talk with the office of the DNI, talk with the Department of Justice. 
If you have a good idea, talk with them. Maybe there is a way your 
objectives can be achieved without interfering with the ability to 
collect information. If you don't, if things are offered that would 
significantly impair our intelligence community's ability to collect 
the vitally important intelligence we need to have, then I will have to 
oppose it and I will urge my colleagues to oppose it.
  We constructed a delicate, bipartisan compromise that is a good bill. 
I hope we will refrain from trying to deconstruct it or try to make the 
bill worse in any way before final passage. The American people want to 
have well-regulated intelligence collection that keeps the country 
safe, and they deserve no less.
  That brings us to where we are today. Senator Feingold yesterday 
offered an amendment over which the Department of Justice expressed 
real concerns. I understand those concerns, so I offered a second-
degree amendment that gives the Senator from Wisconsin three-quarters 
of what he sought, yet refrains from mandating that the executive 
branch provide Congress with

[[Page S308]]

pleadings containing very sensitive sources and methods submitted to 
the FISA Court. I will refer to that court as the FISC, the Foreign 
Intelligence Surveillance Court.
  Three months ago in a committee compromise, I agreed to include the 
provisions of the Senator from Wisconsin in our bill, which calls for 
the opinions, orders, and decisions of the FISC prospectively, and in 
my second-degree amendment, I propose to go further and agree with him 
to accept his mandate to require the community to go back 5 years to 
dig up all the past orders and opinions which are of significant 
consequence but go back and find all those and give them to us.
  We have received in the Intelligence Committee, on a semiannual 
basis, the reports of FISC, orders and opinions of significance, and 
they have been available for review by our staff for each 6-month 
period. But we will order them to go back and provide them. I am not 
sure what he is digging for, but I think we are willing to work with 
him. It will be a burden on the community, but I think that is 
information that might arguably be useful to those of us with oversight 
  I am not willing to agree to mandating that pleadings be turned over, 
and my second-degree amendment eliminates them from his mandate. It 
also stipulates that this mandate would be levied with due regard to 
sensitive sources and methods.
  Even though I believe this mandate for tranches of documents, 
truckloads perhaps, puts a tremendous burden on officials in the 
Department who have already given us semiannual reviews, since now they 
will have to go back and find, produce, screen, redact, and submit them 
to Congress, I am willing to work with the Senator from Wisconsin and 
others to include them up to the point of pleadings. I hope this will 
be viewed as a reasonable compromise.
  Regrettably, instead of working with me on this issue, the Senator 
from Wisconsin attacked my efforts to reach a compromise saying ``a 
ridiculous notion and disrespectful of the United States Congress.'' I 
was accused of ``hiding behind a tragedy in this country to make 
arguments that have no merit'' and trying to help the intelligence 
community ``prevent the Members of Congress from seeing the pleadings 
provided to an article III court.''
  These insinuations are not only inaccurate, but I believe they come 
close to violating debate rule XIX of the Senate, which says:

       No Senator in debate shall, directly or indirectly, by any 
     form of words impute to another Senator or to other Senators 
     any conduct or motive unworthy or unbecoming a Senator.

  I do not believe the accusations against me were appropriate in the 
debate. They only underscore the divisive and partisan intentions 
behind some of the efforts we are seeing on the floor, and I hope we 
can avoid future such accusations.
  I will restate for the record my reasons for eliminating pleadings 
from the required submission to the intelligence communities. These are 
not policy documents, policy of which the Intelligence Committee said: 
We don't like the policy of where you are going. These are not broad 
issues for legislative implementation. They are detailed analyses of 
sources and methods for collecting intelligence. They are submitted to 
the article III judge sitting at that time as the FISC judge to provide 
a basis for a warrant based on probable cause to allow electronic 
surveillance of persons within the United States, U.S. persons.
  It is possible those pleadings would include, No. 1, the name or 
other identifying features of the sensitive sources who provided the 
intelligence information they set forth. That could risk getting 
somebody killed. They could provide the identification and location of 
the collection facility. They could provide information on the means of 
collection. They would obviously have to provide information on the 
target and other relevant information.

  In the intelligence business, these are the ultimate sources and 
methods. They are highly classified because, if they were to leak out, 
there would be very serious harm done to individuals and perhaps even 
locations where collection occurs.
  So I believe the intelligence community has a legitimate reason for 
saying we are not going to share the sources and methods that identify 
the names of the individuals, the sources. I do not see that is a 
necessary element of our oversight, to know Joe Doe was the one who 
gave us the information on Ralph Roe and they needed to get the 
information through facility X using means Y. That is kept at a closely 
compartmental level.
  We have already in the bill that Senator Rockefeller and I have been 
able to forge with great bipartisan support a solid compromise piece of 
legislation, and that is the model on which we should move ahead.
  Today we have heard again some accusations that the minority side--my 
side--is stalling this important legislation. A quick review of the 
FISA legislation history over the past year is in order.
  The President declared he was bringing the surveillance program under 
FISA in January of 2007, 1 year ago. In April of last year, because of 
some changes in court orders, the DNI asked us to modernize FISA so it 
would be compatible with new technology. On May 1 of last year, he 
testified in open session before our committee and again he asked us to 
modernize FISA. Shortly thereafter, we were informed in the 
Intelligence Committee about the ruling of the FISC that altered the 
collection ability of that program, to the point where our intelligence 
agencies were shut down with regard to vital intelligence collection 
that would protect us.
  What was the response of our Intelligence Committee? Regrettably, 
nothing. We did absolutely nothing. I urged that we act, that we move 
forward on it, but our committee and Congress did nothing.
  Through May, June, and July of last year, the DNI's pleadings to 
modernize FISA grew stronger. After he came before our committee in 
May, he came before Members of the Senate in closed session in our 
confidential, secure hearing room. Over 40 Members were there, and he 
told us in July it was absolutely essential we move, that everybody 
said it was essential we move. We did not move until the final week, 
and we still did not have a committee hearing.
  I brought the DNI's bill, the Protect America Act, to the floor on 
Wednesday, before we had a vote on it on Friday. There were comments 
yesterday about how partisan and secret and one-sided the negotiations 
were, but it was not our efforts for the support of the DNI that were 
secret and one-sided. There were secret negotiations on the majority 
side prior to the passage of the Protect America Act.
  Several committee chairmen got together, shutting out Republicans and 
shutting out members of the Intelligence Committee from any 
consideration of their proposals. They were not vetted with the 
Director of National Intelligence.
  The DNI has been accused of going back on his word. I managed to get 
in finally at the end of some of those negotiations, and I can tell you 
that the DNI said he will go back and check with his lawyers on these 
issues. He did not agree to incorporate the changes that were suggested 
and, as suspected, when he viewed some of the proposals, he found they 
were unworkable.
  We never saw the bill the committee leaders on the majority side 
proposed to offer until less than an hour before it appeared on the 
Senate floor--before we were voting, actually, when it appeared on the 
Senate floor.
  During that time, the majority and minority members of the 
Intelligence Committee asked me for more information about the Protect 
America Act. I had a session in my office for members of the committee, 
bipartisan, going over with the DNI what the details of the Protect 
America Act were.
  Fortunately, on a bipartisan basis, we approved the Protect America 
Act. It was a stopgap. It was meant to serve for 6 months, but it got 
us back in the business of collecting vital signals intelligence. That 
is where we needed to be. We were not there.
  That was on August 3. Fortunately, on August 4, the House passed the 
bill, and on August 5, the President signed it, and we were back in 
business collecting information on new targets who were coming up on 
our screen.
  Because of the need to add a 6-month sunset, which I agreed with all 
parties on both sides was a good idea, that 6-month sunset expires in 1 
more week.

[[Page S309]]

It expires next Friday. Knowing that this law would soon expire, when 
the Senate returned from the August recess in September, the 
Intelligence Committee began working on a new FISA bill, and after 6 
weeks of constant work, deliberations, compromise, extensive 
discussions among staff, with staff, the members, with the DNI--and the 
occupant of the chair knows how much time and effort went into that--we 
produced the carefully crafted compromised legislation before us today 
on a 13-to-2 vote out of the committee.
  This is a model for the law we should pass in the Senate, a 
bipartisan product. The majority leader tried to bring up this bill in 
December before the recess, and I commend him for it. But majority 
Senators filibustered the bill.
  Make no mistake about it, the majority stalled FISA last month and 
filibustered the bill. At that time, the majority leader made a 
commendable plea to his colleagues. He stated any amendment offered to 
this bill, in view of its delicate nature and the bipartisan compromise 
it represents, should be required to meet a 60-vote threshold to clear 
any procedural hurdles in the Senate. This would also ensure it 
remained a bipartisan product.
  If we look at the history of the important legislation we passed, it 
passed this past year with 60 votes--60 votes--to ensure there will be 
a bipartisan bill. Neither party can pass something alone, without 
bipartisan compromise--getting 60 votes. The Protect America Act 
required 60 votes: That is how it was brought to the floor. The 
partisan majority committee leader's bill came to the floor with a 60-
vote requirement and it failed. We got the Protect America Act by 
meeting the 60-vote threshold.

  Sixty votes, for those who may be following this elsewhere, is what 
is needed to invoke cloture to shut off a filibuster, but it is a good 
principle when you have a very contentious, important, and technical 
  I commended the majority leader for his leadership and agree 
wholeheartedly with him now. In fact, if he were able to follow through 
with that offer now, then we would have already passed FISA last night. 
The fact is there is a majority of Senators who will not give their 
consent for such an agreement. They would prefer to deconstruct the 
Senate Intelligence Committee compromise and, by simple majority vote, 
transform the bill before us into a partisan product, thus gutting the 
bipartisan support--and the DNI's support, I would add--in this 
important legislation. That is little bit shortsighted, I believe.
  If a majority can be mustered to undo the important compromises 
worked out with the intelligence community, with the DNI, you can go 
through the act of passing the bill, but it is not going to be signed, 
and the monkey is going to be back on our back. We have an opportunity 
to pass a bill here that can be signed into law to keep our country 
safe. If we want to be in the situation where we were last summer, 
where our intelligence community was effectively deaf and blind to 
terrorist threats, then go ahead and tear up this bill, take it apart, 
leave it with no support from the intelligence community. And, by 
definition, if it is not supported by the intelligence community, it 
will not be signed into law by the President.
  I am asking that we go back to the procedure we followed before in 
passing the Protect America Act, that we used in passing other 
important pieces of legislation, and make it a bipartisan effort. The 
people of this country are crying out for bipartisanship. We got the 
Protect America Act on a bipartisan basis. We passed a bill out of the 
Senate committee that far exceeded the 60-percent test. We need to deal 
with this bill under the same rules. Gutting the bill with a bare 
majority, and plurality, as could happen under the current situation, 
is a bad approach. I say to my colleagues that if they can agree to a 
60-vote threshold for all amendments offered, then we can start voting 
on any and all of them right now, and we will go through them. There 
are some very important amendments, and there are very good arguments 
for those amendments. I hope my arguments on the other side are better. 
But we have to deal with this on a 60-vote basis. What I am not willing 
to do right now, and our minority leader is not and our side of the 
aisle is not, is to allow this bipartisan product to be dismantled on 
the Senate floor by partisan efforts that make FISA unworkable, loses 
the DNI's support because it won't work, and thus the President's 
signature. It makes for good politics but it fails to protect America.
  If the majority will work with us, then we are happy to have any and 
all amendments. I know the leaders may still come up with an agreement 
of that sort, but barring that, I don't see a way around this because 
we are not going to accept, by majority vote, a jumbled-up structure 
that leaves the intelligence community without the ability effectively, 
efficiently, and within proper constitutional and statutory 
restrictions to collect the intelligence we need to keep this country 
safe. We have to have a good bill. We have incorporated far more 
protections in the Senate substitute than have ever been in FISA 
before, and I think those of us on the Intelligence Committee, the 
occupant of the chair, can take great credit for protections we have 
  National security is not red or white, it is red, white, and blue. 
The blues and the reds need to work together on this, passing a product 
the DNI supports so the President will sign it into law. Anything else 
and we are not helping the country. We are ready to consider 
amendments; we simply don't want to see the bill destroyed through 
partisan ploys.
  Mr. President, seeing no other Senators present, I suggest the 
absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. CHAMBLISS. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
  Mr. CHAMBLISS. Mr. President, I would inquire as to what the pending 
business is before the Senate.
  The ACTING PRESIDENT pro tempore. S. 2248, the Foreign Intelligence 
Surveillance Amendments Act.
  Mr. CHAMBLISS. I thank the Chair, and I rise to support the managers' 
amendment on this piece of legislation as proposed by Chairman 
Rockefeller and Vice Chairman Bond. This is the result of a bipartisan 
discussion which included the Office of Director of National 
Intelligence and the Department of Justice. I commend Senator 
Rockefeller and Senator Bond on drafting this complicated yet critical 
piece of legislation.
  The Senate has had a healthy debate while considering the Judiciary 
Committee's substitute amendment. I was pleased to see a majority of 
the Senate reject that bill, and I hope the Senate can now move past 
that flawed bill rather than offering a number of amendments which 
contain fragments of it. There is no benefit to rehashing the same 
points in the Senate bill that was just handily tabled versus the 
Rockefeller-Bond compromise piece of legislation that came out of the 
Senate Intelligence Committee.
  The Director of National Intelligence, the National Security Agency, 
and the Department of Justice have stated their opposition to a number 
of proposed amendments which were part of the failed Judiciary 
Committee's substitute. The DNI has made it clear he would recommend to 
the President that he veto this legislation if it does not contain 
immunity for communication carriers, and rightly so. Some Members 
offered amendments to strike title II from the managers' amendment or 
to substitute the Government as the defendant in these lawsuits.
  But substitution will not give the carriers protection, nor will it 
protect our national security. The plaintiffs can still seek documents 
and other evidence from them through the discovery process at trial. 
This risks exposing our intelligence sources and methods, and there is 
simply no doubt about that fact.
  The Government can assert the states secrets privilege, but the 
ongoing litigation has shown that courts reject this theory. Even the 
FISA Court, which operates in secret and handles classified 
information, is not suited to handle these cases. The FISA Court 
primarily reviews ex parte requests and was not meant to hear regular 

[[Page S310]]

The members of the FISA Court are sitting district court judges and 
have their own full dockets.
  The risk of unnecessarily exposing some of our most sensitive 
collection if litigation continues is too great. The best remedy is to 
provide immunity to the telecommunication providers as the managers' 
amendment does. Other amendments propose unnecessary additions to 
provisions already included in the managers' amendment. For example, 
the managers' amendment contains a 6-year sunset and an exclusivity 
provision. Yet amendments have been offered to make this legislation 
expire in 2 years or 4 years.
  Additionally, an amendment has been offered to state that absent some 
other expressed order from Congress, FISA and title XVIII are the 
exclusive means to conduct electronic surveillance. This would require 
Congress to pass a law authorizing the President to conduct electronic 
surveillance after an attack on our country.
  What if Congress were not able to meet, let alone agree on language 
authorizing electronic surveillance after an attack on our country? 
This amendment ignores longstanding debate regarding article I and 
article II powers, a debate the courts have dodged time and again. I 
support the bipartisan language in the managers' amendment which 
maintains the status quo of this important constitutional question.
  Finally, an amendment has been offered requiring an audit of the 
terrorist surveillance program. As I stated earlier in comments 
yesterday, the Intelligence Committee has conducted a thorough review 
of this program over many months, which included testimony, extensive 
document reviews, and even trips out to our intelligence agencies to 
witness how this program is operated.
  I understand that sometimes partisanship impedes action in Congress. 
But I do not recall when some of my colleagues have had such little 
faith in the bipartisan findings and conclusions of a committee in this 
  This amendment disregards the committee's finding and asks for yet 
another retrospective review of this program. This is not only 
duplicative, but it is unnecessary. The Protect America Act expires a 
week from today; the threat from al-Qaida will not expire a week from 
  It is now time for Congress to act and to fix FISA so our 
intelligence community has the tools it needs to do its job in a very 
professional manner and gather information necessary to protect our 
national security.
  Protecting our national security is in the interest of all Americans, 
and Congress should seek to ensure that our Nation is protected fully. 
The members of the intelligence community say the managers' amendment 
contains many tools they need to protect our country. I urge my 
colleagues to support the managers' amendment.
  I yield the floor and I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. DODD. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 


[Congressional Record: January 25, 2008 (Senate)]
[Page S310-S317]


  Mr. DODD. Mr. President, I rise this morning to continue the debate 
and discussion on the Foreign Intelligence Surveillance Act. Let me 
underscore the point that Majority Leader Reid and others have made. I 
listened carefully to the comments of Senator McConnell, the 
distinguished Republican leader.

  I have served in this body for more than a quarter of a century now, 
and it is unfortunate that we seem to have come to a point where not as 
much is happening as should be happening, in my view.
  I brought committee products to the floor on many occasions, and I am 
sort of envious of the remarks of the Senator from Kentucky--because as 
a committee chairman, I love nothing more than to bring a product out 
of my committee. Many times I brought them out with unanimous votes, 
only to have to spend days here on the floor as amendment after 
amendment was being offered to change, in some cases dramatically, the 
substance of our bill, which we had worked on for weeks and months and 
years in some cases.
  So it is a new idea here to just accept committee product and say the 
other 90 or 85 Members should respect the work of our colleagues, and 
acknowledge that and pass the legislation as if we had all had some 
input here. That is unique and, I suppose, an idea that most of us 
would like to embrace at one point or another. But this is the Senate. 
This is not an operation that runs by fiat.
  This institution has an historic responsibility. In this institution, 
every single Member has the opportunity to express themselves, not only 
rhetorically for unlimited amounts of time, but also with the ability 
to contribute to the policy products we frame. To suggest that other 
Members, including members of a committee that had commensurate 
jurisdiction, the Judiciary Committee, ought to be excluded from adding 
their thoughts and ideas, is ridiculous. Even members of both 
Committees, Judiciary and Intelligence, are excluded, such as Senator 
Feingold. It was his amendment, as a member of both of these 
committees, that the Republican leadership would not even consider 
debating or acknowledging with a vote. So that is unique in any regard. 
Anyone who has observed this institution for more than an hour--or 
less--understands how this works.
  So the idea that we should accept this bill because the President 
will sign it, is nice to hear, but I have been around long enough to 
know that Presidents will sign things they did not think they would in 
time, and particularly if we can add some thoughts that Members have.
  I do not want to dwell on the procedural aspects of all of this, but 
I wanted to underscore the point that Senator Reid, our leader, the 
majority leader, made this morning, on the unique idea that Members who 
have substantive ideas and thoughts and amendments should somehow stick 
them back in their pockets, accept the product of the Intelligence 
Committee and go home, because the President will sign that bill. I 
will be anxious to raise the argument in future dates when I bring a 
bill to the floor and I find that the Republican leadership is going to 
offer some amendments to my

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ideas, reminding them of their eloquence in suggesting a different 
approach to the Foreign Intelligence Surveillance Act.
  Last night, we saw into the heart of the minority's priorities. Since 
last month, day after day, opponents of retroactive immunity have been 
warning about its underlying motive: shutting up the President's 
critics. Pass immunity, we have said, and the debate will be shut down, 
the critics will be shut up, and the actions of the President's favored 
corporations will be shut in the dark for good.
  Last night, we saw the mindset of the minority. Several of my 
Democratic colleagues have brought to the floor their carefully 
prepared amendments, many of which do their part to right the balance 
between security and civil liberties.
  The Cardin amendment, which would allow us to revisit the bill in 4 
years instead of 6, not exactly a frightening proposal. It would be a 
simple debate; we could decide if he's right or wrong--make your case 
either way. I happen to believe he is right. Amendments from Senator 
Feingold prohibiting the dangerous and possibly unconstitutional 
practice of reverse targeting and bulk collection. The Leahy amendment, 
requiring the inspectors general of the Director of National 
Intelligence and the Department of Justice and the National Security 
Agency to investigate possible illegal domestic spying. The Feinstein-
Nelson amendment allowing the FISA Court to determine whether immunity 
should apply to the telecommunications companies; and several more 
amendments as well.
  These are all very serious amendments. The Presiding Officer himself 
has one of these amendments. Some of them I support, others I would 
probably end up opposing. Nonetheless, I acknowledge the seriousness of 
their proposals.
  I am concerned, however, about amendments that expand the authority 
of the FISA Court beyond what Congress intended when it originally 
passed FISA. While I respect the motives behind such proposals, 
Congress needs time to fully consider their implications.
  Further, I am concerned that such proposals put excessive power in 
the hands of a secret court whose members are all appointed by one 
individual. In other words, I am concerned this is yet another 
concentration of power, the implications of which we don't fully 
understand and ought to consider carefully. Yes, secrecy is necessary 
at times in the life of every nation. But it is a bedrock principle 
that democracy should always err on the side of less secrecy. For that 
reason I believe cases against the telecoms are best handled in our 
standard Federal courts--which, by the way, have shown time and time 
again that they know how to protect State secrets.
  None of that is the real issue this morning. Whether you agree with 
any of these proposals or not, each amendment deserves consideration. 
Senators are not entitled to see their amendments agreed to, but they 
are entitled to this: a good-faith debate, honest criticism, and, 
ultimately, a vote on their ideas. Last evening, they didn't get that. 
Our Republican colleagues, assuming they would lose those votes, 
effectively shut down the work of the United States Senate. In the 
words of the cliche, they have taken their ball and run home.
  I don't think that is far off base, in seeing in this egregious 
shutdown a parallel to retroactive immunity itself. Both attitudes 
privilege power over deliberation, over consensus, over honest 
argument. Like immunity, pulling these amendments down shows a contempt 
for honest debate and a willingness to settle issues in the dark, in 
the back rooms, rather than in the open, where the law lives, where the 
American people can see it.
  President Bush wants to shut down the courts whose rulings he doesn't 
like. Last night, Senate Republicans showed when they don't like the 
outcome of a debate, they shut down that as well. It is one thing for a 
President to express that kind of contempt for the process of 
legislation. It is yet another for the coequal Members of this 
legislative branch to express it themselves.
  I have spoken repeatedly about the rule of law. The rule of law is 
not some abstract idea. It is here with us. It is what makes this body 
run and has for more than two centuries. It means we hear each other 
out. We do it in the open. And while the minority gets its voice, its 
right to strenuously object, the majority ultimately rules. Standing 
for the rule of law anywhere means standing for it everywhere--in our 
courts and in the Senate.
  The circumstances are different, of course, but the heart of the 
matter is the same. Last evening, I believe the Republican Party 
forfeited its claim to good faith on this issue. They are left to stake 
their case on fear. Whether that be enough, the next few days will 
  But I want to talk about the issue of the underlying bill, the 
substance of it. As my colleagues here know, I care deeply and 
passionately about several aspects of this bill. Again, I have great 
respect for the work it takes to strike the balance between the need 
for have surveillance of those terrorists who would do us great harm, 
and the protection of civil liberties, rights, and the rule of law. It 
is not an easy balance. I will be the first to acknowledge that the 
tension between those two goals has been an ongoing tension since the 
founding of this Republic. It is not just new since 9/11. It goes back 
to the very first days of our Republic.
  In fact, James Madison spoke eloquently about the tensions in civil 
liberties and rights and, with a great deal of prescience, recognized 
that it is usually threats from outside our country that have the most 
influence on endangering the rights and liberties we embrace at home. 
He acknowledged that more than two centuries ago.
  So the debate we are engaged in today is a historic one, historic in 
the sense that it has been ongoing. No Member of this Chamber wants to 
sacrifice the security of our country, and my hope is that no Member of 
this body wants to sacrifice our liberties and rights either. I want to 
believe that very deeply. While we are debating how best to do that, my 
fear is that we are about to adopt legislation that will deviate from a 
30-year history of actually achieving that sense of balance, by and 
large with the almost unanimous support of Members who have served here 
during that 30-year period.

  I spoke yesterday about a crime that may have been committed against 
millions of innocent Americans: their phone calls, their faxes, their 
e-mails, every word listened to, copied down by Government bureaucrats 
into a massive database. I spoke about how our largest 
telecommunications companies leapt at the chance to betray the privacy 
and the trust of their own customers. That spying didn't happen in a 
panic or short-term emergency, not for a week, a month, or even a year. 
It went on relentlessly for more than 5 years. If the press had not 
exposed it, it would be going on at this very hour. This was not a 
question where a program started up and someone realized they had done 
something wrong, shut it down, and we discovered it later. This program 
has been ongoing and would have been ongoing arguably for years had the 
New York Times and a whistleblower not stepped forward to acknowledge 
its existence.
  We saw how President Bush responded when this was exposed--not by 
apologizing, not even by making his best case before our courts, but by 
asking for a congressional coverup: retroactive immunity. He asked us 
to do it on trust. There are classified documents, he says, that prove 
his case beyond a shadow of a doubt, but, of course, we are not allowed 
to see them. I have served in this body for 27 years, and I am not 
allowed to see these documents! Neither are the majority of my 
  And when we resist his urge to be a law unto himself, how does he 
respond? With fear. When we question him, he says we are failing to 
keep the American people safe.
  Shame on the President and shame on these scare tactics.
  I have promised to fight those tactics with all the power any one 
Senator can muster, and I am here today to keep that promise. For 
several months I have listened to the building frustration over this 
immunity and this administration's campaign of lawlessness. I have seen 
it in person, in mail, online--the passion, the eloquence of average 
citizens who are just fed up with day after day, week after week,

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month after month, year after year of this administration, in one case 
after another, trampling all over the basic rights of American 
citizens. They have inspired me more than they know, these citizens who 
have spoken up.
  But almost every time telecom immunity comes up, there is the 
inevitable question: What is the big deal? Why are so many people 
spending so much energy to keep a few lawsuits from going forward?
  Because this is about far more than the telecom industry. This is 
about a choice that will define America--the rule of law or the rule of 
men. It is about this Government's practice of waterboarding, a 
technique invented by the Spanish Inquisition, perfected by the Khmer 
Rouge, and in between banned--originally banned for excessive cruelty 
even by the Gestapo.
  It is about the Military Commissions Act, a bill that gave President 
Bush the power to designate any individual he wants as an unlawful 
enemy combatant, hold him indefinitely, and take away that individual's 
right to habeas corpus, the centuries-old right to challenge your 
  It is about the CIA destroying evidence of harsh interrogation--or, 
as some would call it, torture.
  It is about the Vice President raising secrecy to an art form.
  The members of his energy task force? None of your business, we are 
  His location? Undisclosed.
  The names of his staff? Confidential.
  The visitor log for his office? Shredded by the Secret Service.
  The list of papers he has declassified? Classified.
  It is about the Justice Department turning our Nation's highest law 
enforcement offices into a patronage plum and turning the impartial 
work of indictments and trials into the machinations of politics.
  It is about Alberto Gonzales coming before Congress to give testimony 
that was at best wrong and at worst perjury.
  It is about Michael Mukasey coming before the Senate and defending 
the President's power to break the law.
  It is about extraordinary renditions and secret prisons.
  It is about Maher Arar, the Canadian computer programmer who was 
arrested by American agents, flown to Syria, held for some 300 days in 
a cell 3 feet wide, and then cleared of all wrongdoing.
  It is about all of that. We are deceiving ourselves when we talk 
about the torture issue or habeas issue or the U.S. attorneys issue or 
the extraordinary rendition issue or the secrecy issue. As if each one 
were an isolated case! As if each one were an accident! We have let 
outrage upon outrage upon outrage slide with nothing more than a 
promise to stop the next one.
  There is only one issue here--only one--the law issue. Attack the 
President's contempt for the law at any point, and it will be wounded 
at all points. That is why I am here today. I am speaking for the 
American people's right to know what the President and the telecoms did 
to them. But more than that, I am speaking against the President's 
conviction that he is the law. Strike it at any point, with courage, 
and it will wither.
  That is the big deal. That is why immunity matters--dangerous in 
itself but even worse in all it represents. No more. No more. This far, 
Mr. President, but no further.
  More and more Americans are rejecting the false choice that has come 
to define this administration: security or liberty but never, ever 
both. It speaks volumes about the President's estimation of the 
American people that he expects them to accept that choice.
  The truth, I would say, is that shielding corporations from lawsuits 
does absolutely nothing for our security. I challenge the President to 
prove otherwise. I challenge him to show us how putting these companies 
above the law makes us safer by one iota. That, I am convinced, he 
cannot do.
  The truth is that a working balance between security and liberty has 
already been struck. It has been settled for decades. For three 
decades, 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, Republicans and 
Democrats, determined to investigate executive abuses of power. 
Unsurprisingly, they found that when Congress and the courts substitute 
``trust me'' for real and true oversight, massive law breaking 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 opened hundreds of thousands of Americans' letters 
without warning or warrant.
  In sum, Americans had sustained a severe blow to their fourth 
amendment right 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 is not the problem: unchecked, unregulated, unwarranted 
surveillance was. What surveillance needed, in a word, was legitimacy. 
In America, as the Founders understood, power becomes legitimate when 
it is shared; when Congress and the courts check the attitude which so 
often crops up in the executive branch: If the President does it, it is 
not illegal.
  The Church Committee's final report, ``Intelligence Activities and 
the Rights of Americans,'' puts the case powerfully. Let me quote, if I 
can, from that report. The Church Committee--Republicans and 

       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 
     security. 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. . . .

  The report further states:

       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 

  That report is more than 30 years old. But couldn't those words have 
been written this morning? We share so much with the Senators--
Republicans and Democrats--who wrote them. We share a nation under 
grave threat--in their case, from communism and nuclear annihilation; 
in ours, from international terrorism. We share, as well, the threat of 
a domestic spying regime that, however good its intentions, finally 
went too far.
  Senators in my lifetime have already faced this problem, and I 
believe their solution stands: The power to invade privacy must be used 
sparingly, guarded jealously, and shared equally between all three 
branches--all three branches of Government.
  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 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 over the 
last three decades, FISA has accomplished its mission. It has been a 
valuable tool--a tremendously valuable tool--for conducting 
surveillance of terrorists and those who would harm our country.

[[Page S313]]

  Every time Presidents have come to Congress openly to ask for more 
leeway under FISA, Congress has worked with them; Democrats and 
Republicans have negotiated; and together, Congress and the President 
have struck a balance that safeguards America while doing its utmost to 
protect privacy.
  This summer, Congress made a technical correction to FISA, enabling 
the President to wiretap, without a warrant, conversations between two 
foreign agents, even if those conversations are routed through American 
computers. For other reasons, I felt this summer's legislation went a 
bit too far, and I opposed it. But the point is that Congress once 
again proved its willingness to work with the President on FISA.
  Shouldn't that be enough?
  Just 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 that, in a true emergency, the FISA 
Court could do nothing to slow down intelligence gathering.
  Shouldn't that be enough?
  And as for the FISA Court? Between 1978 and 2004, according to the 
Washington Post, the FISA Court approved 18,748 warrants--18,748 
warrants. It rejected five, between 1978 and 2004. Let me repeat the 
numbers. They granted 18,748 warrants, and rejected 5 of them over that 
almost 30-year period.
  The FISA Court has sided with the executive 99.9 percent of the time.
  Shouldn't that be enough? One would think so. Is anything lacking? 
Have we forgotten something? Isn't all of this enough to keep us safe?
  It took three decades, three branches of government, four Presidents, 
and 12 Congresses to patiently, painstakingly build up that machinery. 
It only took one President to tear it down. Generations of leaders 
handed over to President Bush a system that brought security under the 
law, a system primed to bless nearly any eavesdropping he could 
possibly conceive or think of. And he responded: No, thank you; I'd 
rather break the law.
  He 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. And he still has not given 
us a good reason why. He still has not shown how his lawbreaking makes 
us safer.
  So I am left to conclude that, to this President, this is not about 
security. It is about power: power in itself, power for itself.
  I make that point not to change the subject, but because I believe it 
solves a mystery. That is: Why is retroactive immunity so vital to this 
President? The answer, I believe, is that immunity means secrecy; and 
secrecy, to this administration, means power.
  It is no coincidence that the man who declared ``if the president 
does it, it's not illegal''--Richard Nixon--was the same man who raised 
executive secrecy to an art form in an earlier generation. The Senators 
of the Church Committee expressed succinctly the deep flaw in the 
Nixonian executive. I quote from them: ``Abuse thrives on secrecy.'' 
And in the exhaustive catalog of their report, they proved it.
  This administration shares a similar level of secrecy, and a similar 
level of abuse, I would add. Its push for immunity is no different. 
Secrecy is at its center. We find proof in their original version of 
retroactive immunity. Remember, this was their idea: a proposal not 
just to protect the telecoms but everyone involved in the wiretapping 
program. That is what they sought of the Intelligence Committee. 
Everyone involved in that program was to be protected. In their 
original proposal, that is, they wanted to immunize themselves.
  Think about that. It speaks to their fear and, perhaps, their guilt: 
their guilt that they had broken the law, and their fear that in the 
years to come they would be found liable or convicted. They knew better 
than anyone else what they had done. They must have had good reason to 
be afraid.
  Thankfully, immunity for the Executive is not part of the bill before 
us. But the original proposal--the original proposal--to immunize 
everyone involved ought to be instructive to Members here. Why did they 
seek such broad authority to immunize every individual? Why? What was 
behind that proposal? This is, and always has been, a self-preservation 
  Otherwise, why not have the trial to get it over with? If the 
President believes what he says, the corporations would win in a walk. 
After all, in the administration's telling, the telecoms were ordered 
to help the President spy without a warrant, and they patriotically 
  Read Justice Robert Jackson's briefs after Nuremberg. The 21 
defendants at Nuremberg made that case, that they were only complying 
with orders they were given. And the court in the Nuremberg trials, in 
1945, rejected that argument. Robert Jackson reminded us, in subsequent 
decisions he handed down as a Supreme Court Justice, that that 
argument, ``we were ordered to do it,'' is not a legitimate defense 
when you know what you are doing is wrong.
  And when you hear the President's story, ignore for a moment that in 
America we obey the laws, not the President's orders. Ignore that the 
telecoms were not unanimous; one, Qwest, wanted to see the legal basis 
for the order. They never received it, of course, and so they refused 
to comply. Ignore that a judge presiding over the case ruled that--and 
I quote--``AT&T cannot seriously contend that a reasonable entity in 
its position could have believed that the alleged domestic dragnet was 
  Ignore all of that. If the order the telecoms received was legally 
binding, 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 five 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. The Federal court system has 
dealt for decades with the most delicate national security matters, 
building up expertise in protecting classified information behind 
closed doors--ex parte, in camera. We can expect no less in these 
cases, as well.
  No intelligence sources need to be compromised. No state secrets need 
to be exposed. And after litigation at both the district court and 
circuit court level, no state secrets have been exposed.
  In fact, Federal District Court Judge Vaughan Walker, a Republican 
appointee, I might add, has already ruled that the issue can go to 
trial without putting state secrets in jeopardy. Judge Walker 
reasonably pointed out that the existence of the President's 
surveillance program is hardly a secret at all. I quote from him. He 

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

  That is from Judge Walker. In his opinion, Judge Walker argued that 
even when it is reasonably grounded:

     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.

  That is Republican appointee Vaughan Walker speaking to the 
administration. He further goes on to say:

       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.

  That ought to be the epitaph of this administration: sacrificing 
liberty for no apparent enhancement of security. Worse than selling our 
soul, we are giving it away for free.
  The President is equally wrong, I would suggest, 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, FISA has compelled telecommunications companies to 
cooperate with surveillance when it is warranted. And what is more, it 
immunizes them. It has done that for more than 25 years.
  So cooperation in warranted wiretapping is not at stake today. 
Collusion in warrantless wiretapping is. And the warrant makes all the 

[[Page S314]]

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. The conclusion, I again repeat, is clear: The only 
thing that stands to be exposed if these cases go to trial is the 
extent of the President's lawbreaking, of the administration's 
lawbreaking. That, he will keep from the light of a courtroom at all 
  This is a self-preservation bill. And given the lack of compelling 
alternatives, I can only conclude that self-preservation--secrecy for 
secrecy's sake--explains the President's vehemence.
  Well, you might say, he will be gone in a year. Why not let the 
secrets die with this administration and start afresh? Why take up all 
the time on this matter?
  Because those secrets never rightfully belonged to him. They belong 
to history, to our successors in this Chamber, to every one of us. 
Thirty years after the Church Committee, history repeated itself. If 
those who come after us are to prevent it from repeating again, they 
need the full truth. We need to set an unmistakable precedent. 
Determining guilt or innocence belongs to the courts, not to 51 
Senators who may carry the day by a vote here, or the President, for 
that matter--that is what the courts are for. Lawless spying will no 
longer be tolerated. And, most of all, the truth is no one's private 
  Which brings us, unfortunately, to economics. Because once the 
arguments from state secrets and patriotic duty are exhausted, 
immunity's defenders make their last stand as amateur economists.
  Here is how 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.

  To begin with, that is a clear exaggeration. We are talking about 
some of the wealthiest, most successful companies in America. Let me 
quote an article from Dow Jones MarketWatch. The headline reads: 
``AT&T's third-quarter profit rises 41.5 percent.'' I will quote the 

       AT&T, Inc. on Tuesday said third-quarter earnings rose 41.5 
     percent, boosted by the acquisition of BellSouth and the 
     addition of 2 million net wireless customers. . . . Net 
     income totaled $3.6 billion . . . compared with $2.17 . . . a 
     year ago.

  I should note that AT&T has posted these record profits at the same 
time of this very public litigation.
  Now, granted, that is only one quarter, and I understand that AT&T's 
most recent earnings aren't as large as the ones I have just quoted; 
but I think the point still stands. A company of that size, capable of 
posting a $3 billion quarter, couldn't be completely wiped out by 
anything but the most exorbitant and unlikely judgment.
  To assume that the telecoms would lose and that their judges would 
hand down such backbreaking penalties is already taking several leaps. 
The point, after all, has never been to financially cripple our 
telecommunications industry; the point is to bring checks and balances 
back to domestic spying. Setting that precedent would hardly require a 
crippling judgment.
  It is much more troubling, though, that the Director of National 
Intelligence has begun talking like a stockbroker, pronouncing on 
``liability protection for private sector entities.'' How does that 
even begin to be relevant to letting the case go forward? Since when 
did we throw out entire lawsuits because the defendant stood to lose 
too much?
  Translate the point into plain English, and 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. I have rarely in public life heard an argument as venal as 
this one.
  But this administration would apparently rather protect the telecoms 
than the American people. In one breath, it can speak about national 
security and bottom lines. 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. So at the rock bottom of its justifications, the 
administration is essentially arguing that immunity can be bought.
  The truth is exactly the opposite, in my view. The larger the 
corporation, the greater 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, the President and the telecoms have engineered one of the most 
massive violations of privacy in American history. A violation such as 
that would be inconceivable without the size and resources of a 
corporate behemoth behind it.
  If reasonable search and seizure means opening up a drug dealer's 
apartment, the telecoms' alleged actions would be the equivalent of 
strip-searching everyone in the building, ransacking their bedrooms, 
and prying up all the floorboards. That is the massive scale we are 
talking about, and that massive scale is precisely why no corporation 
must be above the law.
  Ultimately, that is all I am asking--not a verdict of guilty or 
innocent. I have my own views, but I don't have a right to pronounce 
those views. That is why there is something called the third branch of 
Government. It is called the courts--the courts. A simple majority of 
this body doesn't get the right to decide the guilt or innocence in 
this particular case. But when the day in court comes, I have 
absolutely no investment in the verdict either way. Just as it would be 
absurd for me to declare the telecoms clearly guilty, it would be 
equally absurd to close the case today without a decision. But their 
day in court, as far as I am concerned, is everything.
  Why? Because surveillance demands and deserves legitimacy, and the 
surest way to throw legitimacy away is to leave all of these questions 
  Few things are as vital to our national security as giving domestic 
surveillance the legitimacy it deserves and needs to sustain public 
support. Because ``the threat to America is not going to expire.'' 
``Staying a step ahead of the terrorists who want to attack us'' is 
``essential to keeping America safe.'' In the end, ``Congress and the 
President have no higher responsibility than protecting the American 
people from enemies who attacked our country and who want to do it 
  Those aren't my words; they are George Bush's words. He says all of 
this, yet he says he will veto the entire bill--this vital bill, this 
bill which is essential to protecting our very lives--all to keep a few 
corporations safe from lawsuits.
  There, at last, as honest as you will ever hear them, are this 
President's true priorities: secrecy over safety, favors over fairness. 
Marry those priorities to a contempt for the rule of law, and the 
results have been devastating. I don't have to repeat them. They aren't 
secret anymore.
  No, Mr. President we can't go back. We can't un-pass the Military 
Commissions Act. We can't un-destroy the CIA's interrogation tapes. We 
can't un-speak Alberto Gonzales's disgraceful testimony. We can't un-
torture those who have been apprehended and held wrongfully. We can't 
undo all this administration has done in the last 6 years for the cause 
of lawlessness and fear.
  But we can do this: We can vote down this immunity. We can do this: 
We can grab hold of the one thread left to us here and pull until the 
whole garment unravels. We can start here.
  And why not here? Why not today?
  Why not provide for the protections we need, the surveillance we 
need, but without this grant of immunity? It is unwarranted, it is 
unneeded, it is unfair, it is wrong, and it is dangerous.
  So, on Monday, I hope my colleagues will reject the motion on 
cloture, allow these amendments to go forward, allow us to have a 
debate and a discussion, and then send a clean bill to the President--
one that enhances our security and protects our civil liberties.
  Mr. President, I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Tennessee is 
  Mr. ALEXANDER. Mr. President, I ask unanimous consent to speak as in 
morning business.

[[Page S315]]

  The ACTING PRESIDENT pro tempore. Without objection, it is so 
  Mr. ALEXANDER. I ask unanimous consent that when I finish with my 
remarks, the Senator from Texas be recognized.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 

                           Republican Retreat

  Mr. ALEXANDER. Mr. President, I would say to the Senator from 
Connecticut, welcome back. We are glad to have him here. He has 
traveled some roads that I know pretty well. We have missed some of his 
vigor and passion.
  Sometimes the American people say they don't like to see us engage in 
partisan bickering, and I am going to say something about that in just 
a minute. But what I think they do like to see us do, if I may say so, 
is what the Senator from Connecticut was doing just then and what the 
Senator from Arizona did on Friday: They were debating the balance of 
each American individual's right to liberty versus each American 
individual's right to security--coming to different conclusions but 
having a serious discussion about an issue that affects every single 
American in this country. That is what the people expect of the Senate.
  I come to a different conclusion than he does. We are moving to vote 
on cloture on a bill on Monday that has come out of the Intelligence 
Committee by a bipartisan majority of 13 to 2. But this is the kind of 
debate the Senate ought to have, and I am glad I got to hear his speech 
even though I disagree with much of it.
  The Republican Senators gathered in a retreat at the Library of 
Congress on Wednesday. This is something we do each year, and the 
Democratic side does it each year as well. We think about our 
responsibilities, and we look forward to the future. Many of our 
Members have said to me that this was one of our best days of retreat. 
In the first place, it was very well attended: 44 out of 49 of us were 
there, and 3 of those absent were campaigning in Florida, and 1 was 
ill. So we had virtually perfect attendance. Most of those attending 
spoke and participated and made proposals. Every single Republican 
Senator with whom I have talked since that meeting on Wednesday has 
told me he or she felt rejuvenated and looks forward to this year. I 
believe the reason for that is because of the way we conducted the day.
  It takes me back to what I just said a moment ago. Unless we are 
tone-deaf, I think we can hear what the American people are saying to 
us, especially through the Presidential campaign, which is that they 
are tired of the way we are doing business in Washington, DC, and they 
want us to change it. They want us to take the playpen politics and 
move it off the Senate floor and put it in the national committees or 
in the nursery where it belongs, and spend our time on big issues that 
affect our country--maybe in vigorous debates of the kind Senator Dodd 
and Senator Kyl would have on the intelligence bill, but spend our time 
on the serious issues facing our country. Then, after we have had our 
debate, work across the aisle to get a result.
  There are only two reasons to work across the aisle to get a result. 
One is, it is the right thing to do for our country. This is our job, 
and that is why they pay us our salaries. That is why they sent us 
here. No. 2, if you can count, it takes 60 votes to get anything 
meaningful done in the Senate. So if you want to get a result, you have 
to work across party lines because neither side has more than 60 votes.
  So what we Republicans did on Wednesday was say this: We have heard 
the talk that this is a Presidential year and we may get nothing done 
in Congress, and we reject that.
  Our leader said--Mitch McConnell--on Tuesday when he spoke:

       Republicans are eager to get to work on the unfinished 
     business from last year. We are determined to address the 
     other issues that have become more pressing or pronounced 
     since we last stood here. We have had a presidential election 
     in this country every 4 years since 1788 we won't use this 
     one as an excuse to put off the people's business for another 

  So there is no excuse for Congress to take this year off, given the 
serious issues facing our country. We want to change the way Washington 
does business, and we know how to do it; that is, get down to work on 
serious issues facing our country, propose specific solutions that 
solve problems, and then work across the aisle to get a result. We are 
not here to do bad things to Democrats; we are here to try to do good 
things for our country.
  That was the spirit of our retreat on Wednesday. I believe that is 
the way most Members on the other side feel. The more of that we do, 
the better. I would submit the approval rating of the Congress and of 
Washington, DC, will gradually go up if we were to do that.
  Let me say a word about exactly what we talked about on Wednesday--
the kind of approach that one can expect from Republican Senators this 
  First, of course, is that we are here and ready to go to work on 
these specific solutions based on Republican principles, and we are 
either looking for bipartisan support or already have bipartisan 
support on many issues. Of course, to begin with, we know Americans are 
hurting and anxious because of the housing slump, because of gasoline 
prices, because of rising health care costs, and we are ready to work 
with the House and the President, across the aisle, to find the 
appropriate action to take to try to avoid an economic slowdown.
  I imagine the Senate will have some of its own views about its 
proposals when the House brings its proposal here. But we want a 
result. I, for one, would like to see--and I believe most of my 
colleagues on this side of the aisle would like to see--a proposal that 
grows the economy and not the Government. But we will have a debate 
about that. That is not partisan bickering; that is the Senate in its 
finest tradition addressing an issue that is central to every single 
family in this country.
  We know we need to intercept the communications of terrorists so we 
can keep our country safe from attack. We know when we do that, we have 
to carefully balance each of our right to liberty versus each of our 
right to security.
  Samuel Huntington, the Harvard professor, once wrote--he was 
President of the American Political Science Association--that most of 
our politics is about conflicts between principles or among principles 
with which almost all of us agree. That is important to Americans 
because what unifies us, other than our common language, is these few 
principles, security and liberty being two.
  Republicans support the Rockefeller-Bond bipartisan proposal which 
passed 13 to 2 by the Intelligence Committee. We want to make sure 
those companies which help us defend ourselves aren't penalized for 
helping to make the country secure, while at the same time protecting 
individual liberties.
  We know there are 47 million Americans who don't have health 
insurance, and Republican Senators said in our retreat on Wednesday 
that we are ready to go to work this year to make sure every American 
is insured. Some say put it off a year. Well, perhaps we can't get it 
all done in 2008, but we can surely start. Senator Byrd and Senator 
DeMint and Senator Bennett and Senator Corker, among others, spoke at 
our retreat on this issue. We would like to get going now. We could 
begin with the Small Business Health Insurance Act, which would permit 
small companies to pool their resources and offer more health insurance 
at a lower cost to their employees. That would be a beginning.
  Many of us on the Republican side have sponsored a bipartisan bill--
one of two or three that have the same general approach to reforming 
the Tax Code, to put cash in the hands of American families and 
individuals so they can afford to buy their own private insurance, 
putting together four words that usually don't go together: ``universal 
access'' and ``private insurance.'' Those are based on principles we 
Republicans agree with: free market and equal opportunity. We know on 
this side of the aisle--and I suspect many over on that side know as 
well; I know they do--if we don't do something about the runaway growth 
of Medicare and Medicaid--entitlement spending, in other words--we will 
bankrupt our country. Every year that we wait to deal with that is a 
year that makes the solution harder.
  So Senator Gregg, at our retreat, talked about his proposal with 

[[Page S316]]

Conrad, a Democratic Senator, to create a base-closing-task-force-type 
task force for the sole purpose of recommending to the Congress a way 
to control entitlement spending and force an up-or-down vote on that. 
That is the principle of limited government. That is a principle that 
most Republicans and a proposal that many Democrats can support.
  We know there is a great force in Washington, DC, to spend more 
money, to issue more regulations and rules, and there are almost no 
countervailing forces to spend less money, repeal rules, and revise 
regulations. So Senators Domenici, Isakson, and Sessions, among others, 
have proposed an idea to change our budgeting and appropriations 
process from 1 year to 2 years. That may help us get appropriations 
bills done on time so we can save money in our contracting in the 
Defense Department and Department of Transportation, for example. But 
more important to me, and to many on this side of the aisle, it would 
create a countervailing force of oversight so that every other year we 
would spend most of our time on oversight, meaning we could review, 
repeal, and change and improve laws, regulations, and rules that have 
been in place for a long time.
  We want to keep jobs from going overseas, and we believe we know how 
to do it. Last year, we worked with Senator Bingaman and others on the 
other side to pass the America COMPETES Act. This is an extraordinary 
response to our challenge to keep our brain power advantage so we can 
keep our jobs, in competition with China and India. Senator Hutchison 
has been a leader on this issue. She, with Senator Bingaman, began the 
effort to fully fund advanced placement courses so more children could 
take those courses. So we are ready--many on this side of the aisle--to 
implement the advanced placement provisions in the America COMPETES 
Act. That will help 1.5 million children to have those opportunities.
  We are ready to implement the provision that would put 10,000 more 
math and science teachers in our classrooms. Many of us are ready to 
implement the recommendation that we pin a green card to every single 
foreign student legally here and who graduates from an American 
university in science, technology, engineering, or mathematics. Some 
proposals ought to be bipartisan, but they are not--or at least they 
weren't. I made one, and we talked about this for a while on Wednesday.
  In order to encourage unity in this country, we need a common 
language. That seems to be common sense. Therefore, we ought to pass a 
law making it clear that the Federal Government should not be suing the 
Salvation Army, telling them they cannot require employees to speak 
English on the job. We got it through the Senate and to the House, 
where the Speaker stopped it. Now Senator Conrad has joined in support, 
as have Senators McConnell, Byrd, Landrieu, and Nelson of Nebraska. So 
now we have a bipartisan approach on another important issue.
  We talked about the idea and the problem of the number of rural women 
in this country who are pregnant and cannot get the proper prenatal 
health care. OB/GYN doctors are leaving rural areas because runaway 
malpractice lawsuits are running malpractice insurance over $100,000 a 
year. So the pregnant women are having to drive 70 miles to Memphis or 
other big cities to see a doctor and get the prenatal health care they 
need and to have the baby. We have proposals to stop it in the way 
Texas and Mississippi did. We invite bipartisan proposals on that.
  Mr. President, the Republican agenda will emerge over time. What I 
would like to say to our colleagues on the other side of the aisle and 
to the American people is, we want to change the way Washington does 
business, and we believe we know how. The way is to stand up every 
single day and week with new specific proposals on real issues and have 
a debate where one is needed. Let Senator Dodd and Senator Kyl have a 
principled argument about security versus liberty. That is in the 
finest tradition. Let's cut out the playpen politics. Let's don't have 
that, and let's earn back the confidence of the American people by 
dealing with specific solutions. That is what you are going to hear 
from Republican Senators.
  No sooner had I heard some encouraging remarks from the majority 
leader, out comes this release from the Senate leadership and majority 
leader Harry Reid:

       For immediate release. Democratic policy experts discuss 
     President Bush's legacy of broken promises.

  That was announced. This is playpen politics. I am sure we do it here 
sometimes, but I will do my best as the Republican conference chairman 
to make the political reward for this playpen politics so low that this 
kind of release and activity is moved into the nursery school where it 
belongs, over to the national committee where it belongs, whether it is 
the Democratic playpen or the Republican playpen, and that we devote 
ourselves to the issues facing our country.
  How can we help the economy? How can we help every American be 
insured? How can we stop the terrorists? How can we implement the 
America COMPETES Act? Those are the debates we ought to have. I hope 
that is clear to the American people and to our colleagues. We are 
looking forward to this year. Republicans are ready for change in the 
way we do business in Washington. The people of this country are ready 
for that, too. I look forward to it.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Texas is 
  Mr. CORNYN. Mr. President, I express my gratitude to Senator 
Alexander, my colleague from Tennessee, for his comments and for his 
leadership. We decided it would be helpful to come to the floor and 
talk a little bit about the retreat that Senator Alexander laid out and 
our reasons for believing that it is important that we not take the 
year off just because it is a Presidential election. I think Senator 
McConnell most recently pointed out that we have had elections in this 
country every 2 years since 1788. So if we are going to use that as an 
excuse for not getting things done, we will never get anything done. We 
have a lot of important issues we need to address, and we will.
  The month or so that we were in recess, from the Wednesday before 
Christmas until we came back the day after Martin Luther King's 
national holiday, I enjoyed being at home in Texas. As always, I 
traveled around the State and talked to a lot of people. But I also 
listened. What I heard from my constituents is the same thing I bet 
virtually every single Senator heard, and that is that people are sick 
and tired of the bickering and partisanship. They are sick and tired of 
seeing Congress not solving problems that only Congress can solve. 
Frankly, they are beginning to feel more and more like Congress is 
irrelevant to their daily lives. I think that is what accounts for the 
historically low approval rating we have seen of the Congress in the 
last year.
  The problem is--and the occupant of the chair knows as well as I do--
that I don't think the public differentiates between Republicans and 
Democrats when they give Congress a low approval rating, by and large. 
I think it is up to us, working together, to try to elevate that low 
approval rating by doing what our constituents expect us to do, and 
that is to work together when we can, without sacrificing our basic 
  Let me say a word about that. Lest anybody confuse what Senator 
Alexander and I are saying, that we are somehow taking leave of our 
principles, that is absolutely not true. In Washington, I usually tell 
folks that we have Democrats in Texas and we have Republicans in Texas. 
They are all pretty much conservative by national standards, Washington 
standards. But the fact is, my constituents expect for me to get 
something done. But that is not done by sacrificing principles. I do 
think we have important differences, and I think those should be 
debated, and then we should vote. We should be held accountable in the 
next election for our votes and for what we have done or not done.
  I think there is an important difference between standing on your 
principles and then looking for common ground to try to come together 
and solve problems. I agree with what the Senator from Tennessee said. 
We all know it is a fact of life in the Senate

[[Page S317]]

that you cannot get anything done without bipartisan support. Our 60-
vote rule for cloture to close off debate in order to have an up-or-
down vote requires it. So why not recognize that, sure, we can say no, 
no, no, but occasionally I think we ought to look for an opportunity to 
say yes where it doesn't sacrifice our principles, but it does find 
common ground to try to get things done on behalf of the American 
  I have constituents who asked me, as recently as last night: Don't 
you find life in the Senate and in Washington and in the Congress 
frustrating? Many say I could never do what you do because I would be 
so frustrated by it. I think there is plenty of opportunity for 
frustration, if we dwell on that. But I prefer to look at the 
opportunities for making life better for the American people and for 
offering solutions on the difficult issues that confront us. To me, 
that is what I get up and come to work for. That is why I enjoy being 
in the Senate. I believe it gives me a chance, as one American, to do 
what I can to try to make life better and to make a difference. It is 
not about sacrificing principles. It is doing what we said in the 
preamble to the Constitution when we said:

       We the People of the United States, in Order to form a more 
     perfect Union, establish Justice, ensure domestic 
     Tranquility, provide for the common defence, promote the 
     general Welfare, and secure the Blessings of Liberty to 
     ourselves and our Posterity. . . .

  We said that in 1787, in a document that was ratified by all of the 
States by 1790. That should be our goal still today--to be true to that 
statement of principle about what our goals are as a nation.
  The Senator from Tennessee did go through a number of concrete 
proposals and talked about what our alternative will be to the 
proposals being made on the other side of the aisle. Again, I agree 
with him, that the American people don't expect us to come here and 
split the difference on everything in order to come up with an 
agreement if they believe that outcome is devoid of principle or 
sacrifices fundamental values. There are differences between the 
parties. Those differences ought to be reflected in a dignified and 
civilized and respectful debate that highlights those differences, and 
then we have a vote on those different points of view. We will either 
pass legislation or not based on that vote. But I think it will be 
acting in the greatest tradition of the Senate, and in a way that our 
constituents back home earnestly wish we would act and, unfortunately, 
in a way that we have not always acted.
  I have to believe all Members of this body want to see our economy as 
strong as it can possibly be going forward. They want to see that our 
Nation is secure and our defense remains the best in the world; that 
all Americans have access to quality health care; that taxpayers not be 
compelled to foot the bill for wasteful Washington spending. I have to 
believe that all of our constituents, and indeed all Members of the 
Senate, believe that we need a sustainable energy policy that allows us 
to turn away from our over-reliance on imported oil and gas from 
dangerous parts of the world.
  I think, as Senator Alexander pointed out, principled differences on 
important legislation need to be debated in the Senate and voted on and 
resolved rather than be left without a solution and unaddressed.
  We do have an opportunity, I believe, this new year as we have come 
back not just to say no, no, no, to every idea that is offered on the 
floor but to say: Here are our alternative solutions to the problems 
that confront America.
  Mr. President, you will be hearing us on the floor of the Senate on a 
weekly basis not only addressing legislation offered by the majority--
and, of course, it is the majority leader's prerogative to set the 
agenda to call up bills; we will not be able to do that as Members of 
the minority--but what you will hear from us is a principled proposal 
to solve the problems that confront America on each of the big issues 
this Nation wants us to address and wants us to expend our very best 
efforts to try to solve.
  I am delighted we have seen a sort of renewed enthusiasm for finding 
solutions in a principled way. I agree with the Senator from Tennessee, 
the retreat we had I thought was one of the most hopeful retreats I 
have ever participated in as a Member of the Senate because I think 
what we saw is a recommitment to try to solve problems, to avoid the 
partisan bickering and the divisiveness that has resulted in the 
historically lower approval rating of Congress and which turns off so 
many of our constituents.
  Of course, as we all know, as elected officials, if we do not respond 
to our employer and try to address the concerns our employer has--and 
our employers are our constituents--then our employers may look for 
somebody else to do the job in the next election.
  It is up to us to be responsive to those concerns, and I think 
without sacrificing principles, by staying true to those values we 
brought with us but looking for common ground. That is the art in our 
job, and it is more art than science. I have said it before and I will 
say it again, I think compromise for compromise's sake is overrated 
because if all compromise means is sacrificing your principles in order 
to get a problem behind you, I don't think you have done your job. 
Doing your job means standing on your principles but looking for common 
ground, consistent with those principles, to solve problems. There is 
plenty of common ground to find if we will work a little bit harder and 
a little bit more in earnest to try to find it.
  I yield the floor, and I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. BOND. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 


[Congressional Record: January 25, 2008 (Senate)]
[Page S317-S320]

                 FISA AMENDMENTS ACT OF 2007--Continued

  Mr. WHITEHOUSE. Madam President, I ask that the pending amendment be 
set aside so I may call up amendment No. 3905.
  The PRESIDING OFFICER. Is there objection?
  Mr. BOND. I object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. WHITEHOUSE. Madam President, I guess I would like to start by 
saying I appreciate very much the sentiments that were recently 
expressed by the Senator from Tennessee and the Senator from Texas, who 
is my friend who served with me as attorney general at the same time in 
our respective States, Texas and Rhode Island. I ask them to let me 
know when that new approach will begin because I am, frankly, not 
seeing much of it in the Foreign Intelligence Surveillance Act 
procedures we are going through on the floor. I confess, I am a new 
Member of this body, and I do not understand why.
  We heard Senator Dodd, the very distinguished Senator from 
Connecticut, who has served in this body for 27 years, describe how 
important this Chamber is and that it is the right of Senators to 
debate matters, not for the sake of ventilating themselves but toward 
actually getting a vote on a real amendment on a matter of real 
  We had one vote on a committee amendment. Not one Senator has 
achieved getting a vote, and we are on a very short timeframe. I may be 
new, but I will tell you that in the 1 year I have served, I have 
presided a great

[[Page S318]]

deal. The Presiding Officer, the Senator from Minnesota, and I have 
both spent a lot of time in that chair. It is a wonderful place to sit, 
and you get a great view and a great education as to what goes on in 
the Chamber.
  I can recall over and over hearing my colleagues on the Republican 
side of the aisle, as mad as they could be, complaining bitterly 
because the majority had offered them only 10 amendments on a bill or 
only 20 amendments on a bill. I cannot get one called up.
  Let me first say, this is an important issue. On the one hand, we 
have to deal with perhaps the greatest danger our country faces at this 
moment, which is the threat that comes from international terrorism, 
and we have at the same time to deal with one of the basic principles 
of our Government--freedom, freedom from, among other things, 
Government surveillance, unless it is done properly and by the law.
  This is not some new idea. It goes back to the Bill of Rights, where 
the very Founders of this country mandated that before the Government 
could intrude into the persons, places, houses, and effects of 
Americans, they had to get permission from a court.

  The balance between freedom and security is an important one, a 
historic one. So this is no minor issue on which to avoid real debate, 
and the amendments are important ones. The amendments involve the 
immunity issue about which Senator Dodd spoke so passionately. This is 
a very important issue.
  As I see it, we have some cleaning up to do in this body as a result 
of a real mess the Bush administration left us. They could have gotten 
a court order, and we know perfectly well that if a court order had 
been obtained, there would be no issue of immunity for us to address. A 
company following a court order is protected. End of story. They 
couldn't be troubled to get a court order to protect these companies 
they are so concerned about now. But you do not necessarily need a 
court order. You can actually get a certification from the appropriate 
Government official using language this Congress has provided, and it 
will also provide protection to companies that cooperate in Government 
surveillance, as long as they have been notified properly through the 
certification process.
  One would think the litigation would be over, if that certification 
process had been complied with. It would be a slam dunk. Which raises 
the logical conclusion that for some reason, the Government did not 
comply with the certification process. I don't know why they did that. 
I don't know if anybody else knows why they did that. It could be being 
obtuse and stubborn and insisting it had to be done under the 
President's unitary article II authority that they purposefully, 
deliberately failed to follow the certification process to prove that 
point they wanted to prove.
  If that is the case, they have walked these phone companies into all 
this concern we now have to address for no purpose whatsoever. But now 
we do have to address the problem. No matter how they got into it, we 
have this problem to address, and it is not an easy problem.

  One side says: Well, blanket immunity. Well, that is fine, but you 
are taking away rights and due process of people who are in court right 
now. A judge has looked at this case and he didn't throw it out. There 
is nothing to suggest that the litigation going on right now is not 
entirely legitimate. So if we do that, we are taking away real rights 
of real Americans that are currently in play right now before a court.
  I don't know of a time the Congress has ever done that. As a former 
prosecutor, like the Presiding Officer, the very notion that it is the 
legislature's job to go into ongoing legitimate litigation and make 
decisions about who should win and who should lose seems to me a 
spectacular trespass over the doctrine of separation of powers. I hope 
my colleagues in this body who are in the Federalist Society would be 
concerned about this separation of powers.
  On the other hand, we could strip the legislation of its immunity 
entirely and leave the companies in the litigation. That is not a great 
solution either. There is a problem with that solution. The problem 
with that solution is that the Bush administration has bound and gagged 
the company defendants--instructed them they may not defend themselves. 
So here you have legitimate American corporations in legitimate 
litigation being told by the Government that they may not speak, they 
may not answer, they may not defend themselves. That doesn't seem like 
a great outcome either.
  Well, an amendment I wish to offer, the one I just tried to call up, 
proposes a potential solution. If the Government is going to tell them 
they can't defend themselves, then in all decency shouldn't the 
Government step in for them and say: OK, we are going to bind you and 
we are going to gag you in this ring of litigation combat, but we are 
going to step in for you and not leave you unable to defend yourself? 
Isn't that the most decent, basic thing you could expect the Government 
to do? That is what this amendment would do. It would substitute the 
Government for the defendant corporations that the Government has bound 
and gagged in this litigation--muzzled.
  It would do another thing: It would make sure that a court decided 
that these companies had in fact acted in good faith before they were 
given that relief. They have told us they have acted in good faith, but 
we are a legislature. Good faith is a finding the courts make. We are 
not judges. We haven't heard from all sides. We haven't had hearings, 
such as a court would have to get to the bottom of this.
  There is an easy way to do it. You let the FISA Court, which has the 
secrecy necessary to get to the bottom of this, make the determination, 
the fundamental determination: Did these companies, in fact, act in 
good faith? That is a basic point of entry. We have all assumed it to 
be true, but it is not our job as Members of Congress to decide on the 
good faith of an individual litigant in a matter that is before a 
  I think this is a very legitimate amendment. It may not be germane 
postcloture. It may never come up as a result of this. Maybe it is just 
the new Senator. Poor kid, all this work on these bills. Doesn't he 
know the merits don't matter around here? Maybe it is a situation 
related to me not knowing my way around here yet. But I don't think so. 
Because Senator Feinstein, who has been here for a very long time, who 
is very distinguished, who is one of the most bipartisan Senators in 
this Chamber, if not the most bipartisan Senator in this Chamber, has a 
very similar piece of legislation. She has taken the good faith test in 
the Foreign Intelligence Surveillance Court and picked it out as a 
separate, solitary piece of legislation, and she is pursuing that. That 
amendment can't be called up either.
  You could say: Well, maybe it is because I am a Democrat; they are 
shutting down all the Democrats. But my amendment is cosponsored by 
Arlen Specter, the very distinguished Senator from Pennsylvania, who 
has been the chairman of the Judiciary Committee. It is the Specter-
Whitehouse amendment. I don't see how you could have a better 
credential, a better bipartisan credential than to have the Republican 
chairman of the Judiciary Committee as the cosponsor of the amendment. 
And yet we can't call it up, and because of the cloture motion that has 
been filed, it may never be called up.
  I think we are doing serious work, and I think we should get votes on 
these amendments. I know some of my colleagues have said: Well, you 
should defer to the committee bill. The committee bill was so good, it 
was bipartisan, it passed 13 to 2. Well, I was in that committee. Yes, 
it passed 13 to 2, but an awful lot of us said in our remarks on that 
bill that we passed it out of that committee in order to work on it 
further in the Judiciary Committee and in order to move amendments on 
the floor. It did not pass with a 13-to-2 vote of Senators saying this 
is ready to go to the President; this is ready to clear the Senate. It 
passed on a 13-to-2 vote of Senators who knew that the bill was going 
to the Judiciary Committee and who knew that the bill was going to the 
floor and had reason to expect the ordinary courtesies of this body to 
be able to offer amendments would be honored.
  In fact, the amendment I tried to offer yesterday that was objected 
to, that I can't call up, I raised in the Intelligence Committee. I was 
told by the executive branch officials there--and I should say that 
throughout this process I hope nobody would challenge how

[[Page S319]]

carefully my office has worked with the administration to get these 
things right, to get technical language worked through properly--I was 
told by the executive branch officials that the way I had written the 
amendment caused technical difficulties. So I didn't pursue it in the 
Intelligence Committee. I withdrew it, noting that we would work 
through the technical difficulties and then bring it up again later on.
  Nobody said then, oh, Senator Whitehouse, there is going to be no 
later on; the committee vote is all you will get. Nobody said that. 
Because that would violate the history and traditions of the Senate, 
because it would be wrong, and because it wasn't the program. It wasn't 
the plan at the time. I feel it has been represented to me that these 
amendments would be voted on, and I feel that representation has been 
dishonored by the procedure we are in right now.
  I want to read something. I prepared remarks in the event that this 
amendment was going to go in. Of course, I thought it was going to go 
in. I had the Republican former chairman of the Judiciary Committee as 
a cosponsor and it addresses the biggest question in this legislation. 
It provides a potential resolution of the conflict between the two 
arguments. Why on Earth would it not be something that I would be able 
to exercise my traditional right to raise on the floor? So I planned 
ahead and I wrote remarks for that occasion. Here is what I wrote at 
the very end of the remarks.

       Madam President, whether this amendment passes or fails, I 
     would like to say that it is the product of a truly 
     commendable process. Everybody here knows the old saw that 
     the making of law is like the making of sausage. You might 
     like the results, but you don't want to see what goes into 
     making it. Not so here. This amendment and Senator 
     Feinstein's are the results of many hours of thoughtful, 
     bipartisan consideration, hard work by Senators and their 
     staffs, reasoned and respectful committee debate, and what I 
     am sure will be thorough debate on the floor.

  Those are the remarks I wrote. And I have to say right now, those 
words taste like ashes in my mouth. I hope the spirit that Senator 
Alexander and Senator Cornyn brought to the floor a moment ago will 
begin to animate the FISA debate, and that legitimate--and I believe my 
Republican colleagues will concede these are legitimate--and sincere--
and I believe my Republican colleagues will concede these are sincere--
and important amendments have a chance to be raised and debated and 
voted on here on the floor of the Senate.
  Madam President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Missouri is recognized.
  Mr. BOND. Madam President, first, I express my admiration for the 
Senator from Rhode Island. The hard work he has put in on the Senate 
Intelligence Committee and the experience he brings to that committee 
is very important. We have worked with him on many issues that we were 
able to accomplish in the committee. I agree with his assertion that we 
need to balance freedom and security. That is one of the heavy 
responsibilities we have in the Senate Intelligence Committee.
  He talks about an amendment he has presented on a bipartisan basis, 
and he and his Republican cosponsor feel very strongly about it. I 
would be happy at the appropriate time to have debate and a vote on 
this very important measure. But I also happen to agree with the Senate 
majority leader, who said back in December that the issues before us on 
this FISA bill are so important that we must ensure they have a 60-vote 
margin for passage, the same vote that would have to occur if we were 
to overcome a filibuster. That will ensure that there will be no 
filibuster of the bill.
  We filed cloture to make sure we could go forward with the bill. We 
are waiting to see how that works out. But the measures, as I have 
stated earlier--and the proponent of this amendment had the distinct 
misfortune to be in the chair when I addressed this earlier today--but 
for my colleagues, I would say that we have before us a very carefully 
crafted bipartisan compromise to improve the FISA, Foreign Intelligence 
Surveillance Act, significantly and to ensure that it can work to keep 
our country safe.
  Passing these measures on a 60-vote margin is nothing new. When I 
brought the Protect America Act to the floor on August 3, I brought it 
on an agreement that we had to have 60 votes to pass it, because it is 
a very important bill. And I assume that this bill, which I hope will 
pass, will have to pass with 60 votes.
  I think it is a reasonable proposition to say that a 60-vote 
threshold must be achieved to ensure there is bipartisan agreement on 
something that is this important to our security and our freedom.
  Now, my colleague raised the question about why the immediate 
interception of foreign intelligence did not go forward right after 9/
11, when the President determined there must be interception of 
telephone and other electronic transmissions coming from foreign 
terrorists abroad into the United States.
  I am told the administration met with the Gang of 8, leaders of the 
House and Senate and the House and Senate Intelligence Committees. They 
were faced with the problems that arose when the court order occurred 
in the spring of last year, saying the existing FISA law did not permit 
interception of communications coming through the way--coming the way 
by which they now come, through cable and wire.
  Previously, collections occurred routinely against foreign sources by 
radio wave. And there were minimization procedures. But the FISA Court 
was not involved. Because of the change in technology, as the order of 
the court indicated last spring, FISA applied to collection of most of 
the foreign terrorist communications, whether they were coming into the 
United States or into other areas.
  We were advised by the commanding general, Special Operations Command 
General McCrystal, that the limitations of FISA in April and May and 
June and July prevented our intelligence authorities from collecting 
vital signals information on communications among terrorists in the 
battlefield, putting our troops at risk.
  He begged and pleaded to get it done. Well, despite the begging and 
pleading to get it done, you have seen how long it takes us to get FISA 
changed. As I understand the conversations held in the aftermath of 9/
11, when we knew there were other attacks being planned and we needed 
to get control of them, there was general agreement among the parties, 
legislative and executive, that we could not afford to try to take the 
time to try to change FISA, to make it work with the new electronic 
signals means of communication in time to stop further terrorist 
  How long has it taken to get FISA passed? Well, the Director of 
National Intelligence sent up a bill in April pointing out that the old 
FISA law did not permit collection of foreign signals intelligence from 
known terrorist targets abroad. He sent it up in April. He testified 
before our committee in May. He came to the Senate and had a hearing in 
our classified room telling leaders of both parties how important and 
how sensitive it was.
  Another month passed. Nothing happened. He came back with a short-
term extension that had to have a 6-month sunset on it. We passed that. 
We passed that with a 60-vote margin. That has become standard for any 
controversial and important legislation coming before this body, which 
is applied not only in FISA but many other circumstances.
  So we got a 6-month extension. Now, we are still debating whether to 
have a slightly longer extension of the FISA bill. We reported the bill 
on a bipartisan 13-to-2 majority in October. It sat for 2 months. The 
majority leader tried to bring it up, but he was filibustered from 
bringing it up.
  We are now at the end of January, when the Protect America Act 
expires on February 1. We need to move forward to get this bill passed. 
We need to move forward as promptly as we can. But we need to move 
forward on the same ground rules by which other major legislation and 
which the Protect America Act came to the floor; that is, a 60-vote 
margin to ensure there is bipartisan agreement on something as 
important as the freedom and security framed by the FISA debate.
  Let me add a word or two about the FISA Court. I had thought the 
distinguished Senator from Rhode Island was going to offer an amendment 
on assessing compliance and toss that to the FISA Court. Well, the FISA 
Court, or FISC as we call it, was created in 1978

[[Page S320]]

to issue orders for domestic surveillance on particular targets.
  Congress specifically left foreign surveillance activities to the 
executive branch and to the intelligence community. The FISA Court, 
they are article III judges who are called in from time to time to make 
the judgments of probable cause for issuing warrants. They have 
expertise in issuing warrants for surveillance on a domestic basis.
  The bill before us gives them that responsibility, as did the other 
FISA, the old FISA, for issuing those orders for people or facilities 
in the United States. The old one said ``facilities in the United 
  Well, that court is not set up to deal with foreign intelligence 
surveillance. As I quoted yesterday, the court's own words said--and 
this is the December 11, In re: Motion for Court Records. The court 
stated that: The FISA Court judges are not expected to or desire to 
become experts in foreign intelligence activities and do not make 
substantive judgments on the propriety or need for a particular 
surveillance. Even if a typical FISA judge has more expertise in 
national security matters than a typical district court judge, that 
expertise would still not equal that of the executive branch which is 
constitutionally entrusted with protecting national security.
  So I expect we will get to the point where we will be debating the 
distinguished Senator's assessing compliance amendment. But he has 
brought today the substitution amendment.
  I have already explained why we could not get through signals 
collection immediately after 9/11 if we had gone to the old FISA. How 
many months would it have taken? Well, the leaders who apparently spoke 
with the intelligence community and the White House said they did not 
want to highlight the fact that we were going to be listening in and 
they did not think it would work quickly.
  The intelligence committee has carefully assessed the orders which 
were given to the telecommunications carriers which may or may not have 
participated in the Terrorist Surveillance Program. And they were 
based, yes, they were based largely on article II.
  The FISC has already indicated nothing Congress can do can extinguish 
the President's authority under article II, but Congress also passed 
the authorization for use of military force, which was a counterbalance 
in the weighing of the constitutional arguments of article II with the 
provisions of the FISA law.
  I have reviewed the Attorney General's findings, the Department of 
Justice findings. I have read the authorizations and the directives. It 
is clear to me, and clear to others, most of the others who have 
reviewed it, they were clearly acting under the color of law.

  I happen to think they were right. You can make an argument that 
maybe they were not right. But the carriers that may have participated 
were not in a position to challenge those. They got a lawful order from 
the head of the intelligence community, based on authorization from the 
President, in a manner cleared by the Department of Justice. Under 
those circumstances, I believe it would not only have been unpatriotic, 
but it would have been willful for the carriers to refuse to 
participate. Yet they are being sued.
  I think the suits are designed to cripple our intelligence community. 
There are not going to be significant judgments awarded no matter what 
they say because anybody who was intercepted would have to come in to 
court and say they were intercepted and prove harm. I really question 
whether they can do that. But under the substitution argument, the 
disaster to our intelligence operations is clear, as is the damage to 
the reputation and the business of any carriers which may have 
  Back in 2006, right after the disclosure of this and the terrorist 
finance tracking measure, when the newspapers carried it, television 
carried it, terrorist leaders--very bright people--abroad learned of 
it, communicated about it on their own communications, and those 
communications, I was told in the field, went down significantly.
  So I asked General Hayden, at his confirmation hearing to be head of 
CIA, how badly these disclosures hurt us. And he said at the time that 
we are applying the Darwinian theory to terrorists; we are only 
capturing dummies. The more we disclose about the workings of our 
intelligence intercept capabilities, the more those whom we would 
target know how to avoid them. And they are taking steps; they know too 
much about it. Any further disclosures would further complicate and 
damage the collection capabilities of our intelligence community.
  Moreover, the damage to the reputation of the carriers would be 
significant. The damage would occur likely in exposing the carriers--
their employees and their facilities--to terrorist activities or 
vigilante activities. It would destroy their business reputation, cause 
untold harm in the United States, and probably effectively curtail 
their ability to operate overseas. If they are put out of operation or 
if they are limited in their operations, then the intelligence 
community loses a substantial means of acquiring the intelligence we 
  So when this bill comes up--I expect it will come up, but I believe 
it must come up under a 60-vote rule or we are going to go through the 
normal process of getting to 60 votes, and we will never get anywhere. 
I think both sides of the aisle should recognize that. I will be happy 
to make these arguments.
  I know my colleague from Rhode Island is a very skilled lawyer, a 
very effective debater. He will present his arguments, I will present 
my arguments, and there will be others who will join with us. So while 
I would love to get on with the debate and votes, we are not going to 
go there until we resolve the question of whether there is a 60-vote 
  So I thank the Chair, and I thank my colleague from Rhode Island.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Rhode Island is recognized.
  Mr. WHITEHOUSE. Madam President, I appreciate very much the arguments 
made by the very distinguished Senator from Missouri, who is also the 
vice chairman of the Intelligence Committee and possesses great 
experience in this area. My point, though, is that all these arguments 
are for naught if the simple courtesy of a Senator being allowed to 
vote on his amendment is not honored.
  This particular amendment being nongermane postcloture means it may 
very well be squeezed out by the procedural devices the Republican 
leader has applied. So my simple question is, if I may ask it through 
the Chair to the distinguished Senator from Missouri, the Republican 
manager of this bill, can we assure Senator Specter and myself that 
this amendment will, at the appropriate time in this legislation, 
receive a vote?
  Mr. BOND. Madam President, I am happy to respond as soon as we go 
back to the normal means of proceeding on FISA matters, establishing a 
60-vote threshold, which is the standard I had to meet to bring the 
Protect America Act to the floor. I would certainly expect that his 
amendment would be brought up, fully discussed, and debated. This is 
one of the major issues we have to decide. But we have to decide it on 
a 60-vote point of order.


[Congressional Record: January 25, 2008 (Senate)]
[Page S320-S322]


  Mr. DORGAN. Madam President, we are talking about FISA we use a lot 
of acronyms in Washington, DC, unfortunately--the Foreign Intelligence 
Surveillance Act. It is a complicated subject, and one, if people have 
been watching the debate, that is also controversial. There is a lot of 
passion about this subject. We have people standing up and saying: None 
of this should be disclosed. We should not be talking about this. This 
is about the ability to protect our country against terrorists. Of 
course, we have to listen into communications and intercept 
communications. It is the only way to find out if there are terrorist 
acts being plotted by terrorist groups, and so on. There is that kind 
of thing.
  There are concerns on the other side by people who say: Wait a 

[[Page S321]]

There is something called a Constitution in this country. There is a 
right to privacy, a right to expect that the Government will not be 
spying on American citizens without cause.
  This is a very controversial and difficult subject. Frankly, nearly 
everyone, with the possible exception of the chairman and ranking 
member or maybe one or two others on the Intelligence Committee, knows 
very little about that which we are discussing.
  Let me put up a photograph of a door. This is a door in San 
Francisco, CA, a rather unremarkable photograph of a door. This is a 
door that is in AT&T's central offices in San Francisco. A courageous 
employee of AT&T named Mark Klein, who had been with the company for 22 
years, blew the whistle on what was happening behind this door. 
According to Mark Klein, the National Security Agency had connected 
fiber optic cables to AT&T's circuits through which the National 
Security Agency could essentially monitor all of the data crossing the 
Internet. Here is what Mr. Klein had to say went on behind this door:

       It appears the [National Security Agency] is capable of 
     conducting what amounts to vacuum-cleaner surveillance of all 
     the data crossing the Internet--whether that be people's e-
     mail, web surfing, or any other data.

  The description of what was happening at this one telephone company 
in this one location in San Francisco was this: the intercepting of 
communications at the AT&T Folsom Street facility, millions, perhaps 
billions of communications from ordinary Americans coming into and 
through the facility, which would normally have been the case for a 
telephone company, and a splitter being used, according to the 
discussion by Mark Klein, splitting off all of this conversation into 
an NSA-controlled room, to be eventually evaluated with sophisticated 
programming, and then going back out in order to complete the 
communication. So you have effectively a copy of everything that is 
happening going through with a splitter to a secret room.
  When this became public, when a whistleblower working for the company 
said, here is what is happening, there was an unbelievable outcry on 
both sides. Some people said: What on Earth is happening? We have 
secret rooms in which the National Security Agency is running all this 
data and all this information through and spying on American citizens? 
Others said: What is going on? Who on Earth would have decided they 
should disclose this publicly? They are going to alert the terrorists 
to what we are doing. We had both sides aghast that this was disclosed. 
It is important to say that, initially, almost no one in an official 
capacity was willing to admit to this. Finally, it was admitted, yes, 
there was a program. The President said: Yes, there is a program--
speaking, apparently, of just this program; we don't know of other 
programs that exist or may exist, but this program existed without our 
knowledge. The President indicated this program existed because we are 
going after the bad guys, and we have a right to do that. And we did 
this program because the process that had been set up because of abuses 
with respect to eavesdropping and spying on American citizens decades 
ago, that process was way too cumbersome, took far too much time, and 
we needed to streamline that. That is a paraphrase. But there was an 
admission that this program existed and no additional legal authority 
needed to empower the President to do it.
  So that is where we are. Most of us don't know the full extent of 
this program at all. In fact, my understanding is that rooms like this 
exist in other parts of the country with other telephone companies 
where splitters are used to move data to separate rooms and data is 
  This whole process comes from several decades ago when something 
called the FISA Court was set up, a court to evaluate the questions 
about when it is legal and appropriate and when the Government is able 
to intercept communications. The FISA Court was established for the 
very purpose of trying to make the judgment about when it is 
appropriate to go after the bad guys and how to protect our civil 
liberties at the same time.
  The FISA Court was an outgrowth of concern by the Congress when we 
discovered that there was a time in this country when we had the 
National Security Agency running secret projects called Shamrock and 
Minaret to gather both international communications and also domestic 
communications. Project Shamrock actually started during the Second 
World War when major communications companies of the day gave the 
Federal Government access to all of their international traffic. One 
can imagine, in the fight against the Nazis and the Japanese Imperial 
Army, the desire for international communications to evaluate things 
that might threaten this country's security. But the Shamrock program 
then, as we know, changed over time.
  At first the goal was to intercept international telegrams relating 
to foreign targets. Then, soon the Government began to intercept 
telegrams of U.S. citizens. By the time there were hearings held in the 
Congress, the National Security Agency was intercepting and analyzing 
about 150,000 messages per month.

  Data from Project Shamrock was then used for another project code 
named Project Minaret, which we now know spied on perceived political 
opponents of the then-administration of Richard Nixon. Under this 
program the NSA added Vietnam war protesters to its watch list. After 
there was a march on the Pentagon, the Army requested that they add 
antiwar protesters. The list included people such as folk singer Joan 
Baez and civil rights leader Dr. Martin Luther King, Jr. We just 
celebrated within the week the Federal holiday celebrating the birthday 
of Martin Luther King, Jr. Yet it was not too many decades ago that Dr. 
Martin Luther King, Jr., was under surveillance by his own Government.
  The Congress passed its findings, when it did investigative hearings, 
and the Foreign Intelligence Surveillance Act created the FISA Court.
  Here is the experience with the FISA Courts. Between 1975 and 2006, 
there were 2,990 warrants issued by the FISA Court. Only five were 
denied. What that suggests is that it is not too difficult to get 
approval by the FISA Court for surveillance. But the President and Mr. 
McConnell, the head of our intelligence agency, have indicated that 
there has been a problem.
  For example, Mr. McConnell cited the capture of three American 
soldiers who were later killed in Iraq. Right after they were captured 
there was a period of time when it was critically important to be able 
to intercept communications in Iraq, and they were encumbered at a time 
when it was critical to find out who held these soldiers.
  That is not accurate, and the head of intelligence would have known 
that. I don't know why he represented that. There is a period of time 
when in an emergency situation, you can begin surveillance without 
having to go to FISA. You have to go FISA after that period of time, 
but you are given an opportunity for emergency surveillance even before 
you get the approval or even before you go to the FISA Court.
  What we have learned, however, through all of this process is from a 
December 2005 report in the newspapers. President Bush had authorized 
the National Security Agency to eavesdrop without warrants inside the 
United States which bypassed the entire FISA Court system. It turns out 
that most of the large telephone companies in this country had gone 
along with the administration's request for that activity.
  We are told that the administration, Attorney General Gonzales, and 
others furnished the telephone companies with some sort of letter, a 
certification of sorts. We don't know what that letter was, however, 
because the administration, citing the State Secrets Act, refuses to 
allow that to be disclosed.
  I think if they provide certification to a telephone company--and the 
telephone company relies on that--by officers of the Federal 
Government, in good faith, let's have that disclosed. Why should we 
wonder about the actions of a telephone company? If, in fact, you have 
an Attorney General of the United States who is certifying, let's find 
out what this administration did. Let's find out how they did it. Let's 
not have them tell us you cannot even see what was provided to a 
telephone company in terms of certification. That, in my judgment, does 
not pass the red face test.
  I hope very much we will begin to learn at some point what this 
administration has done, when they did it, and

[[Page S322]]

what the consequences of it are. This issue of the Foreign Intelligence 
Surveillance Act has become a political football by this 
administration. The last time we debated this, some while ago, it was 
quite clear that the politics of it were viewed as wonderful politics 
by the other side and by the White House. But this ought not be about 
politics at all. This ought to be about two issues, both of which are 
critically important: One is protecting this country's interests, yes, 
giving us a chance to make sure we understand what the terrorists are 
doing, how to foil terrorist attempts to injure this country--it is 
about that; and that is very important--but it is also about civil 
liberties and protecting the rights of the American people at the same 
  We thought we had done that by putting together the FISA Court. We 
thought we had done that by establishing a procedure that needed to be 
followed. We now understand the President, with his lawyers, says those 
laws do not matter. There is in the Constitution, they say, something 
about the powers of the Commander in Chief, and he can do whatever he 
wants. That is a pretty dangerous interpretation of the U.S. 
  We debate this in so much ignorance because almost no one knows what 
this administration has done, and they are preventing us from knowing 
as much as we should know, in most cases, by claiming protection under 
the State Secrets Act, and not even allowing the release of the letter 
that was provided to the telephone companies that cooperated that 
describes to them the legal authority for doing so.
  I think there is much to be learned here, much we need to know. I 
think it is very important, as we reach an agreement on the Foreign 
Intelligence Surveillance Act--and we should because it is an important 
circumstance by which we need, in certain cases, when we believe there 
is information being passed from terrorist to terrorist, and so on--if 
those communications are being run through this country, we need to be 
able to intercept and interpret what is happening--but it is critically 
important we not allow a kind of an approach to this where there is no 
oversight, there is no check.
  We have a government of checks and balances. What the President and 
his people seem to be saying to us is: We are not interested in checks 
and balances. We have the authority in the Constitution, as we 
interpret it, and that means it exceeds every law you can pass. We are 
going to do what we want to do. And if you don't like it, tough luck. 
And if you don't like it, by the way, what we will say to the American 
people is you are not willing to stand up for the security of this 
  It is outrageous. It is dragging this issue smack-dab in the middle 
of their little political balloon. But this is a much more important 
process than that. We need to do this, and we need to get it right in 
order to protect America. We need to do this, and we need to get it 
right in order to protect the interests of the American people as 
well--and that interest of privacy and that interest of making sure 
that ``big brother government'' is not running all of your telephone 
calls and all of your e-mails and all of your information through its 
drift net to find out what you are saying and what you are doing and 
who you are talking to.
  That is not what I understand to be the best interests of this 
country or the guarantees that exist in the Constitution for the 
American people. That is why this is worth an important controversy and 
an important fight. It is why it is for us to take enough time to get 
it right. This is a big issue. We do a lot of things on the floor of 
the Senate that are not so big--not big issues. They are smaller issues 
in consequence. This issue is about freedom and liberty and the 
guarantees given the American people in the Constitution. It is about 
whether there is a check on Presidential power that assumes they have 
the power that exceeds all other laws. If we do not have that kind of 
check and balance in this Government, then we have bigger problems than 
I thought.
  So I only wanted to say, with respect to this issue, we do not know 
much about it. We know at this point that behind this door, as shown on 
this chart--behind this door--exists information split off what is 
called a splitter from the main line. Massive amounts of information 
come into it--in this case, it was AT&T; it could have been other 
telephone companies--it is split off, and then all of it is evaluated 
to find out: Is there something there that is suspicious? It is not the 
way America has ever worked, and not the way it should work.
  So the more we know, I think the more we will be able to better 
understand how to do two things at once: protect our country against 
terrorists, and protect the civil liberties of the American people. 
Both are important. At least there is one group of people in this 
political system of ours that believes the first is far more important 
than the second. They are wrong. They are both important, and both 
worth standing up for.