[Congressional Record: June 25, 2008 (Senate)]
[Page S6108-S6137]

                      FISA AMENDMENTS ACT OF 2008

  Mr. FEINGOLD. Mr. President, I strongly oppose H.R. 6304, the FISA 
Amendments Act of 2008. I will vote against cloture on the motion to 
proceed. This legislation has been billed as a compromise between 
Republicans and Democrats. We are asked to support it because it is 
supposedly a reasonable accommodation of opposing views.
  Let me respond to that as clearly as possible. This bill is not a 
compromise; it is a capitulation. This bill will effectively and 
unjustifiably grant immunity to companies that allegedly participated 
in an illegal wiretapping program, a program that more than 70 Members 
of this body still know virtually nothing about. This bill will

[[Page S6109]]

grant the Bush administration, the same administration that developed 
and operated this illegal program for more than 5 years, expansive new 
authorities to spy on Americans' international communications.
  If you don't believe me, here is what Senator Bond had to say about 
the bill:

  I think the White House got a better deal than even they had hoped to 

  House minority whip Roy Blunt said:

       The lawsuits will be dismissed.

  There is simply no question that Democrats who had previously stood 
strong against immunity and in support of civil liberties were on the 
losing end of this backroom deal.
  The railroading of Congress began last summer when the administration 
rammed through the so-called Protect America Act, or PAA, vastly 
expanding the Government's ability to eavesdrop without a court-
approved warrant. That legislation was rushed through this Chamber in a 
climate of fear--fear of terrorist attacks and fear of not appearing 
sufficiently strong on national security. There was very little 
understanding of what the legislation actually did. But the silver 
lining was that the law did have a 6-month sunset. So Congress quickly 
started working to fix the legislation. The House passed a bill last 
fall. The Senate passed its bill, one that I believed was deeply 
flawed, in February.
  As the PAA 6-month sunset approached in late February, the House 
faced enormous political pressure simply to pass the Senate bill before 
the sunset date, but the reality was that no orders under the PAA were 
actually going to expire in February. Fortunately, to their great 
credit, the House stood firm in its resolve not to pass the Senate bill 
with its unjustified immunity provisions. The House deserves enormous 
credit for not buckling in the face of the President's attempts to 
intimidate them. Ultimately, the House passed new legislation in March, 
setting up the negotiations that have led us here today.
  I think it is safe to say that even many who voted for the Protect 
America Act last year came to believe it was a mistake to pass that 
legislation. While the House deserves credit for refusing to pass the 
Senate bill in February and for securing the changes in this new bill, 
the bill is still a very serious mistake.
  The immunity provision is a key reason for that. It is a key reason 
for my opposition to the legislation and for that of so many of my 
colleagues and, frankly, so many Americans. No one should be fooled 
about the effect of this bill. Under its terms the companies that 
allegedly participated in the illegal wiretapping program will walk 
away from these lawsuits with immunity. They will get immunity. There 
is simply no question about it. Anyone who says this bill preserves a 
meaningful role for the courts to play in deciding these cases is just 
  I am a little concerned that the focus on immunity has diverted 
attention away from the other very important issues at stake in this 
legislation. In the long run, I don't believe this bill will be 
actually remembered as the immunity bill. I think this bill is going to 
be remembered as the legislation in which Congress granted the 
executive branch the power to sweep up all of our international 
communications with very few controls or oversight.
  Here I am talking about title I of the bill, the title that makes 
substantive changes to the FISA statute. I would like to explain why I 
am so concerned about the new surveillance powers granted in this part 
of the bill, and why the modest improvements made to this part of the 
bill don't even come close to being sufficient.
  This bill has been sold to us as necessary to ensure that the 
Government can collect communications between persons overseas without 
a warrant and to ensure that the Government can collect the 
communications of terrorists, including their communications with 
people in the United States. No one disagrees that the Government 
should have this authority. But the bill goes much further, authorizing 
widespread surveillance involving innocent Americans at home and 
  First, the FISA Amendments Act, like the Protect America Act, will 
authorize the Government to collect all communications between the 
United States and the rest of the world.
  That could mean millions upon millions of communications between 
innocent Americans and their friends, families, or business associates 
overseas could legally be collected. Parents calling their kids 
studying abroad, e-mails to friends `` serving in Iraq--all of these 
communications could be collected, with absolutely no suspicion of any 
wrongdoing, under this legislation. In fact, the DNI even testified 
that this type of ``bulk collection'' would be ``desirable.''
  The bill's supporters like to say that the Government needs 
additional powers to target terrorists overseas. But under this bill, 
the Government is not limited to targeting foreigners outside the 
United States who are terrorists, or who are suspected of some 
wrongdoing, or who are members or agents of some foreign government or 
organization. In fact, the Government does not even need a specific 
purpose for wiretapping anyone overseas. All it needs to have is a 
general ``foreign intelligence'' purpose, which is a standard so broad 
that it basically covers all international communications.
  That is not just my opinion. The DNI has testified that, under the 
PAA, and presumably this bill, the Government could legally collect all 
communications between the United States and overseas. Let me repeat 
that. Under this bill, the Government can legally collect all 
communications--every last one--between Americans here at home at home 
and the rest of the world.
  I should note that one of the few bright spots in this bill is the 
inclusion of a provision from the Senate bill to prohibit the 
intentional targeting of an American overseas without a warrant. That 
is an important new protection. But that amendment does not prevent the 
indiscriminate vacuuming up of all international communications, which 
would allow the Government to collect the communications of Americans 
overseas, including with friends and family back home, without a 
  I tried to address this issue of ``bulk collection'' several times, 
working in the Intelligence Committee, the Judiciary Committee, and 
ultimately on the Senate floor in February, when I offered an amendment 
that would have required that there be some foreign intelligence 
purpose for the collection of communications to or from particular 
targets. The vast majority of Democrats supported this effort, but, 
unfortunately, it was defeated. So the bill today we are considering 
does not address this serious problem.
  Second, like the earlier Senate version, this bill fails to 
effectively prohibit the practice of reverse targeting and this is; 
namely, wiretapping a person overseas when what the Government is 
really interested in is listening to an American here at home with whom 
the foreigner is communicating. The bill does have a provision that 
purports to address this issue. The bill prohibits intentionally 
targeting a person outside the United States without an individualized 
court order if ``the purpose'' is to target someone reasonably believed 
to be in the United States. But this language would permit intentional 
and possibly unconstitutional warrantless surveillance of an American 
so long as the Government has any interest in the person overseas with 
whom the American is communicating. And, if there was any doubt, the 
DNI has publicly said that the Senate bill--which contained identical 
language as the current bill--merely ``codifies'' the administration's 
position, which is that the Government can wiretap a person overseas 
indefinitely without a warrant, no matter how interested it may really 
be in the American with whom that person overseas is communicating.
  Supporters of this bill also will argue that it requires the 
executive branch to establish guidelines for implementing this new 
reverse targeting requirement. But the guidelines are not subject to 
any judicial review. And requiring guidelines to implement an 
ineffective limitation is not a particularly comforting safeguard.
  When the Senate considered the FISA bill earlier this year, I offered 
an amendment--one that had actually been approved by the Senate 
Judiciary Committee--to make this prohibition on reverse targeting 
meaningful. My amendment, which again had the support of the vast 
majority of the Democratic caucus and was included in the bill passed 
by the House in March,

[[Page S6110]]

would have required the Government to obtain a court order whenever a 
significant purpose of the surveillance is actually to acquire the 
communications of an American in the United States. This would have 
done a far better job of protecting the privacy of the international 
communications of innocent Americans. Unfortunately, it is not in this 
  Third, the bill before us imposes no meaningful consequences if the 
Government initiates surveillance using procedures that have not been 
approved by the FISA Court, and the FISA Court later finds that those 
procedures were unlawful. Say, for example, that the FISA Court 
determines that the procedures were not even reasonably designed to 
wiretap foreigners rather than Americans. Under the bill, all of that 
illegally obtained information on Americans can be retained and used 
anyway. Once again, there are no consequences for illegal behavior.
  Now, unlike the Senate bill, this new bill does generally provide for 
FISA Court review of surveillance procedures before surveillance 
begins. But it also says that if the Attorney General and the DNI 
certify that they don't have time to get a court order and that 
intelligence important to national security may be lost or not timely 
acquired, then they can go forward without this judicial approval. This 
is a far cry from allowing an exception to FISA Court review in a true 
emergency because arguably all intelligence is important to national 
security and any delay at all might cause some intelligence to be lost. 
So I am really concerned that this so-called exigency exception could 
very well swallow the rule and undermine any presumption of prior 
judicial approval.
  But whether the exception is applied broadly or narrowly, if the 
Government invokes it and ultimately engages in illegal surveillance, 
the court should be given at least some flexibility after the fact to 
determine whether the government should be allowed to keep the results 
of illegal surveillance if it involves Americans. That is what another 
one of my amendments on the Senate floor would have done, an amendment 
that actually garnered 40 votes. Yet this issue goes completely 
unaddressed in the so-called compromise.
  Fourth, this bill doesn't protect the privacy of Americans whose 
communications will be collected in vast new quantities. The 
administration's mantra has been: Don't worry, we have minimization 
procedures. Minimization procedures are nothing more than unchecked 
executive branch decisions about what information on Americans 
constitutes ``foreign intelligence.'' As recently declassified 
documents have again confirmed, the ability of Government officials to 
find out the identity of Americans and use that information is 
extremely broad. Moreover, even if the administration were correct that 
minimization procedures have worked in the past, they are certainly 
inadequate as a check against the vast amounts of Americans' private 
information that could be collected under this bill. That is why on the 
Senate floor joined with my colleagues, Senator Webb and Senator 
Tester, to offer an amendment to provide real protections for the 
privacy of Americans, j while also giving the Government the 
flexibility it needs to wiretap terrorists overseas. But this bill, 
like the Senate bill, relies solely on these inadequate minimization 
  The broad surveillance powers involving international communications 
that are contained in this legislation are particularly troubling 
because we live in a world in which international communications are 
increasingly commonplace. Thirty years ago it was very expensive, and 
not very common, for most Americans to make an overseas call. Now, 
particularly with e-mail, such communications happen all the time. 
Millions of ordinary, and innocent, Americans communicate with people 
overseas for entirely legitimate personal and business reasons. Parents 
or children call family members overseas. Students e-mail friends they 
have met while studying abroad. Business people communicate with 
colleagues or clients overseas. Technological advancements combined 
with the ever more interconnected world economy have led to an 
explosion of international contacts.
  Supporters of the bill like to say that we just have to bring FISA up 
to date with new technology. But changes in technology should also 
cause us to take a close look at the need for greater protections of 
the privacy of our citizens. If we are going to give the Government 
broad new powers that will lead to the collection of much more 
information on innocent Americans, we have a duty to protect their 
privacy as much as we possibly can. And we can do that without 
sacrificing our ability to collect information that will help us 
protect our national security. This supposed compromise, unfortunately, 
fails that test.
  I don't mean to suggest that this bill does not contain some 
improvements over the bill that the Senate passed early this year. 
Clearly it does, and I appreciate that. Certainly, it is a good thing 
that this bill includes language making clear, once and for all, that 
Congress considers FISA and the criminal wiretap laws to be the 
exclusive means by which electronic surveillance can be conducted in 
this country--a provision that Senator Feinstein fought so hard for. 
And it is a good thing that Congress is directing the relevant 
inspectors general to do a comprehensive report on the President's 
illegal wiretapping program--a report whose contents I hope will be 
made public to the greatest degree possible. And it is a good thing 
that the bill no longer redefines the critical FISA term ``electronic 
surveillance,'' which could have led to a lot of confusion and 
unintended consequences.
  All of those provisions are positive developments, and I am glad that 
the ultimate product seemingly destined to become law contains these 
  But I just can't pretend somehow that these improvements are enough. 
They are nowhere close. When I offered my amendments on the Senate 
floor in February, the vast majority of the Democratic caucus supported 
me. While I did not have the votes to pass those amendments, I am 
confident that more and more Members of Congress will agree that 
changes to this legislation need to be made. If we can't make them this 
year, then Congress must return to this issue--and it must do so as 
soon as the new President takes office. These issues are far too 
important to wait until the sunset date, especially now that it is set 
in this bill for 2012, another presidential election year.
  But let me now turn to the grant of retroactive immunity that is 
contained in this bill because on that issue there is no question that 
any differences between this bill and the Senate bill are only 
cosmetic. Make no mistake: This bill will result in immunity.
  Under the terms of this bill, a Federal district court would evaluate 
whether there is substantial evidence that a company received ``a 
written request or directive . . . from the Attorney General or the 
head of an element of the intelligence community . . . indicating that 
the activity was authorized by the President and determined to be 
  But we already know from Senate Select Committee on Intelligence's 
committee report last fall that the companies received exactly these 
materials. That is already public information. So under the exact terms 
of this proposal, the court's evaluation would essentially be 
  Regardless of how much information the court is permitted to review, 
what standard of review is employed, how open the proceedings are, and 
what role the plaintiffs are permitted to play, the court will 
essentially be required to grant immunity under this bill.
  Now, proponents will argue that the plaintiffs in the lawsuits 
against the companies can participate in briefing to the court. This is 
true. But they are allowed to participate only to the extent it does 
not necessitate the disclosure of classified information. The 
administration has restricted information about this illegal program so 
much that, again, more than 70 Members of this Chamber alone don't even 
have access to the basic facts about what happened. So let's not 
pretend that the plaintiffs will be able to participate in any 
meaningful way. And even if they could participate fully, as I said 
before, immunity is a foregone conclusion under the bill.
  This result is extremely disappointing on many levels, perhaps most 
of all because granting retroactive immunity is unnecessary and 
unjustified. Doing this will profoundly

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undermine the rule of law in this country.
  For starters, current law already provides immunity from lawsuits for 
companies that cooperate with the Government's request for assistance, 
as long as they receive either a court order or a certification from 
the Attorney General that no court order is needed and the request 
meets all statutory requirements. But if requests are not properly 
documented, FISA instructs the telephone companies to refuse the 
Government's request, and subjects them to liability if they instead 
still decide to cooperate. Now, there is a reason for this. This 
framework, which has been in place for 30 years, protects companies 
that act at the request of the Government while also protecting the 
privacy of Americans' communications.
  Some supporters of retroactively expanding this already existing 
immunity provision argue that the telephone companies should not be 
penalized if they relied on a high-level Government assurance that the 
requested assistance was lawful. But as superficially appealing as that 
argument may sound, it completely ignores the history of the FISA law.
  Telephone companies have a long history of receiving requests for 
assistance from the Government. That is because telephone companies 
have access to a wealth of private information about Americans--
information that can be a very useful tool for law enforcement. But 
that very same access to private communications means that telephone 
companies are in a unique position of responsibility and public trust.
  And yet, before FISA, there were basically no rules at all to help 
these phone companies resolve the tension between the Government's 
requests for assistance in foreign intelligence investigations and the 
companies' responsibilities to their customers.
  So this legal vacuum resulted in serious governmental abuse and 
overreaching. The abuses that took place are well documented and quite 
shocking. With the willing cooperation of the telephone companies, the 
FBI conducted surveillance of peaceful antiwar protesters, journalists, 
steel company executives, and even Martin Luther King, Jr.
  So Congress decided to take action. Based on the history of, and 
potential for, Government abuses, Congress decided that it was not 
appropriate--not appropriate--for telephone companies to simply assume 
that any Government request for assistance to conduct electronic 
surveillance was legal. Let me repeat that: A primary purpose of FISA 
was to make clear, once and for all, that the telephone companies 
should not blindly cooperate with Government requests for assistance.
  At the same time, however, Congress did not want to saddle telephone 
companies with the responsibility of determining whether the 
Government's request for assistance was a lawful one. That approach 
would leave the companies in a permanent state of legal uncertainty 
about their obligations.
  So Congress devised a system that would take the guesswork out of it 
completely. Under that system, which was in place in 2001, and is still 
in place today, the companies' legal obligations and liability depend 
entirely on whether the Government has presented the company with a 
court order or a certification stating that certain basic requirements 
have been met. If the proper documentation is submitted, the company 
must cooperate with the request and will be immune from liability. If 
the proper documentation has not been submitted, the company must 
refuse the Government's request, or be subject to possible liability in 
the courts.
  The telephone companies and the Government have been operating under 
this simple framework for 30 years. The companies have experienced, 
highly trained, and highly compensated lawyers who know this law inside 
and out.
  In view of this history, it is inconceivable that any telephone 
companies that allegedly cooperated with the administration's 
warrantless wiretapping program did not know what their obligations 
were. It is just as implausible that those companies believed they were 
entitled to simply assume the lawfulness of a Government request for 
assistance. This whole effort to obtain retroactive immunity is based 
on an assumption that doesn't hold water.
  That brings me to another issue. I have been discussing why 
retroactive immunity is unnecessary and unjustified, but it goes beyond 
that. Granting companies that allegedly cooperated with an illegal 
program this new form of automatic, retroactive immunity undermines the 
law that has been on the books for decades--a law that was designed to 
prevent exactly the type of actions that allegedly occurred here.
  Remember, telephone companies already have absolute immunity if they 
complied with the applicable law. They have an affirmative defense if 
they believed in good faith that they were complying with that law. So 
the retroactive immunity provision we are debating here is necessary 
only if we want to extend immunity to companies that did not comply 
with the applicable law and did not even have a good faith belief that 
they were complying with it. So much for the rule of law.
  Even worse, granting retroactive immunity under these circumstances 
will undermine any new laws that we pass regarding Government 
surveillance. If we want companies to follow the law in the future, it 
sends a terrible message, and sets a terrible precedent, to give them a 
``get out of jail free'' card for allegedly ignoring the law in the 
  I find it particularly troubling when some of my colleagues argue 
that we should grant immunity in order to encourage the telephone 
companies to cooperate with Government in the future. They want 
Americans to think that not granting immunity will damage our national 
security. But if you take a close look at the argument, it does not 
hold up. The telephone companies are already legally obligated to 
cooperate with a court order, and as I have mentioned, they already 
have absolute immunity for cooperating with requests that are properly 
certified. So the only thing we would be encouraging by granting 
immunity here is cooperation with requests that violate the law. That 
is exactly the kind of cooperation that FISA was supposed to prevent.
  Let's remember why. These companies have access to our most private 
conversations, and Americans depend on them to respect and defend the 
privacy of these communications unless there is clear legal authority 
for sharing them. They depend on us to make sure the companies are held 
accountable for betrayals of that public trust. Instead, this immunity 
provision would invite the telephone companies to betray that trust by 
encouraging cooperation with illegal Government programs.
  But this immunity provision does not just allow telephone companies 
off the hook for breaking the law. It also will make it that much 
harder to get to the core issue that I have been raising since December 
2005, which is that the President ran an illegal program and should be 
held accountable. When these lawsuits are dismissed, we will be that 
much further away from an independent judicial review of this program.
  Since 9/11, I have heard it said many times that what separates us 
from our enemies is respect for the rule of law. Unfortunately, the 
rule of law has taken it on the chin from this administration. Over and 
over, the President and his advisers have claimed the right to ignore 
the will of Congress and the laws on the books if and when they see 
fit. Now they are claiming the same right for any entity that assists 
them in that effort, no matter how unreasonable that assistance might 
have been.
  On top of all this, we are considering granting immunity when more 
than 70 members of the Senate still--still--have not been briefed on 
the President's wiretapping program. The majority of this body still 
does not even know what we are being asked to grant immunity for.
  In sum, I cannot support this legislation. I appreciate that changes 
were made to the Senate bill, but they are not enough. Nowhere near 
  We have other alternatives. We have options. We do not have to pass 
this law in the midst of a presidential election year, while George 
Bush remains President, in the worst possible political climate for 
constructive legislating in this area. If the concern is that orders 
issued under the PAA could expire as early as August, we could extend 
the PAA for another 6 months, 9 months, even a year. We could put a 1-
year sunset on this bill, rather than

[[Page S6112]]

having it sunset in the next Presidential election year when partisan 
politics will once again be at their worst. Or we could extend the 
effect of any current PAA orders for 6 months or a year. All of these 
options would address any immediate national security concerns.
  What we do not have to do and what we should not do is pass a law 
that will immunize illegal behavior and fundamentally alter our 
surveillance laws for years to come.
  I have spent a great deal of time over the past year--in the Senate 
Intelligence Committee, in the Senate Judiciary Committee, and on the 
Senate floor--discussing my concerns, offering amendments, and debating 
the possible effects of the fine print of various bills. But this is 
not simply about fine print. In the end, my opposition to this bill 
comes down to this: This bill is a tragic retreat from the principles 
that have governed Government conduct in this sensitive area for 30 
years. It needlessly sacrifices the protection of the privacy of 
innocent Americans, and it is an abdication of this body's duty to 
stand up for the rule of law. I will vote no.
  Mr. President, I yield the floor, and I suggest the absence of a 
  The PRESIDING OFFICER. The clerk will call the roll.


  Mr. LEAHY. Mr. President, we have an ongoing debate on the whole 
question of FISA, the Foreign Intelligence Surveillance Act. Since the 
beginning of this debate, I have opposed legislation that does not 
provide some kind of accountability for the 6 years of illegal 
warrantless wiretapping that was started and, in fact, approved by this 
  The bill that has been presented to the Senate, as it stands now, 
absent any amendments, seems intended to result in the dismissal of 
ongoing cases against the telecommunication carriers that participated 
in the warrantless wiretapping program. It would lead to the dismissal 
of the cases without allowing a court ever to review whether the 
program itself was legal.
  So the bill would have the effect of ensuring that this 
administration, the administration that decided to carry out the 
illegal wiretapping, is never called to answer for its actions, and 
never held accountable in a court of law. I cannot support that result.
  It is now almost 7 years since the President began an effort to 
circumvent the law in violation of the provisions of the governing 
statute, the Foreign Intelligence Surveillance Act.
  I have said I believe that the conduct was illegal. In running its 
program of warrantless surveillance, the administration relied on 
result-oriented legal opinions. These opinions were prepared in secret. 
They were shown only to a tiny group of like-minded officials. This 
ensured, of course, that the administration received not independent 
legal advice, but the legal advice that it had predetermined it wanted.
  A former head of the Justice Department's Office of Legal Counsel 
described this program as a ``legal mess.''

[[Page S6116]]

And this administration wants to make sure no court ever reviews this 
legal mess.
  The bill presented to the Senate seems designed to ensure that they 
are going to get their wish. The administration worked very hard to 
ensure that Congress could not effectively review the program or the 
basis for its arguments for immunity.
  Since the existence of the program became known through the press, 
the Judiciary Committee has repeatedly tried to obtain access to 
information its members needed so we could evaluate the 
administration's legal arguments, which are squarely under the 
jurisdiction of our committee.
  Indeed, Senator Specter, when he was the chairman of the Judiciary 
Committee, prepared subpoenas to telecommunication carriers to obtain 
this information. He wanted information from the telecommunications 
carriers because the administration would not tell us directly what it 
had done. But those subpoenas sought by a Republican chairman were 
never issued.
  As Senator Specter himself has explained publicly, Vice President 
Cheney intervened with other Republican members of the Judiciary 
Committee to undercut Senator Specter, and, of course, the Vice 
President then succeeded in blocking the subpoenas.
  It was only just before the Intelligence and Judiciary Committees' 
consideration of this bill that the Judiciary Committee members finally 
obtained access to some of the documents we had sought. I remind you, 
though, that most Members of this Chamber, most Senators called upon to 
vote, have not seen those documents. I have seen them, and I would hope 
that they would be made available to every Senator.
  The Senators who have seen them have drawn very different 
conclusions. But no matter what conclusion you reach, you ought to get 
access to the documents so that you can make an informed judgment.
  I will not discuss the documents that are still held in secret, but I 
will talk about the public reports. There are public reports that at 
least one telecommunications carrier refused to comply with the 
administration's request to cooperate with the warrantless wiretapping. 
All Senators should have had the opportunity to know those facts so 
they can make informed judgments whether there were legal claims that 
other carriers should have raised.
  It is also clear that the Bush-Cheney administration did not want the 
Senate to evaluate the evidence and be able to draw its own 
conclusions. They wanted to avoid accountability.
  Indeed, the Senate Select Committee on Intelligence, with all of the 
work it has done on this issue, has not conducted a review of the 
legality of the warrantless wiretapping program.
  Now, I am not here to try to get the telephone companies. According 
to public reports, at least one company said no, presumably because it 
feared that by complying it would break the law. Other phone companies, 
according to the public statements, apparently believed they were doing 
what was best for their country. I am not out to get them.
  In fact, I would have supported legislation to have the Government 
indemnify the telecommunications carriers for any liability incurred at 
the behest of the Government. As I said, it is not a case of going 
after the phone companies; I want accountability.
  I supported alternative efforts by Senator Specter and Senator 
Whitehouse to substitute the Government for the defendants in these 
cases. In other words, take the phone companies out and substitute the 
Government so the cases can proceed to a determination on the merits.
  These alternatives would have allowed judicial review of the legality 
of the administration's acts--I think it is clear that the 
administration's actions were illegal--then let a court determine who 
was responsible for those actions.

  This bill does not provide that accountability. As I read the 
language of the bill, it is designed to have the courts dismiss the 
pending cases if the Attorney General simply certifies to the court 
that the alleged activity was the subject of a written request from the 
Attorney General, and that request indicated the activity was 
authorized by the President and determined to be lawful.
  In other words, if the Attorney General said: Well, I do not care 
what the law says, I have determined that the President does not have 
to follow the law. If the Attorney General says, in effect, 
notwithstanding the rule of law in this country, this President is 
above the law, so, therefore, nothing he does is illegal. These kinds 
of baseless legal conclusions could form the basis for immunity under 
this scheme.
  That is really what this bill provides. That concerns me, as it 
should concern everybody. We should not be dismissing Americans' claims 
that their fundamental rights were violated based on the mere assertion 
of a party in interest that what it did was lawful.
  Think about it: this would be like a police officer catching someone 
committing a burglary and saying: I am going to arrest you for 
burglary. And the burglar sitting there with a bag of burglary tools, 
having broken in the door, saying: You cannot do that because I thought 
about this breaking and entering. I decided that in my case it is not 
illegal. And then the police officer has to say: Gee, I am sorry for 
the inconvenience, sir, go on your merry way.
  That is what we are saying. Or actually, it is even worse than that. 
It is as if they actually arrested that burglar, they brought him into 
court, and the burglar stands up and says: Your Honor, I determined all 
by myself--disregarding you, Your Honor; disregarding the evidence, I 
determined all by myself--that even though I was involved in a 
burglary, I should not even be subject to the court's jurisdiction 
because I say that what I did was legal. Goodbye, Your Honor. Have a 
nice day. I am leaving.
  That is what we are doing with this bill. In fact, there is not even 
a determination by the current Attorney General that the wireless 
wiretapping program was lawful, perhaps because he could not make such 
a determination. But all he has to do to ensure immunity is to certify 
that the phone company acted at the behest of the administration and 
that the administration indicated that the activity was determined to 
be lawful.
  Regardless of whether or not it actually was lawful, all the Attorney 
General has to say is that it was determined to be lawful. We are not 
going to tell you when that determination was made. We are not even 
going to tell you whether the people who made that determination went 
to law school. It is lawful because the President is above the law; 
therefore, we are off the hook.
  I believe the rule of law is important. I do not believe any one of 
us, the 100 of us in this body, is above the law. I have been here with 
six Presidents. I do not believe any one of them, Republican or 
Democratic Presidents, is above the law. I do not believe Congress 
should try to put a President above the law and seek to take away the 
only viable avenue for Americans to seek redress for harm to their 
privacy and liberty, and the only viable avenue of accountability for 
the administration's lawlessness.
  Why should we, the United States Senate, the conscience of the 
Nation, why should we sit here and say: We are going to condone 
lawlessness, and even more importantly, we 100 people, acting on behalf 
of 300 million other Americans, are saying: We are never even going to 
let you know who committed the unlawful acts and why.
  Now, I recognize this legislation also contains important 
surveillance authority. I support this new authority. I worked for 
years to craft legislation that provides that important authority along 
with appropriate protections for privacy and civil liberties. I have 
voted for dozens of changes in the FISA legislation to be able to help 
our intelligence agencies.
  In fact, the Senate Judiciary Committee, under my leadership, 
reported such a bill last fall. So I commend House Majority Leader 
Hoyer and Senator Rockefeller, who negotiated this legislation, for 
incorporating several additional protections to bring it closer to the 
bill we voted out of the Judiciary Committee.
  I note, in particular, the requirement of an inspector general review 
of this administration's warrantless wiretapping program. It is a 
provision I have advocated at every single meeting we have had, open or 
closed, through the course of the consideration of these matters. This 
review will provide for a

[[Page S6117]]

comprehensive examination of the relevant facts about this program.
  Actually, it should prove useful to the next President. I believe we 
should have still more protections for privacy and civil liberties. If 
this bill becomes law I will work with the next administration on 
additional protections. Despite some improvements to the surveillance 
authorities the bill authorizes, improvements I support, I will not 
support this legislation. The administration broke the law. They 
violated FISA by conducting warrantless surveillance for more than 5 
years, and they got caught. Now they want us to cover their actions. 
They want us to say: That's OK. Even though we don't know which one of 
you decided to break the law, we are going to let you all off the hook. 
The apparent purpose of title II of this bill is to ensure that they 
will not be held to account. That is wrong. I will, therefore, oppose 
cloture on the motion to proceed to the measure. If the Senate proceeds 
to the bill, I will then support amendments to its unaccountability 
provisions, including an amendment to strike the immunity provisions. 
But if those are not successful, I will have to vote against it.
  The bottom line is this: In America, nobody should be above the law. 
One thing unites every single Senator. We want to keep our great and 
good country safe. We all want to stop terrorists. We have spent 
hundreds of billions of dollars to do that. We have procedures to do 
that. But one of the principles of this country and something we have 
always preached to other countries is, that in good times and bad 
times, we follow the law. We did this during two world wars, in the 
Revolutionary War and in the Civil War.
  I am imploring the Senate not to turn its back on over 200 years of 
history of following the law and saying, in this situation, we are 
going to condone an administration that broke the law. I cannot vote 
for that. I cannot in good conscience vote for that. I cannot be true 
to my own oath of office and vote for that. Certainly, I would not want 
to tell the people of Vermont I voted for that.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Missouri is 
  Mr. BOND. Mr. President, I ask unanimous consent that after my 
remarks, the Senator from California, Mrs. Feinstein, be recognized, 
and that she be followed by the Senator from Georgia, Mr. Chambliss.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
  Mr. BOND. Mr. President, while my good friend from Vermont was on the 
floor, I thought he raised some good questions. I believe we have good 
answers for those questions. I know of his dedication and commitment to 
the rule of law and accountability, his very distinguished service as 
head of the Judiciary Committee. But there are several things I would 
point out.
  No. 1, we have been working on this entire issue of the President's 
terrorist surveillance program for better than a year now. We have 
reviewed all of the documents. We have had all of the people who 
administered the program, who have given opinions on it, come in. I 
dispute his statement that there were 6 years of unlawful activity of 
the President. He said no court will be able to review the illegality; 
no independent officials have reviewed it.
  First, it is my understanding, although I was not one of them, that 
the big eight at the time--that is, the Republican and Democratic 
leaders of the House and the Senate and the leaders of their 
Intelligence Committees--were briefed on this program before it 
started. I don't know the substance of the briefing. I would imagine 
that they told them the problems in the existing old FISA law would 
make it difficult to implement that law, given the new technology 
which, in fact, was the case. In any event, it went forward.
  When the program was finally disclosed and briefed to the 
Intelligence Committee, I spent a good bit of time reviewing that. I 
have studied constitutional law and made constitutional law arguments 
before. I believe if my friends who have questions about it will check 
the Constitution and the appellate court's interpretation of article 
II, they will find that they assume the President does have power to 
collect foreign intelligence information as an adjunct to his 
responsibility to conduct foreign affairs.
  There is no question that Congress cannot pass a law abrogating that 
constitutional right. As a matter of fact, in one of the released 
cases, one of the cases made public by the Foreign Intelligence 
Surveillance Court, or FISC, they noted that Congress could not 
abrogate that constitutional right. It would be unconstitutional. For 
those who raise the test of the steel cases, I don't necessarily accept 
that test, that the enactments of Congress can affect the measure of 
credibility and extent of the President's power. The Congress did pass 
the authorization for the use of military force prior to the imposition 
of the terrorist surveillance program. We had access to the documents. 
Based on review of the documents, the Senate Intelligence Committee, by 
a vote of 13 to 2, passed out the bill which is the essential framework 
that is before us.
  The courts can review to see that there are certifications by the 
Attorney General, directives by the President, and only if they find no 
substantial evidence to support that, then the suits will be dismissed.
  My friend from Vermont said we ought to substitute the Government for 
the phone company for judicial review. There is another provision in 
the bill he should understand. If you want to sue the Government, there 
is no ban in this bill on suing the Government or suing Government 
officials. That can go forward. That is not affected by this bill. 
There has been extensive discussion over the legality of it. For those 
who wish to have a trial on the legality of the program, there are 
other means still available. To penalize a phone company or other 
carrier which, in good faith reliance on a representation of the 
Attorney General and the President of the United States, carried out a 
program that I believe is lawful to protect American citizens, I think 
is totally unwarranted.
  Let me describe today for my colleagues and for those who may be 
interested this long and difficult process which I believe has finally 
accomplished its goal. This week we have a chance to tell the American 
people that the intelligence community on which our citizens, our 
troops, and our allies rely to keep us safe from terrorists and other 
forms of evil in the world can continue to do its job. We can tell 
those companies that answered their Government's call for help in the 
aftermath of the September 11 terrorist attacks that a grateful nation 
stands behind them and that they will be given the civil liability 
protection they rightly deserve.
  I strongly support voting for cloture on the motion to proceed to 
H.R. 6304, the FISA Amendments Act, this afternoon. I strongly 
encourage my colleagues not only to do the same but also to oppose any 
amendments offered to it. We have finally struck a deal with the House, 
and the House honored the deal last Friday by allowing no amendments on 
the House floor. I ask my colleagues to hold up our end of the bargain. 
While it is in every Senator's right to offer an amendment, I urge my 
colleagues to vote down all amendments no matter what they may be so 
that we may send the bill immediately to the President for signature 
and make sure we don't have further gaps in our intelligence 
system which could appear once again if we do not pass this in a timely 
fashion. If we send it back to the House, there is no telling when a 
final bill could be back here for passage.

  Let me describe briefly how we got here. Approximately a year ago, 
Director of National Intelligence ADM Mike McConnell came to Congress 
and asked that we update the Foreign Intelligence Surveillance Act. 
Changes in technology resulted in court rulings or interpretations that 
made it very difficult to use electronic surveillance effectively 
against terrorist enemies overseas. The problem came to a head in May 
2007, with a ruling that caused significant gaps in collection. 
Although the DNI at the time pleaded to Congress to help, the 
leadership of Congress did not move.
  In the looming pressure of the August recess, the Republican leader, 
Senator McConnell, and I cosponsored the Protect America Act which 
Congress passed the first week of August last year. The act did exactly 
what it

[[Page S6118]]

was intended to. It closed the intelligence gaps that threatened the 
security of our Nation and of our troops. But it was lacking in one 
important aspect, as we were not able to include in it the retroactive 
civil liability protection from ongoing frivolous lawsuits against 
those partners who had assisted the intelligence community in the 
President's program.
  Following the passage of the Protect America Act, I am proud to say 
that Senator Rockefeller and I worked on a bipartisan basis to come up 
with a permanent solution to modernize FISA and give those private 
partners the needed retroactive liability protection. We worked closely 
for months with the DNI, Department of Justice, and their experts from 
the intelligence community to ensure there would be no unintended 
operational consequences from any of the provisions included in our 
bipartisan product. In February of this year, after many hearings, 
briefings, and a lot of debate on the Senate floor, the Senate passed 
the FISA amendments by a strong bipartisan vote of 68 to 29.
  The bill coming out of the Senate reflected the Intelligence 
Committee's conclusion that the electronic communication service 
providers who assisted the President's TSP acted in good faith and 
deserved civil liability protection from frivolous lawsuits. The Senate 
bill also went farther than any legislation in history in protecting 
the privacy interests of American citizens or U.S. persons whose 
communications might be acquired through targeting overseas. It also 
required the FISA approval to target U.S. persons overseas, if they are 
going to have collection initiated against them.
  At the end of the day, there were many difficult compromises. Both 
sides gave, and we came up with a bill that was not only bipartisan but 
the best piece of effort we could get out of this legislative process.
  Although the Senate passed the bill before the Protect America Act 
expired, in the House there was a clear majority. But the leadership 
didn't let it come up. They went on recess. In the days following the 
expiration, private partners refused to provide intelligence 
information, frankly, in light of the ongoing litigation, the 
tremendous threat to their business franchise, the fact that they and, 
particularly their shareholders, who may be retired persons depending 
on pensions and others, could be losing billions of dollars in the 
marketplace because of the size of these outrageous lawsuits seeking 
billions of dollars, when, in my view, there was no damage and no 
grounds for recovery. Fortunately, after several days' negotiation, the 
intelligence community was able to get the providers to resume 
cooperation, but the intelligence lost in that time was gone, and we 
will never know what we missed because the House leadership refused to 
bring up the Senate bill.
  Some have accused me and my colleagues of saying at the time, 
falsely, that the sky was falling. For a few days the sky was falling 
until a tenuous agreement was worked out between the executive branch 
and the providers. But the agreement was all predicated upon ongoing 
work to pass a FISA modernization law in the near term. That is another 
reason why it is vital the Senate move immediately to consider the FISA 
Amendments Act. Once the House returned from the Easter recess, my good 
friend and fellow Missourian, majority whip Roy Blunt, and I met with 
the House majority leader, Steny Hoyer, asking him what he thought the 
House needed in order to allow the Senate bill a vote on the House 
floor. We and our staffs began discussions and sent proposals back and 
forth attempting to come together. During that time, Roy Blunt and I 
conferred repeatedly with Congressmen Hoekstra and Smith and, of 
course, vetted our proposals with the intelligence community.
  Finally, after four personal meetings over 2 months--and a tremendous 
amount of staff work--between Majority Leader Hoyer, Minority Whip 
Blunt, and me--Whip Blunt and I delivered a proposal to Mr. Hoyer 
before Memorial Day, a deadline he had set.
  This agreement was one that had been signed off on and fully 
discussed with Mr. Hoekstra, the vice chairman of the House 
Intelligence Committee, and Lamar Smith, the ranking member of the 
Judiciary Committee. We felt this was the best offer we could make on 
behalf of the Republicans in the House and Senate, and it was agreed to 
by the intelligence community.
  The Memorial Day deadline, however, came and went, and again the 
House went on recess. Finally, after more interaction among our staffs, 
I received word 2 weeks ago that the House Democrats were ready to work 
out final language. So Leader Hoyer and Whip Blunt and I met for a 
fifth time, this time inviting my colleague, Jay Rockefeller, to join 
us in the final negotiations. On June 12, the Democratic House leaders 
gave up their idea of having a commission take a look at the 
surveillance program, which we believe would have been political, 
further interfering with the work of the Intelligence Committee and 
perhaps community, and perhaps lead to increased leaks about the 
  They agreed on a longer sunset than in previous bills. We abandoned 
the idea that the FISA Court should be the one to assess compliance 
with the minimization procedures used in foreign targeting. With the 
concessions Republicans and the administration had already made, along 
with some minor technical fixes, I am proud to say the intelligence 
community was given the flexibility and tools it needs to keep us safe. 
We had a compromise.
  Now, I offer all that as background so the record is clear. That 
brings us where we are today. Once we get on the bill, I will explain 
what is before us, and I will explain how statements from some about 
this legislation is nothing short of fear mongering, such as from those 
who are saying all Americans who talk to anyone overseas will be 
listened to by the Government. That is flat wrong.
  Americans cannot be targeted without a court order, period. If 
someone overseas is targeted and talks to an American, then the 
American's end of the communication is what we call minimized, which 
means it is hidden, protected, suppressed. I will elaborate further on 
this. But at this time, I simply ask my colleagues to vote for cloture 
so we may move immediately to the bill.
  I note some of my colleagues from the Senate Intelligence Committee 
are seeking recognition, and I appreciate the work all members of the 
committee have done. I see my colleague from Georgia, who has been an 
outstanding help, and the Senator from California, who has offered many 
useful ideas. This has been truly a year's long work, and we are happy 
to bring the final process before the Senate today.
  I thank the Chair and yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from California is 
  Mrs. FEINSTEIN. Mr. President, it is my understanding I am next in 
the order. I ask unanimous consent that following my presentation the 
Senator from Vermont be recognized on our side. I know Senator 
Chambliss is here on the Republican side and wishes to speak.
  Mr. CHAMBLISS. Mr. President, reserving the right to object, can we 
propose a unanimous consent request that following Senator Feinstein, I 
be recognized to speak, and then Senator Sanders will be next?
  The ACTING PRESIDENT pro tempore. I believe that was the Senator's 
  Mrs. FEINSTEIN. That was the intent.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
  Mrs. FEINSTEIN. Thank you very much, Mr. President.
  Mr. President, I begin my remarks by thanking the chairman of the 
Intelligence Committee, Senator Rockefeller, and the vice chairman of 
the Intelligence Committee, Senator Bond, the House Speaker, and the 
House leadership for their distinguished work on this piece of 
legislation. This has not been easy. It is certainly not without 
controversy. There are some major challenges to work through.
  I want to begin by putting my remarks, at least, in context.
  There is no more important requirement for national security than 
obtaining accurate, actionable intelligence. At the same time, there 
have to be strong safeguards in place to ensure that the Government 
does not infringe on Americans' constitutional rights.
  Yet if Congress does not act and pass this bill, as it was passed 
overwhelmingly in the House, both of these goals,

[[Page S6119]]

I believe, are in jeopardy. Here is why. If this bill does not pass, 
our Nation would likely be forced to either extend the Protect America 
Act or leave the Nation bare until a new bill can be written. Neither 
of these are good options.
  As I will describe, the Protect America Act does not adequately 
protect Americans' constitutional rights. It was written to be a 
temporary measure for 6 months, and it expired on February 5.
  What many people do not understand is that surveillance conducted 
under the Protect America Act will cease by the middle of August. It 
will be impossible to write a new bill, to get it past both Houses, to 
have it signed by the President in time to meet this deadline.
  If that bill expires without this Congress passing new legislation, 
we will be unable to conduct electronic surveillance on a large number 
of foreign targets. In other words, our intelligence apparatus will be 
laid bare and the Nation will go into greater jeopardy. I truly believe 
  The FISA legislation of 1978 cannot accommodate this number of 
targets. It is simply inadequate for this new task due to changes in 
technology and the communications industry. That is precisely why FISA 
needs to be modernized.
  So taking no action means we will be opening ourselves, in my view, 
to the possibility of major attack. This is unacceptable.
  So as I see it, our choice is a clear one: We either pass this 
legislation or we extend the Protect America Act. For me, this 
legislation is much the better option.
  This bill, in some respects, improves even on the base bill, the 1978 
Foreign Intelligence Surveillance Act. It provides clear protections 
for U.S. persons both at home and abroad. It ensures that the 
Government cannot conduct electronic surveillance on an American 
anywhere in the world without a warrant. No legislation has done that 
up to this point.
  I think the improvements in this bill over the Protect America Act 
and the 1978 legislation are important to understand, and I wish to 
list a few.
  First, prior court review. This bill ensures that there will be no 
more warrantless surveillance. Now, why do I say this? Under the 
Protect America Act--which is expiring, but we are still collecting 
surveillance under it for now--the intelligence community was 
authorized to conduct electronic surveillance for a period of 4 months 
before submitting an application for a warrant to the FISA Court. 
Surveillance could actually proceed for 6 months before there was a 
  Under this bill, the Government must submit an application and 
receive a warrant from the FISA Court before surveillance begins. No 
more warrantless surveillance. This is, in fact, a major point.
  In emergency cases, there can be a short period of collection--up to 
7 days--as the application is prepared. There has been a provision for 
emergency cases under FISA for some 30 years now. So that is prior 
court review for a U.S. person anywhere in the world if content is 
  Meaningful court review. This bill strengthens court review. Under 
the Protect America Act, the Government submitted to the FISA Court its 
determination that procedures were in place to ensure that only people 
outside the United States would be targeted. The court could only 
reject an application for a warrant if it found that determination to 
be ``clearly erroneous.'' This bill returns to the traditional FISA 
standard, empowering the court to decide whether the Government's 
determination is ``reasonable.'' This is a higher standard of review, 
so the court review under this bill is meaningful.

  Next, minimization. These first two improvements ensure that the 
Government will only be targeting people outside the country. That is 
good, but it is not enough. There is always the possibility of someone 
outside the country talking to a U.S. person inside the country. The 
bill addresses this with a process known as minimization.
  In 1978, Congress said that the Government could do surveillance on 
U.S. persons under a court warrant, but required the Government to 
minimize the amount of information on those Americans who get included 
in the intelligence reporting. In practice, this actually means that 
the National Security Agency only includes information about a U.S. 
person that is strictly necessary to convey the intelligence. Most of 
the time, the person's name is not included in the report. That is the 
minimization process.
  If an American's communication is incidentally caught up in 
electronic surveillance while the Government is targeting someone else, 
minimization protects that person's private information.
  Now, the Protect America Act did not provide for court review over 
this minimization process at all. But this bill requires the court in 
advance to approve the Government's minimization procedures prior to 
commencing with any minimization program. That is good. That is the 
third improvement.
  Fourth, reverse targeting. There is an explicit ban on reverse 
targeting. Now, what is reverse targeting? That is the concern that the 
National Security Agency could get around the warrant requirement. If 
the NSA wanted to get my communications but did not want to go to the 
FISA Court, they might try to figure out who I am talking with and 
collect the content of their calls to get to me. This bill says you 
cannot do that. You cannot reverse target. It is prohibited. This was a 
concern with the Protect America Act, and it is fixed in this bill.
  Those are four reasons--good reasons. Here is a fifth: U.S. person 
privacy outside the United States. This bill does more than Congress 
has ever done before to protect Americans' privacy regardless of where 
they are, anywhere in the world. Under this bill, the executive branch 
will be required to obtain a warrant any time it seeks to direct 
surveillance at a U.S. person anywhere in the world. So any U.S. person 
anywhere in the world is protected by the requirement that a warrant 
must be received from the Foreign Intelligence Surveillance Court 
before electronic surveillance can begin.
  Previously, FISA only covered people inside the United States. The 
Protect America Act did the same thing.
  Now, also under this bill, there will be reviews of surveillance 
authorities by the Director of National Intelligence, the Attorney 
General, the heads of all relevant agencies, and the inspectors general 
of all relevant agencies on a regular basis, and the FISA Court and the 
Congress will receive the results of those reviews.
  So there will be regular reporting from the professionals in the 
arena on how this bill is being followed through on--how electronic 
surveillance is being carried out worldwide. The Intelligence and 
Judiciary Committees will receive those reports. That, too, is 
  Also, under this bill, there will be a retrospective review of the 
President's Terrorist Surveillance Program. That is the program that 
has stirred the furor. The bill requires an unclassified report on the 
facts of the program, including its limits, the legal justifications, 
and the role played by the FISA Court and any private actors involved. 
This will provide needed accountability.
  In summary, all intelligence collection under the Terrorist 
Surveillance Program will be brought under court review and court 
  Everything I have described brings this administration back under the 
law. There is no more Terrorist Surveillance Program. There is only 
court-approved, Congressionally reviewed collection.
  But what is to keep this administration or any other administration 
from going around the law again? The answer is one word, and it is 
called exclusivity.
  It means that the Foreign Intelligence Surveillance Act is the only, 
the exclusive, means for conducting electronic surveillance inside the 
United States for foreign intelligence purposes.
  The exclusivity language in this bill is identical in substance to 
the amendment I offered in February, which received 57 votes in this 
Senate. It is section 102 of this bill.
  This language reiterates what FISA said in 1978, and it goes further. 
Here is what this bill says:
  Never again will a President be able to say that his authority--or 
her authority, one day, I hope--as Commander in Chief can be used to 
violate a law duly enacted by Congress.

[[Page S6120]]

  Never again can an Executive say that a law passed to do one thing--
such as use military force against our enemies--also overrides a ban on 
warrantless surveillance. The administration has said that the 
resolution to authorize the use of military force gave this President 
the right to go around FISA.
  Never again can the Government go to private companies for their 
assistance in conducting surveillance that violates the law.
  Now, this administration has a very broad view of Executive 
authority. Quite simply, it believes that when it comes to these 
matters, the President is above the law. I reject that notion in the 
strongest terms.
  I think it is important to review the recent history with this 
administration to demonstrate why FISA exclusivity is so important.
  At the very beginning of the Terrorist Surveillance Program, John 
Yoo, at the Office of Legal Counsel, wrote in a legal opinion that:

      . . . [u]nless Congress made a clear statement in the 
     Foreign Intelligence Surveillance Act that it sought to 
     restrict presidential authority to conduct warrantless 
     searches in the national security area--which it has not--
     then the statute must be construed to avoid [such] a reading.

  That was the argument. I believe it is wrong. Congress wrote FISA in 
1978 precisely in the field of national security; there are other, 
separate laws that govern wiretapping in the criminal context. In fact, 
the Department of Justice has repudiated Yoo's notion.
  But if the Department admitted that FISA did apply, it found another 
excuse not to take the Terrorist Surveillance Program to the FISA 
  The Department of Justice developed a new, convoluted argument that 
Congress had authorized the President to go around FISA by passing the 
authorization to use military force against al-Qaida and the Taliban.
  This is as flimsy as the last argument.
  There is nothing in the AUMF that talks about electronic surveillance 
or FISA, and I know of not one Member who believed we were suspending 
FISA when we authorized the President to go to war.
  But that is another argument we lay to rest with this bill. Here is 
how we do it. We say in the language in this bill that FISA is 
exclusive. Now, here is the major part: Only a specific statutory grant 
of authority in future legislation can provide authority to the Chief 
Executive to conduct surveillance without a FISA warrant.
  So we go a step further in exclusivity. We cover what Yoo was trying 
to argue and what others might argue on behalf of a Chief Executive in 
the future, by closing the loophole and saying: You need specific 
statutory authority by the Congress of the United States to go outside 
the law and the Constitution.
  The final argument the President has made is that even if FISA was 
intended to apply, and even if the AUMF didn't override FISA's 
procedures, he still had the authority as Commander in Chief to 
disregard the law.
  Now, I have spoken on the floor before about how the President 
believes he is above the law and the Youngstown Sheet and Tube Company 
v. Sawyer case. In that case, Justice Jackson described how the 
President's power is at the ``lowest ebb'' when he is acting in 
contravention to the will of the Congress.
  This bill, again, makes it clear that the will of Congress is that 
there will be no electronic surveillance inside the United States 
without a warrant, and it makes clear that any electronic surveillance 
that is conducted outside of FISA or outside of another express 
statutory authorization for surveillance is a criminal act. It is 
criminalized. This is the strongest statement of exclusivity in 
  The reason I am describing all this is to build a case of legislative 
intent in case this is ever litigated, and I suspect it may well be.
  So, finally, I wish to read into the Record the comments on 
exclusivity from a June 19, 2008, letter that Attorney General Mukasey 
and Director of National Intelligence McConnell wrote to the Congress. 
The letter recognizes that the exclusivity provision in this bill 
``goes beyond the exclusive means provision that was passed as part of 
FISA [in 1978].''
  So they essentially admit we are taking exclusivity to a new high. 
Nevertheless, they acknowledge that the provision in this bill ``would 
not restrict the authority of the government to conduct necessary 
surveillance for intelligence and law enforcement purposes in a way 
that would harm national security.''
  I said in February I could not support a bill without exclusivity. 
This is what keeps history from repeating itself and another President 
from going outside the law. I believe that with this language we will 
prevent it from ever happening again.
  Now, a comment on title II of the bill, which is the telecom immunity 
section. This bill also creates a legal process that may--and, in fact, 
is likely to--result in immunity for telecommunications companies that 
are alleged to have provided assistance to the Government.
  I have spent a great deal of time reviewing this matter. I have read 
the legal opinions written by the Office of Legal Counsel at the 
Department of Justice. I have read the written requests to 
telecommunications companies. I have spoken to officials inside and 
outside the Government, including several meetings with the companies 
alleged to have participated in the program.
  The companies were told after 9/11 that their assistance was needed 
to protect against further terrorist acts. This actually happened 
within weeks of 9/11. I think we can all understand and remember what 
the situation was in the 3 weeks following 9/11.
  The companies were told the surveillance program was authorized and 
that it was legal, and they were prevented from doing their due 
diligence in reviewing the Government's request. In fact, very few 
people in these companies--these big telecoms--are actually cleared to 
receive this information and discuss it. So that creates a very limited 
universe of people who can do their due diligence within the confines 
of a given telecommunications company.

  For the record, let me also address what I have heard some of my 
colleagues say. At the beginning of the Terrorist Surveillance Program, 
only four Senators were briefed. The Intelligence Committee was not, 
other than the Chairman and Vice Chairman.
  I am one who believes it is right for the public and the private 
sector to support the Government at a time of need. When it is a matter 
of national security, it is all the more important.
  I think the lion's share of the fault rests with the administration, 
not with the companies.
  It was the administration who refused to go to the FISA Court to seek 
warrants. They could have gone to the FISA Court to seek these warrants 
on a program basis, and they have done so subsequently.
  It was the administration who withheld this surveillance program from 
the vast majority of Members of Congress, and it was the administration 
who developed the legal theories to explain why it could, in fact, go 
around the law.
  So I am pleased this bill includes independent reviews of the 
administration's actions to be conducted by the inspectors general of 
the relevant departments.
  All of that said, when the legislation was before the Senate in 
February, I stated my belief that immunity should only be provided if 
the defendant companies acted legally, or if they acted in good faith 
with a reasonable belief that their actions were legal. That is what 
the law calls for.
  I moved an amendment to require the court to review the written 
requests to companies to see whether they met the terms of the law. 
That law requires that a specific person send a certification in 
writing to a telecommunications company. That certification is required 
to state that no court order is required for the surveillance, that all 
statutory requirements have been met, and that the assistance is 
required by the Government.
  Unfortunately, my amendment was not adopted, but I continue to 
believe it is the appropriate standard.
  Now, the pending legislation does not assess whether the request made 
by the Government was, in fact, legal, nor whether the companies had a 
good-faith and objective belief that the requests were legal. What this 
bill does provide is a limited measure of court

[[Page S6121]]

review. It is not as robust as my amendment would have provided, but it 
does provide an opportunity for the plaintiffs to be heard in court, 
and it provides an opportunity for the court to review these request 
  I believe the court should not grant immunity without looking into 
the legality of the companies' actions. So if there is an amendment 
that does support this, I would intend to vote for it.
  But I believe the Record should be clear in noting that if this bill 
does become law, in my view, it does not mean the Congress has passed 
judgment on whether any companies' actions were or were not legal. 
Rather, it should be interpreted as Congress recognizing the 
circumstances under which the companies were acting and the reality 
that we desperately need the voluntary assistance of the private sector 
to keep the Nation secure in the future.
  I believe this bill balances security and privacy without sacrificing 
either. It is certainly better than the Protect America Act in that 
regard, and makes improvements over the 1978 FISA law.
  As I said, if a new bill is not in place by mid-August, the Nation 
will be laid bare and unable to collect intelligence.
  This bill provides for meaningful and repeated court review of 
surveillance done for intelligence purposes. It ends, once and for all, 
the practice of warrantless surveillance, and it protects Americans' 
constitutional rights both at home and abroad. It provides the 
Government with the flexibility it needs under the law to protect our 
Nation. It makes it crystal clear that this is the law of the land and 
that this law must be obeyed.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Webb). The Senator from Georgia is 
  Mr. CHAMBLISS. Mr. President, I ask unanimous consent that the 
unanimous consent agreement be amended, and that following my comments, 
Senator Sanders be recognized, and that following Senator Sanders, 
Senator Hatch be recognized.
  The PRESIDING OFFICER. Is there an objection?
  Without objection, it is so ordered.
  Mr. CHAMBLISS. Mr. President, I wish to speak about H.R. 6304, the 
Foreign Intelligence Surveillance Act Amendments Act.
  Before I do that, I wish to make a couple comments relative to the 
comments made by my colleague from California regarding the TSP or 
terrorist surveillance program implemented by the President within days 
after September 11, and make sure Americans are very clear about two 
points: First of all, Congress did know about this program. Members of 
Congress were briefed throughout the duration of this program. Members 
of Congress were briefed on a regular basis. That doesn't mean every 
Member of Congress but the leadership knew exactly what was going on, 
exactly what the President was doing. They were kept very informed.
  Secondly, the targets of the terrorist surveillance program were not 
Americans; the program targeted the communications of al-Qaida, that we 
knew--not guessed but that the intelligence community knew were used by 
al-Qaida. Today, al-Qaida gets up every morning, just as they did 
before and after September 11, and they think of ways to kill and harm 
Americans. Our intelligence community, without getting into the details 
of it, suffice it to say, has done a magnanimous job since then in 
protecting Americans.
  The fact that we have not suffered another attack on domestic soil 
since then indicates the terrific job that members of the intelligence 
community have done. The terrorist surveillance program that was 
implemented by the administration immediately after September 11 is a 
major factor in why we have not suffered another act of terrorism on 
domestic soil. Information gathered from the terrorist surveillance 
program was used rightly to disrupt terrorist activity, both 
domestically as well as abroad. Some of the instances where the 
terrorist surveillance program has stopped attacks and saved lives are 
very public right now.
  Again, I rise to comment on H.R. 6304. This critical legislation has 
been the subject of many negotiations and, although the legislation is 
not perfect, I am pleased with the bipartisan nature of this compromise 
bill. I commend Vice Chairman Bond, Congressman Hoyer, and Congressman 
Blunt on their work.
  I am satisfied that this legislation will provide our intelligence 
agencies with the legal tools necessary to perform their jobs, the 
flexibility they require, and the capability to protect Americans' 
civil liberties. However, I am perplexed it has taken Congress this 
long to adopt meaningful legislation necessary to protect our country; 
legislation which Congress knew, at least since last August, needed to 
be enacted expeditiously. Normally, Congress is accused of being guided 
by expediency rather than principle but not usually in national 
security matters. Intelligence is bipartisan. Securing our Nation is 
bipartisan. It is in every American's interest that Congress act 
quickly to protect our Nation from terrorist attack, espionage, or any 
other harm. Yet the bill before us now is substantially the same as S. 
2248, which was drafted in a bipartisan nature by Senators Rockefeller 
and Bond and passed the Senate over 4 months ago, on February 12, 2008, 
with a supermajority vote of 68 in favor and only 29 in opposition.
  Last summer, our intelligence community officials informed us that, 
as a result of a decision by the FISA Court and changes in technology, 
they had lost the ability to collect intelligence on terrorists around 
the world who wish to harm the United States. Congress responded to 
these pleas from our intelligence community and passed the Protect 
America Act, which temporarily fixed this problem, but we knew then we 
had to have a more permanent solution. Despite this knowledge and 
despite the hard work of the Senate Intelligence Committee for the 
previous 10 months, Congress failed to fix FISA in February. The House 
leadership refused to consider the Senate-passed bill, despite stated 
support from a majority of that body's members. I can only surmise that 
there were political, rather than substantive, reasons that prevented 
this legislation from passing months ago. Some may say this is the 
nature of one of the political branches of Government. What no one 
talks about is the harm this has caused.
  But, as a result of the Protect America Act's expiration, our 
collection efforts have been degraded. The public likely is not aware, 
nor may be many Members of this Chamber, but the members on the Senate 
Select Committee on Intelligence have heard regularly about the 
disruptions and legal obstacles that have occurred as a result of our 
inaction. The week after the Protect America Act expired, the Director 
of National Intelligence told us that ``we have lost intelligence 
information this past week as a direct result of the uncertainty 
created by Congress' failure to act.'' Gaps in our intelligence 
collection began to resurface, and it has had a real and negative 
impact on our national security.
  Our intelligence collection relies on the assistance of U.S. 
telecommunications carriers. These communication providers are facing 
multimillion dollar lawsuits for their alleged assistance to the 
Government after September 11, 2001. After the expiration of the 
Protect America Act, many providers began to delay or refuse further 
assistance. Losing the cooperation of just one provider could mean 
losing thousands of pieces of intelligence on a daily basis. According 
to the Director of National Intelligence, uncertainty about potential 
liability caused many carriers to question whether they could continue 
to provide assistance after the expiration of the Protect America Act.
  In just 1 week after its expiration, we lost significant amounts of 
intelligence forever. We will never be able to recover those lost 
communications, nor will we ever know what we missed.
  For this reason, it is crucial that any FISA legislation include 
retrospective, as well as prospective, immunity for telecommunications 
providers who assist the Government in securing our national security. 
Title II of this bill, just as title II of S. 2248, provides the 
minimum protections needed for our electronic service providers. In a 
civil suit against a communications provider, the Government may submit 
a certification that any assistance provided was pursuant to a 
Presidential authorization and at the time determined to be lawful. The 
district courts may review this certification, and if it finds that it 
is supported by substantial evidence, the court must dismiss

[[Page S6122]]

the case. This is not a commentary on, or a court sanction of, the 
President's alleged terrorist surveillance program. It is the right 
thing to do.
  Unlike many countries which regularly suppress an individual's speech 
or violate an individual's right to privacy, a cornerstone of our 
democratic and free society is a limited Government--one that doesn't 
sanction Government intrusion on an individual's private life. The 
Government cannot infringe upon an individual's rights without due 
process. But, in order to preserve those rights, Americans rely upon 
the Government to provide that freedom and security to protect them 
from harm, whether it be from a criminal on the streets or from an 
international terrorist.
  Under U.S. criminal law, the U.S. frequently requests the assistance 
of private citizens and companies in order to combat crime. These 
companies provide assistance, usually pursuant to a court order--
but not always--to help keep Americans safe. When assistance is needed 
to combat terrorism overseas, patriotic U.S. companies step up to the 
plate and help their country. At a minimum, these companies rely upon 
Government assurances that their assistance is lawful. When sued in a 
court, they are sometimes unable to supply a defense for their actions 
without exposing Government secrets or jeopardizing Government 
investigations. Instead, they rely on the Government to come to their 
defense and assert Government sanction. In the case of the President's 
terrorist surveillance program--which despite leaks in the press, 
remains highly classified and secret--these companies are defenseless. 
If the Government can show a court its assurances--still classified--
that the assistance was lawful, and the court determines upon 
substantial evidence that the company acted pursuant to a Presidential 
authorization or other lawful means, then our American companies should 
not be liable.

  If any constitutional or privacy violation occurred, an aggrieved 
individual may still sue the Government. This bill, however, assures 
America's corporations that their good-faith assistance will not 
subject them to frivolous lawsuits from individuals who really are 
alleging a claim against the Government, not those who assist it. 
Ordinarily, Americans should be protected against Government intrusion, 
but it should not be at the cost of higher phone and Internet access 
bills for customers just so these corporations can defend themselves 
against frivolous lawsuits.
  This legislation preserves liability protection for Americans, and I 
am pleased to see that our bipartisan, bicameral negotiators sustained 
this provision. Title II of this legislation is largely the same as 
what was in the Senate-passed bill. I commend the House for passing 
legislation including this provision and the Senate for now taking 
much-needed action.
  One thing that came out of the debate on this particular aspect of 
the bill within the Intelligence Committee was the fact that in this 
situation it is pretty obvious that the Government was in a crisis 
situation just following September 11. We had just been attacked by 
terrorists. We needed the assistance of private corporations in 
America. When we asked for their assistance, they stepped up to the 
plate. We know it is going to happen again. It may not be a terrorist 
attack next time; it may be some other crisis that is inflicted upon 
America. At that point in time, we are going to need the assistance of 
the private sector in America again. If we don't tell the private 
sector, in this particular case, that we are going to protect them and 
make sure they suffer no loss as a result of stepping up to help 
protect Americans following September 11, then should we expect the 
private sector to step up next time, whatever the crisis may be? The 
answer to that is obvious, and, in a very bipartisan way within the 
Intelligence Committee, there was general agreement that is the way we 
should proceed.
  The only real and meaningful differences between this bill and the 
Senate-passed bill are more judicial involvement in the President's 
constitutional duty to conduct foreign affairs and protect our Nation. 
Our intelligence agencies will be allowed to collect intelligence 
against individuals located outside the United States, without having 
to first seek individual court orders in each instance.
  Rather than having to seek numerous court orders and losing time and 
valuable collection opportunities, this legislation will require a 
reasonable belief that the target is outside the United States, so our 
intelligence analysts have the ability to assess and task new 
collection in real time; that is, before the bad guys get away, switch 
phones, and continue their planning. Unlike the Senate-passed bill, 
this legislation requires prior court review and approval of the 
targeting and minimization procedures submitted by the Attorney 
General, our chief law enforcement and legal advisor, and the Director 
of National Intelligence, our primary national security adviser.
  I wish to state in the record that the exigent circumstances 
provision included in this legislation is not meant to be limited. 
Rather, it is a provision necessary to allow the retention of 
intelligence gathered in those situations where prior court approval 
was not practical.
  Under no circumstance is it acceptable for intelligence gathered 
under an exigent circumstance, and later found to be acceptable by the 
court, to be discharged. Intelligence does not wait for court orders, 
and it must be collected timely. The intelligence community should not 
have to wait for a court order to continue collection against those who 
seek to harm America. If the court later determines that the targeting 
and certifications were lawful, then our intelligence officials should 
be allowed to review that which was collected.
  It is now time for us to make more permanent changes to FISA to 
ensure we have the ability to obtain intelligence on terrorists and our 
adversaries. Although not a perfect bill, the FISA Amendments Act will 
fill the gaps identified by our intelligence officials and provide them 
with the tools and flexibility they need to collect intelligence from 
targets overseas, while at the same time providing significant 
safeguards for the civil liberties of Americans. This bill will ensure 
that we do not miss opportunities to target and collect foreign 
terrorist communications just because our operators had to get 
permission from a U.S. court first.
  Let me be clear, these amendments to FISA would only apply to 
surveillance directed at individuals who are located outside of the 
United States. This is not meant to intercept conversations between 
Americans or even between two terrorists who are located within the 
United States. The Government still would be required to seek the 
permission of the FISA Court for any surveillance done against people 
physically located within the United States, whether a citizen or not.
  In fact, this legislation will provide new protections for U.S. 
citizens under our law. Under this bill, for the first time, a court 
order must be obtained to conduct electronic surveillance for foreign 
intelligence purposes against an American who is located outside the 
United States. It also includes a prohibition on reverse targeting; 
that is, our intelligence agencies will not be allowed to target an 
individual overseas with the intent and purpose of obtaining a U.S. 
person's communications.
  I am satisfied that the FISA Amendments Act will close gaps in our 
intelligence collection as well as provide some legal certainty to 
those patriotic companies that assist us. I urge my colleagues to 
support this bill and give our professional intelligence officials the 
confidence they need to secure our Nation.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. SANDERS. Mr. President, I come to the floor today to express my 
strong opposition to H.R. 6304, the FISA Amendments Act, and my 
opposition to invoking cloture on the motion to proceed to this 
  Let me tell you what I think this debate is about and what it is not 
about. What it is not about is whether anyone in the Senate or the 
Congress is not going to do everything he or she can to protect the 
American people from another terrorist attack. It is not about whether 
we are going to be as vigorous as we can in hunting down terrorists. It 
is not about whether we are going to be vigilant in the war against 
terrorism. That is what it is not about. What it is

[[Page S6123]]

about essentially is whether we can be forceful and successful in 
fighting terrorism while we protect the constitutional rights that make 
us a free country. That is what this debate is about.
  I happen to believe that with strong law enforcement, with a strong 
and effective judiciary, with a Congress working diligently, we can be 
vigorous and successful in protecting the American people against 
terrorism and we can do it in a way that does not undermine the 
constitutional rights which people have fought for hundreds of years to 
protect--the Constitution, which today remains one of the greatest 
documents ever written in the history of humanity.
  We hear a whole lot about the word ``freedom.'' Everybody in the 
Senate and the House is for freedom. But what do we mean by freedom? 
What we mean by freedom is that we want our kids to be able to read any 
book they want to read without worrying that the FBI is going to come 
into a library or a bookstore to check on what they are reading. We 
want people to be able to write letters to the editor critical of the 
President, critical of their Congressmen or their Senator without 
worrying that somebody is going to knock on their door. We want people 
to have the freedom to assemble, to demonstrate without worrying that 
someone has a camera on them and is taking notes and later on there 
will be retribution because they exercised their freedom of assembly 
and their right to dissent.
  That is really what the debate is about. It is not whether you are 
for protecting the American people against a terrorist attack. That is 
not what the debate is. The debate is whether we, as a great country, 
will be capable of doing that within the context of our laws, within 
the context of our Constitution, and understanding that we are a nation 
of laws and not of men, regardless of who the President is.
  Before I go into deeper concerns, I begin by recognizing the very 
hard work done by members of both the Intelligence Committee and the 
Judiciary Committee in the Senate and in the House. We all know these 
are not issues resolved, and while I have strong disagreements with the 
final product, I know that the intentions of all the Members on both 
sides of the aisle were honorable.
  Although there have been some improvements made to this bill that the 
Senate passed earlier this year, including having the inspector general 
review the so-called terrorist surveillance program and making it clear 
that FISA and criminal law are the exclusive process by which the 
electronic surveillance can take place rather than some broad power of 
the President, this final legislation is something I simply cannot 
  This legislation does not strike the right and appropriate balance 
between ensuring that our intelligence community has the tools it needs 
to protect our country against international terrorism and protecting 
the civil liberties of law-abiding Americans. Instead, it gives a get-
out-of-jail-free card to companies that may well have violated the 
privacy and constitutional rights of millions of innocent Americans.
  I am proud to be a cosponsor of the amendment that will be offered, 
as I understand it, by Senators Dodd, Feingold, and Leahy to strike 
title II of the Intelligence bill which deals with retroactive 
immunity. This is a very important amendment, and I hope a majority of 
the Members of the Senate will support it.
  It is important in this debate to put the discussion of this FISA 
legislation in a broader context. The context, sadly, in which we must 
view this legislation has everything to do with the history of what 
this administration currently in power has done since 9/11. Sadly, what 
they have done is shown the people of our country and people all over 
the world that they really do not understand what the Constitution of 
the United States is about and, in fact, they do not understand, in 
many instances, what international human rights agreements, such as the 
Geneva Convention, are all about.
  So when we enter this debate, we should not look at it that this is 
the first time we are addressing the issue of fundamental attacks on 
American civil liberties. This has been going on year after year. This 
is more of the same from an administration which believes, to a 
significant degree, that they are an imperial Presidency, that in the 
guise of fighting terrorism, a President has the right to do anything 
against anybody for any reason without understanding what our 
Constitution is about or what our laws are about.

  Let me give a few examples to remind my colleagues what kind of 
credibility, or lack thereof, this administration has in the whole area 
of civil liberties.
  Among other things, this administration has pushed for, successfully, 
the passage of the original PATRIOT Act and the PATRIOT Act 
reauthorization. Under that bill, among many things, an area I was 
involved in when I was in the House was a provision that says, without 
probable cause, the FBI can go into a library or bookstore and find out 
the books you are reading, and if the librarian or bookstore owner were 
to tell anybody, that person would be in violation of the law. Do we 
want the kids of this country to be frightened about taking out a book 
on Osama bin Laden because somebody may think they are sympathetic to 
terrorism? I don't think so. What freedom is about is encouraging our 
young people and all Americans to investigate any area they want. I 
don't want the people of this country to be intimidated. That is not 
what free people are about.
  Further, under this administration, we have seen an illegal and 
expanded use of national security letters by the FBI.
  We have seen the NSA's warrantless wiretap program, which, in fact, 
is what we are discussing today.
  We have seen the President using signing statements to ignore the 
intent of Congress's law in an unprecedented way. The President says: 
Oh, yes, I am going to sign this bill, but, by the way, I am not going 
to enforce section 387; I don't like that section. Mr. President, that 
is not the way the law works. If you don't like it, you have the power 
to veto. You cannot pick and choose what provisions you want. But that 
is, to a large degree, what this President has done.
  What we have seen in recent years is a profiling of citizens engaged 
in constitutionally protected free speech and peaceful assembly. As I 
mentioned earlier, the right to dissent, the right to protest is at the 
heart of what this country is about. I do not want Americans to be 
worried that there is a video camera filming them and they will be 
punished somewhere down the line because they exercised their freedom 
of speech.
  We have seen data mining of personal records.
  We have seen the Abu Ghraib prison scandal, which has embarrassed us 
before the entire world.
  We have seen a broad interpretation of congressional resolutions 
regarding use of military force as justification for unauthorized 
surveillance and other actions.
  We have seen extraordinary renditions of detainees to countries that 
allow torture. All over the world, people are looking at the United 
States of America and saying: What is going on in that great Nation? We 
tell them to be like us, to support democracy, to support human rights, 
and then we engage in torture and we pick people up and we take them to 
countries where they are treated in horrendous ways. This is certainly 
one of the reasons respect for the United States has gone down all over 
this world, which is a tragedy unto itself but obviously makes it 
harder for us to bring countries together in the important fight 
against international terrorism.
  We have seen an administration that has gotten rid of the rights of 
detainees to file habeas corpus petitions--simply put people away, deny 
them access to a lawyer, deny them the right to defend themselves.
  We have seen political firings in the Office of the U.S. Attorney.
  We have seen destruction of CIA tapes.
  The list goes on and on.
  So the issue we are debating today has to be seen in the broader 
context that for the last 7 years, there has been a systematic attack 
on our Constitution by an administration which believes that, in the 
guise of fighting terrorism, they can do anything they want against 
anybody they want without getting court approval or without respecting 
our Constitution and the rule of law.

[[Page S6124]]

  I wish to touch on one point. I know Senator Feingold, Senator Leahy, 
and Senator Dodd have touched on this bill at great length. I just want 
to focus on one issue, and that is the retroactive immunity granted to 
the telecommunications companies.
  Why is it important that we support the amendment which does away 
with that retroactive immunity? It is very simple. The argument is that 
the President of the United States went to these companies and said: 
Look, I need your help in doing something, and the companies obliged.

  Then the issue is, well, why are we punishing them, even if they 
broke the law? And the answer is pretty simple: It is precisely that we 
are a nation of laws and not of men. If we grant them retroactive 
immunity, what it says to future Presidents is, I am the law because I 
am the President, and I will tell you what you can do. And because I 
tell you what to do or ask you to do something, that is, by definition, 
legal. Go and break into my political opponent's office. Don't worry 
about it; I am the President. I am saying it is for national security. 
Those guys are bad guys, just do it. I am the President, and that is 
all that matters.
  That is the precedent that we are setting today, and I think it is a 
very bad precedent. Trust me, Verizon and these other large 
telecommunications companies, multi, multibillion-dollar companies, 
have a lot of lawyers. They have a lot of good lawyers. And what we 
know, in fact, is that some of the telecommunications companies--at 
least one that comes to mind--said: No, Mr. President, sorry, that is 
unconstitutional. That is illegal, I ``ain't'' gonna do it. I applaud 
them for that. But others said: Hey, the President is asking us, we are 
going to do it.
  The point is, the President is not the law. The law is the law. The 
Constitution is the law. And I don't want to set a precedent today by 
which any President can tell any company or any individual: You go out 
and do it; don't worry about it; no problem at all. That is not what 
this country is about.
  So let me conclude, Mr. President, by saying this is a very important 
issue which concerns millions and millions of Americans. Bottom line, 
every American, every Member of the Senate understands we have to do 
every single thing we can to protect the American people from terrorist 
attacks. There is no debate about that. Some of us believe, however, 
that we can be successful in doing that while we uphold the rule of 
law, while we uphold the Constitution of this country, which has made 
us the envy of the world and for which we owe the Founders of our 
country and those who came after, fighting to protect those civil 
liberties, so much.
  Madam President, I yield the floor.
  The PRESIDING OFFICER (Mrs. McCASKILL). The Senator from Utah.
  Mr. HATCH. Madam President, Congress has been working on FISA 
modernization since April of 2007. That is over 425 days ago. It is 
simply amazing to me that it would take this long. As I have often 
said, the Constitution of the United States was written in about 115 
days, and that included travel time on horseback for the Founding 
Fathers. We have spent plenty of time on this issue.
  So why is it taking so long? Should this issue be controversial? I 
can only surmise that the delay is due to the ominous sounding 
terrorist surveillance program. That is the program where the President 
had the audacity to allow the intelligence community to listen to 
international communications where at least one person was suspected to 
be a member of al-Qaida--the same al-Qaida who killed nearly 3,000 
innocent American civilians on September 11; the same al-Qaida who 
since that day has committed attacks in Istanbul, Algiers, Karachi, 
Islamabad, Casablanca, London, Madrid, Mombasa, the Gulf of Aden, 
Riyadh, Tunisia, Amman, and Bali; the same al-Qaida whose mission 
statement can be summed up in three words: ``Death to America.''
  This is the group the President targeted. He wanted an early warning 
system to help prevent future attacks--a terrorist smoke detector, if 
you will. We often are reminded that we are fighting against an 
unconventional enemy, one that has asymmetrical advantages against us. 
Al-Qaida is not a nation state and adheres to no treaties or principles 
on the conduct of war. They wear no uniforms. They hide in peace-loving 
societies and deliberately conduct mass attacks against unarmed 
civilians. But we also have asymmetrical advantages.
  As the most technologically sophisticated Nation in history, we have 
huge advantages that derive from this expertise. We are also--and I 
certainly see this as an asymmetrical advantage over the barbarism that 
is al-Qaida--a nation of laws. Finally, our surveillance laws are going 
to be modernized so we can continue to use our own technological 
superiority to help prevent future attacks against our public and the 
public of nations that have joined us in our fight to liquidate al-
  This is what the President was always intent on doing. So he 
initiated the terrorist surveillance program, and the administration 
provided appropriate briefings to the chairs and ranking members of the 
Senate and House Intelligence Committees and to the leaders of both 
parties in both Chambers. When a new Member of Congress assumed one of 
those positions, they were given a similar briefing.
  Last year, the Senate Intelligence Committee and numerous staff 
conducted a full review of the terrorist surveillance program and found 
no wrongdoing.
  So why has it taken us so long to get here, and what is the concern 
that has caused the delay; that the President listened to the 
international communications of al-Qaida after 9/11? No President would 
ever engage in this type of activity, except of course President 
Woodrow Wilson, who authorized interceptions of communications between 
Europe and the United States, and President Franklin Roosevelt, who in 
1940 authorized interception of all communications into and out of the 
United States.
  I guess the fourth amendment and the media's outrage were more 
flexible under Democratic Presidents. But let's leave these situations 
aside and continue to focus on the program one of my Democratic 
colleagues previously called ``one of the worst abuses of executive 
power in our history.''
  With all due respect to my colleague, if listening to the 
international communications of al-Qaida is one of the biggest power 
grabs in the country's history, then our Nation has lived a charmed 
existence, worthy of envy throughout the world.
  We should never forget the reasons for the creation of this program. 
It is no accident that America has not been attacked since September 
11. Is it more than luck? Did al-Qaida take a hiatus from terrorist 
attacks? Given al-Qaida's numerous foreign attacks during this same 
timeframe, I think the answer is clearly no. So something must be 
working. Perhaps the terrorist surveillance program has played a role.
  But what about warrantless wiretapping? That phrase certainly means 
something illegal, right? Not really. As often as that phrase is 
repeated, what does it really mean? Does warrantless wiretapping 
automatically mean unconstitutional? That is certainly what we are led 
to believe by the hand-wringing blatteroons of the day. But this is 
simply not true.
  The fourth amendment does not proscribe warrantless searches or 
surveillance. It proscribes unreasonable searches or surveillance. For 
example, let's look at a few of the numerous warrantless searches that 
are performed every day: Waiting for warrantless searches at the U.S. 
Border Inspection Station. Look at that mess.
  Look at this: Waiting for warrantless searches at the U.S. Supreme 
Court. It is done every day that the court is in session, and even when 
it isn't sometimes. Waiting for warrantless searches at the National 
Archives. In other words, waiting to be searched before viewing the 
fourth amendment. This happens every day. I see that there are members 
of the public in the gallery above. Every last one of them went through 
a warrantless search just to get into this building.
  So the question becomes whether a warrantless search or surveillance 
of international communications involving al-Qaida is reasonable or, to 
put it another way, whether signals intelligence against a declared 
enemy of the United States is reasonable. In my opinion, and I think in 
the opinion of the vast majority of our body, it certainly is.

[[Page S6125]]

  Let's also look at what the Foreign Intelligence Surveillance Court 
of Review, the highest court that has considered this issue, has said:

       The Truong court, as did all the other courts to have 
     decided the issue, held that the President did have inherent 
     authority to conduct warrantless searches to obtain foreign 
     intelligence information. We take for granted that the 
     President does have that authority and, assuming that is so, 
     FISA could not encroach on the President's constitutional 

  That is out of in re: Sealed, case 310 F3d, 717, the FISA Court of 
Review, 2002.
  While the phrase ``warrantless wiretapping'' has been cited 
incessantly, there is another phrase mentioned nearly as often, and 
that is ``domestic spying.'' In order to better evaluate this phrase, 
let's look at what the President said in a December 17, 2005, radio 
address that described the TSP.

       In the weeks following the terrorist attacks on our Nation, 
     I authorized the National Security Agency, consistent with 
     U.S. law and the Constitution, to intercept the international 
     communications of people with known links to al-Qaida and 
     related terrorist organizations. Before we intercept these 
     communications, the government must have information that 
     establishes a clear link to these terrorist networks.

  I don't see anything in that statement about domestic spying. I 
thought the definition of the word ``domestic'' was pretty clear. If 
the program intercepted communications in which at least one party was 
overseas, not to mention a member of al-Qaida, then it seems fairly 
obvious that those calls were--and I will emphasize this--not domestic.
  Is this a domestic call? A foreign terrorist calling a terrorist 
within the United States? I hardly think so. Is this really such a hard 
concept? The last time I flew overseas, I didn't fly on a domestic 
flight. I flew on an international flight. My last phone bill showed 
there is a big difference between domestic calls and international 
  Domestic spying may sound catchy and mysterious, but it is a 
completely inaccurate, even misleading, way to describe the TSP 
terrorist surveillance program--or FISA modernization. Why don't we 
describe them as international spying, which is what they really are? 
Isn't that a more accurate description? But I imagine international 
spying wouldn't raise the same level of fear and distrust in our 
Government that some on the left try to foster.
  So while I regret the political machination that has turned this 
seemingly straightforward issue on its head, I am hopeful the time for 
debate is finally over. Yet some have suggested Congress should not 
pass a bill modernizing FISA. Even after such a prolonged period and 
extensive debate on the issue, they would prefer that we do nothing.
  We are now hearing about efforts to strike or amend the immunity 
provisions in the compromise bill so that Members may express their 
  Is this really necessary? Did the multiple times the Senate has 
considered and rejected similar efforts mean nothing?
  Look at this: The Senate has affirmed telecom civil liability 
protection in six separate votes. On October 18, 2007, the Senate 
Intelligence Committee rejects the amendment to strike the immunity 
provisions 12 to 3. That was bipartisan, by the way. On November 15, 
2007, the Senate Judiciary Committee rejects amendment to strike 
immunity provisions 12 to 7. Again, bipartisan. On 12/13/07, the Senate 
Judiciary Committee rejects stand-alone Government substitution bill 13 
to 5. On January 24, 2008, the full Senate tables the Judiciary's 
substitute, which does not include immunity, 60 to 36. On February 12, 
2008, the full Senate rejects the amendment to substitute the 
Government for telecoms 68 to 30. On February 12, 2008, the full Senate 
rejects amendment to strike immunity provisions 67 to 31.
  The last time I saw that and looked at those numbers, those were all 
bipartisan votes. The civil liability provision in the Senate bill, 
which has been tweaked in this compromise, is supported by a bipartisan 
majority of the House and Senate, after all this hullabaloo.
  In addition, let us not forget the opinions of the State attorneys 
general who previously wrote to Congress to express their support for 
civil liability protection.
  Look at all the State attorneys general who endorse immunity. State 
attorney general of Wisconsin, the attorney general of Rhode Island, 
the attorney general of Oklahoma, the attorney general of Colorado, the 
attorney general of Florida, the attorney general of Alabama, the 
attorney general of Arkansas, the attorney general of Georgia, the 
attorney general of Kansas, the attorney general of my beloved home 
State of Utah, the attorney general of Texas, the attorney general of 
New Hampshire, the attorney general of Virginia, the attorney general 
of North Dakota, the attorney general of North Carolina, the attorney 
general of South Carolina, the attorney general of Pennsylvania, 
attorney general of South Dakota, attorney general of Nebraska, the 
attorney general of West Virginia, the attorney general of Washington.
  These are all legal officers, by the way, attorneys general of those 
very States.
  Another complaint that has been mentioned is that this bill does not 
have adequate oversight. We have heard allegations that:

       the government can still sweep up and keep the 
     international communications of innocent Americans in the 
     U.S. with no connection to suspected terrorists, with very 
     few safeguards to protect against abuse of this power.

  We have heard other allegations that this bill does not provide 
adequate protections for innocent Americans. Make no mistake. The role 
of the Federal judiciary into the realm of foreign intelligence 
gathering is greatly expanded by this legislation.
  So when we hear the incessant claims that this legislation lacks 
meaningful review, I want people to be absolutely crystal clear on the 
staggering amount of oversight in this bill.
  The Foreign Intelligence Surveillance Court was created by the 1978 
FISA law for solely one purpose: This is Title 50 of the U.S. Code 
1803(a): ``a court which shall have jurisdiction to hear applications 
for and grant orders approving electronic surveillance.''
  Let's think about this. It is America in 1978. The Church Committee 
has published information about known abuses by the Government 
involving surveillance against American citizens. The public wanted 
action. So what did the 95th Congress do?
  Did it create a Court with the authority to review and approve the 
intelligence community's foreign targeting techniques? No.
  Did it create a Court with the ability to review and approve the 
techniques used to minimize incidental interceptions involving 
Americans? No.
  Did it mandate the intelligence community to get a warrant when 
targeting United States persons overseas? No.
  But the 110th Congress will mandate each and every one of those 
things by passing this bill.
  For the first time, the FISC will review and approve targeting 
procedures to ensure that authorized acquisitions are limited to 
persons outside of the United States.
  For the first time, the FISC will review and approve minimization 
  For the first time, the FISC will ensure that the foreign 
targeting procedures are consistent with the fourth amendment.

  So given the staggering amount of oversight, there must be some 
sweeping new surveillance authority that would necessitate these 
changes, right? Wrong.
  The ``broad new surveillance authority'' that we hear so much about 
is directed at one thing: the Government can target foreign citizens 
overseas after the FISC reviews and approves the targeting and 
minimization procedures. In layman's terms: the Government can listen 
to foreign citizens overseas to collect foreign intelligence 
information. That doesn't sound like broad sweeping authority to me. In 
fact, it is less authority than the Government had before.
  Let me enumerate some of the many restrictions on this authority:
  No. 1, the Government can't intentionally target any person known to 
be in the U.S.
  No. 2, the Government can't intentionally target a person outside the 
U.S. if the purpose is to target a known person in the U.S.--reverse 

[[Page S6126]]

  No. 3, the Government can't acquire domestic communications in the 
  No. 4, the targeting has to be consistent with the fourth amendment 
to the Constitution.
  And there is more: the Attorney General and the Director of National 
Intelligence have to develop and adopt guidelines to ensure compliance 
with these limitations. These guidelines must be submitted to 
Congressional Intelligence and Judiciary Committees as well as the 
  The Attorney General and the Director of National Intelligence shall 
assess compliance with the targeting and minimization procedures at 
least every 6 months. This assessment must be submitted to the FISC, 
and the Intelligence and Judiciary committees of both chambers of 
  The Inspectors General of the Department of Justice and each element 
of the intelligence community may review compliance with the targeting 
and minimization procedures.
  Finally, this bill authorizes a horde of inspectors general to 
conduct a full review of certain communications surveillance 
activities--a review that the Senate Intelligence Committee has already 
conducted on a bipartisan basis and found nothing wrong. Vice Chairman 
Bond and the other negotiators agreed to narrow the scope of this 
review so that there would be minimal or no operational impact on our 
intelligence analysts. It should come as no surprise that we want 
intelligence analysts to focus on analysis, not spend limited time and 
resources digging up documents for redundant IG reviews.

  So for those who criticize this bill as lacking oversight, I wonder 
if any level would be enough? I have no doubt that some would only be 
satisfied by specific individual warrants for each and every foreign 
terrorist overseas. This would complete the twisted logic that somehow 
giving complete constitutional protections to foreign terrorists leads 
to more protections for Americans. Do we really need to remind people 
that foreign citizens outside of our country, particularly members of 
terrorist organizations, enjoy no--none--no protections from our 
  Make no mistake about the power the FISA Court will possess in 
foreign intelligence gathering following passage of this bill. If the 
Court finds any deficiency in the certification submitted by the 
Attorney General or Director of National Intelligence, then the FISC 
can direct the Government to cease or not initiate the foreign 
targeting. In other words--our collection would go dark. Fortunately, 
the Government will be able to rightly begin acquisitions pending an 
appeal to the Foreign Intelligence Surveillance Court of Review.
  This is surely an intimidating environment for our intelligence 
analysts. Essentially, any accident or mistake will be highlighted to 
Congress. Unforgiving is not the word. I wonder how many private 
citizens would enjoy having policies at their jobs where any 
inadvertent error would result in notification to and review by 
  I will suggest that the amount of oversight in this bill should be 
revisited in the future; not to increase it, but rather to mandate more 
realistic and appropriate levels of review.
  The multiple oversight initiatives in this legislation are not 
fulfilled by magic. It takes a tremendous amount of time and resources 
by the very analysts whose primary job is to track terrorists. As great 
as our analysts are, they can't be two places at once. There are only 
so many of them, and they don't have unlimited resources. It is worth 
noting what Director of National Intelligence McConnell said to 
Congress last September:

       Prior to the Protect America Act, we were devoting 
     substantial expert resources towards preparing applications 
     that needed FISA Court approval. This was an intolerable 
     situation, as substantive experts, particularly IC subject 
     matter and language experts, were diverted from the job of 
     analyzing collection results and finding new leads.

  The leaders of our intelligence community have to make wise choices 
when allocating the time and expertise of analysts, and their hands 
should not be unnecessarily tied by Congress. Analytic expertise on 
target is a finite resource; a finite resource which the public must 
understand is rendered against an enemy whose resources and 
capabilities remain obscured to us, while its intent remains deadly.
  But I guess I shouldn't be surprised by the inclusion of these 
onerous oversight provisions, which no previous Congress felt the need 
to add. How many times have we heard claims that the Protect America 
Act would permit the Government to spy on innocent American families 
overseas on their vacations? Or innocent American soldiers overseas 
serving our country? Or innocent students who are simply studying 
  Painting this type of picture only feeds the delusions of those who 
wear tin foil hats around their house and think that 9/11 was an inside 
  Do we think so little of the fine men and women of our intelligence 
community that we assume they would rather target college kids in 
Europe than foreign terrorists bent on nihilistic violence?
  The absurdity of these accusations cannot be understated and we 
should not tolerate them. We should never forget that our intelligence 
analysts are not political appointees. They serve regardless of which 
President is in office, or which political party is represented. They 
take an oath to defend the Constitution. And rather than respect and 
trust their judgment and integrity, we layer oversight mechanisms that 
treat them like 16-year-olds who just got their first job and have to 
be birdwatched for fear they are stealing money from the cash register.

  Now I agree there are some instances in which we may want to target 
individuals studying abroad. I am not necessarily talking about 
institutions of higher learning like the Sorbonne, but rather terrorist 
training camps spread through some hostile regions of foreign 
countries. These are the type of schools that our intelligence 
community is interested in. When it comes to these students, I want to 
know what they are up to.
  Here is a good illustration: Supposed ``Graduation'' of Taliban 
Members on June 9, 2007. I want to know what they are about.
  After addressing some of the critiques of this bill by others, let me 
offer one of my own. This bill calls for prior court review and 
approval of certifications presented to the FISC before foreign 
intelligence collection can begin. As I have consistently stated 
throughout these FISA modernization discussions, I believe this 
principle is unjustified and unwise.
  The idea that the executive branch of the Government needs the 
explicit approval of the judiciary branch before collecting foreign 
intelligence information from foreign citizens in foreign countries is 
simply wrongheaded and is contrary to our Constitutional principles. I 
don't care if the President represents the Democratic party, Republican 
party, Green party, Independent party, or Whig party; he shouldn't need 
permission to track foreign terrorists.
  With that said, I am encouraged that the bill includes a provision 
which would allow collection before court review of procedures if 
``exigent circumstances'' exist. Even with this provision, I am 
troubled that one of my Democratic colleagues in the House made the 
following statement last week about this provision:

       This is intended to be used rarely, if at all, and was 
     included upon assurances from the administration that agrees 
     that it shall not be used routinely.

  This begs the question, is tracking terrorists not an ``exigent 
circumstance''? I urge the executive branch to utilize this provision 
appropriately and as often as necessary following the informed judgment 
of those with the appropriate acumen to make such decisions. The phrase 
``intelligence * * * may be lost'' means what it says: if the executive 
branch determines that we may lose intelligence while waiting for the 
Court to issue an order, then the Intelligence Community should do what 
our Nation expects: it should act and act quickly. The executive branch 
should not hesitate to utilize this authority because of fear of 
reprisal from those who may seek to advance political agendas--which we 
have seen plenty of, and some on this floor today.

  Finally, I want to highlight the extensive efforts of the negotiators 
of this bill in both chambers. I especially want to express my 
appreciation and gratitude to my friend and colleague Kit Bond, the 
dedicated vice chairman of the Intelligence Committee, who adeptly 
navigated and managed the

[[Page S6127]]

tense and tedious negotiations to bring about the opportunity for 
passage of this historic legislation, the most extensive rewrite of 
foreign intelligence surveillance laws in 30 years.
  As you can tell from the tone of my remarks, I am less than pleased 
at some of the compromises made in these negotiations. I don't like the 
expansion of the judiciary branch into what I believe are activities 
rightly under the executive's prerogative. But I came to the Senate to 
achieve improvements for the American people, not to be an ideologue. 
My entire career as a legislator has been in recognition that 
compromise gets more done for the public than obstruction. The people 
of Utah didn't send me to the Senate to obstruct business, but to get 
business done. Nowhere is this more important than on matters where the 
Congress is enjoined by our citizens to improve the national security. 
I am a pragmatist, and I am a realist. Part of being a realist, these 
days, is to recognize that there is a disturbing backlash against the 
national security policies of this administration. Fueled by 
dissatisfaction over mistakes in Iraq, over frustration that the fight 
there and in Afghanistan continues into its seventh year, and that Al 
Qaeda remains a credible and deadly threat, many people in the majority 
party have gone beyond criticism to denunciation, to condemnation and 
obstruction. I am hoping that the general election before us will 
provide the opportunity for a truly grand debate on what we consider 
are threats, and how we believe we must continue to address them. But 
so far the debate has not been joined, and the rhetoric is becoming 
more poisonous. I have come to this floor and expressed my own 
criticisms of this administration, but I have never had reason to 
condemn them as operating in bad faith when it came to defending this 
  I know this President. The President is a wonderfully good man. He 
has done everything in his power to try to protect us. He is an honest 
man. He has had untoward criticism from the media day in and day out. 
He has been deliberately maligned by people who should know better.
  Yes, this administration has made mistakes, but they have not been 
made intentionally. It is pathetic the way the media and many have 
treated this President. I think we have got to go back to where we 
respect our President and we show some degree of tolerance for the 
tough job that being President is.
  It is regrettable for me that the rhetoric around the terrorism 
surveillance program has devolved too often into fire but no light. So 
while I am concerned about some of the compromises made in this bill, I 
am grateful for all of the work done to bring it to a vote this week. 
We have to have this bill to protect the American people.
  I urge my colleagues to support this monumental and historic 
legislation. Our country continues to be both the envy of the world and 
the target of those who seek to advance their warped, violent ideology. 
We know the threats are out there. We do not have to live our lives in 
fear, but we should acknowledge that the world changed on September 11 
and we must remain vigilant.
  Let's ensure that all of the dedicated and noble professionals who 
play a part in ensuring our liberty and safety are not hampered by 
partisan problems that we have the ability and responsibility to 
  The legislation before us makes an important and admirable attempt to 
do just that. I hope my colleagues will support this legislation and 
support final passage. It is overdue. It has been delayed too long. We 
have been playing around with this far too long. There have been so 
many unjust criticisms, I am sick of them, to be honest with you. It is 
almost as though politics has to rear its ugly head every time we turn 
around here. A lot of it is driven by the fact that people resent the 
President of the United States. They do so unjustly, without proper 
sense, in ways that are detrimental to our country and future 
presidencies that will come into office. This President has had very 
difficult problems to handle.
  I believe I am the longest serving person on the Senate Select 
Committee on Intelligence. I have been around a long time. I have seen 
a lot of things. I have tried to help prior Presidents as I have played 
a role on the Intelligence Committee. I have done so, I believe, 
without resorting to partisan attacks. We have had too many partisan 
attacks around here, and I think too many vicious attacks against the 
President and, I might add, against these unnamed, highly classified 
unknown, except by those in the intelligence community, telecom 
companies that patriotically helped our country to protect us, that 
have gone through untold expense, the deprivation and harm caused by 
the zealousness of those who believe that only they can protect the 
civil liberties of this country, when, in fact, that is what the 
telecom companies were cooperating to do.
  I thank all of the Intelligence Committee staffers who have played 
such a big role in helping this bill to come to the floor. We have a 
very dedicated staff on the Intelligence Committee. I have to say that 
in this current Intelligence Committee I have seen more partisanship 
than I have seen in the past. But, by and large, when we passed the 
original bill out of the committee, it was passed 13 to 2, and we 
worked together in a very good way on that committee.
  So I thank those staffers who worked so hard to try and help us all 
resolve this set of difficulties. I hope everybody in the Senate will 
vote for this bill and send it out with resounding victory.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. WYDEN. Madam President, soon the Senate will take up the Foreign 
Intelligence Surveillance Act. It, of course, is known as FISA. FISA 
may not be a household word to most Americans, but a properly written 
FISA reauthorization is exceptionally important to the well-being of 
our country and it needs to meet a simple test: It must allow our 
country to fight terrorism ferociously and still protect our individual 
  I do not know how many Senators have traveled to the other end of 
Pennsylvania Avenue to personally read the legal opinions from the 
Department of Justice on the warrantless wiretapping program that is at 
the center of this debate. Someday these opinions are going to become 
public. Someday the American people will see how flimsy the legal 
reasoning is behind warrantless wiretapping. Someday the American 
people will see the damage that is done to our Nation when the 
executive branch tries to rewrite important national security law in 
  The warrantless wiretapping program is not the first of this 
administration's counterterrorism programs that is built on legal 
quicksand. We have seen the coercive interrogation program, and the 
detention program at Guantanamo. Again and again on these vital 
counterterrorism programs, the administration has overreached, it has 
fallen short, and then it has come to the Congress and asked that the 
Congress clean up these legal messes. I am especially troubled by the 
provisions in this reauthorization of the FISA bill that grant blanket 
retroactive immunity to any telecommunications company that 
participated in the warrantless wiretapping program. I want to spend a 
few minutes to unpack this issue and discuss why I think it is such a 
significant mistake to reauthorize the program in this fashion and to 
have what amounts to a blanket amnesty provision for those who may have 
been involved in illegal activity.
  Many have argued that companies that were asked to participate in the 
warrantless wiretapping program should be treated leniently since they 
acted during a state of national panic and confusion. I have given this 
argument a lot of thought and, frankly, I think there is a valid 
rationale behind that thinking if you are talking about a short period 
of time. But that is not what is being discussed here. The warrantless 
wiretapping program did not last for a few weeks or a few months as 
America worried about the prospect of another attack. It went on for 
nearly 6 years. At some point during that nearly 6-year period, any 
company participating in the program had an obligation to stop and to 
consider whether what they were doing was legal.
  Others have suggested that if you do not give amnesty to the 
companies now, it is going to be impossible to get

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cooperation from other companies in the future in the fight against 
terrorism. I do not buy that argument. Our country is full of patriotic 
citizens and businesses that are eager to do their part and to serve 
their Nation. I will say, I think it is insulting to suggest that 
American businessmen and women will be less patriotic if the Congress 
does not grant amnesty to the phone companies. People of this country 
love our Nation, and I believe they step up, they come forward whenever 
they can.
  I hope, however, that they are not going to say: Well, okay, when the 
Government breaks the law we will automatically step forward in those 
instances. When American businesses are asked to participate in a 
program that looks as if it could be illegal, we all say, that is the 
time to hold on. I think it is important, particularly for our major 
businesses, to follow the law and not just the words of the President. 
I am disappointed that this legislation includes this amnesty 
provision. I hope as colleagues continue to examine the bill, they 
understand what is at issue.
  If the legislation passes, the Attorney General will be able to stop 
any of the lawsuits against the companies dead in their tracks. All the 
Attorney General will have to do is tell the judges considering these 
cases that any corporation that participated in the program was told by 
the Government that what they were doing was legal. They will not have 
to actually prove it was legal, they will not have to provide any 
evidence, they will not have to cite any statutes, they will not have 
to make any legal arguments whatsoever.
  In my view, this amounts to self-certification. Self-certification 
runs counter to the whole idea of the Foreign Intelligence Surveillance 
Act in the first place. The Foreign Intelligence Surveillance Act is 
based on the notion that the way to keep classified intelligence 
activities from intruding on Americans' privacy is to make sure there 
is a significant measure of independent judicial oversight. The judges 
in this situation will be allowed to examine as many documents as they 
like. But, in this instance, they will not actually be allowed to 
exercise independent judgment at all. As long as they see a piece of 
paper, a piece of paper that gets held up from a few years ago, a 
Presidential permission slip, if you will, that claims the program is 
legal, they will be required to grant immunity to the phone companies. 
Even the distinguished leader in the House, the minority whip, has 
acknowledged that this would be a mere ``formality.''
  The concept of independent oversight that is so central to the 
Foreign Intelligence Surveillance Act and that has worked so well in 
practice simply, in my view, should not be transformed into an approach 
that effectively permits the administration to self-certify with 
respect to these particular cases.
  I want to be clear that I cannot begin to divine how various matters 
in litigation will come out. In addition to the constitutional issues 
that are at stake, there is a number of contentious matters regarding 
standing, injury, a host of very difficult legal problems involved. I 
think the judges in these cases will need to consider all of the issues 
if the cases go forward. That is what makes the judicial process in the 
original statute so important. It is independent. They look at all of 
the factors that are relevant. But I will say that I did not think the 
Congress or I should substitute our judgment for the judgment of the 
courts, and that is, in effect, what happens if the legislation goes 
forward as written and blanket immunity is granted to every company 
that participated in the program.
  It saddens me to have to oppose the legislation as written. I do so 
knowing that the bill contains a number of very important provisions 
and, with respect to individual liberty and the rights of our people, 
contains some significant steps forward. I am especially grateful to 
Senators Rockefeller and Bond for working very closely with me to 
ensure that Americans who travel overseas don't lose their rights when 
they leave America's shores. That is the status today, regrettably. In 
this area, Senators Rockefeller, Bond, myself, Whitehouse, Feingold, a 
number of us who serve on the Senate Select Committee on Intelligence 
worked in a constructive, good-faith way with the Bush administration. 
In this legislation, we have put into law that in the digital age, your 
rights are going to travel with you. You don't lose your rights. If you 
are a serviceman from the State of Missouri or a businessperson from 
another part of the country, you won't lose your rights when you leave 
American soil. That is as it should be. It is a significant expansion 
of the individual liberties of our citizens. They should not give up 
their rights when they travel. They ought to have rights that do travel 
in a world with modern communications and modern transportation. That 
provision is part of this reauthorization.
  However, I feel so strongly about the ill-advised nature of the 
provisions that provide for blanket amnesty that I must oppose this 
bill as written. I think when history looks back at what happened, the 
warrantless wiretapping program, they are going to say that this 
program, along with several other flawed counterterrorism programs that 
have come from this administration, was a mistake. We should not 
compound those mistakes by reauthorizing this legislation that contains 
a blanket grant of immunity at a time when Americans understand that it 
is possible to fight terrorism relentlessly, fight terrorism 
ferociously without trashing our rights and liberties simultaneously.
  We can do better. The Senate will have an opportunity to do better. A 
number of colleagues are going to be advocating proposals to strip the 
legislation of the amnesty provision. I hope those provisions will be 
  I would like to pass this bill when we have an opportunity to strike 
a better balance between fighting terrorism aggressively and protecting 
the liberties of our citizens.
  With that, I yield the floor.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. DODD. Madam President, before our colleague leaves the Chamber, I 
commend him for his statement. I had a chance to listen to part of it 
before coming to the floor of the Senate. This is a long-held view of 
my colleague when it comes to civil liberties and the rule of law. I 
commend him for remaining consistent in that insistence. He is 
absolutely correct that this is not a choice between security or 
liberty. In fact, I argue, as he has, that when we begin to retreat on 
the rule of law, we become less secure as a people. We have learned 
that lesson painfully throughout history. This is the time for us to be 
vigilant, both in terms of our security and also when it comes to our 
rights. This is an issue that ought not divide people based on our 
determination to deal with terrorism or those who wish to do great harm 
to our country but to recognize that historically, when we have been 
motivated by fear and have failed to stand up for basic rights, we have 
made horrendous mistakes. When we have stood up for our rights as well 
as insisting on our security, we have done our job as a generation, as 
previous ones have as well.
  This is one of those moments history will look back upon. Why did we 
say that 17 phone companies that relied on a letter and not much more 
than that decided for over 5 years to invade the privacy of millions of 
Americans and would still be doing it today but for a whistleblower who 
revealed the program? Why did they not seek the FISA Court, as 18,748 
other cases that been submitted and only 5 examples when they were 
turned down seeking a warrant since 1978? Why in this case did the Bush 
administration decide to avoid that normal process and go with a simple 
letter, without any legal justification I can determine, and get that 
kind of reaction? Why should we not know that? Why should not the 
American people know that? What happened here?
  That is what the Senator is insisting upon. We will not know the 
answers to those questions if we, as a legislative body, by a simple 
vote here, declare that the courts have no business examining the 
legality of this action. We will avoid that responsibility by casting a 
vote to keep this immunity process in place. I will be joining him. In 
fact, I will be offering the amendment to strike the immunity 
provisions, to do our job when it comes to dealing with FISA, to 
modernizing it, but not to grant immunity to 17 phone companies.
  Quest, to their great credit, when they were given that letter, said: 
We need more legal justification. They did

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not engage in this program. Not all phone companies did. But the ones 
that did bear the responsibility to determine whether what they did was 
legal. We will never know the answer to that if the Senator from Oregon 
and I do not prevail on our amendment.
  I commend him immensely for his statement.
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. ROCKEFELLER. I thank the Chair.
  Madam President, the Senate today--hopefully, tomorrow--returns to 
debating the matter of modernizing FISA and, more specifically, the 
Foreign Intelligence Surveillance Amendments Act of 2008. After many 
months of careful and often very difficult negotiations, we bring to 
the Senate an agreement that many believed could actually never be 
achieved, that is bipartisan legislation aimed at protecting the 
Nation's security and civil liberties, supported by the House, by the 
Senate, as well as both the Attorney General and the Director of 
National Intelligence.
  The bill before us reflects the fact that FISA, as it was created in 
1978, has increasingly become outdated and hindered our Nation's 
ability to collect intelligence on foreign targets in a timely manner. 
It is the direct result of changing technologies, advances in 
technology, in telecommunications, and the need to evolve and meet 
today's threat facing our Nation; namely, global terrorism and the 
proliferation of weapons of mass destruction.
  The fact is, as telecommunications technology has changed, 
intelligence agencies have been presented with collection opportunities 
inside the United States against targets overseas. Yet, because of the 
way FISA was written in 1978, they could not take full advantage of 
these new opportunities.
  Finding a solution to this problem has not been easy. It was made 
more complicated by the President's decision, in the aftermath of the 
September 11, 2001, disaster, to go completely outside of the FISA 
rather than work with Congress to fix the situation. That decision was 
complicated even further by the fact that the President put 
telecommunication companies in a precarious position by not giving them 
the legal security of the FISA Court, even when they were told their 
efforts were legal and necessary to prevent another terrorist attack.
  Early last year, at the start of our tenure as the new chairman and 
vice chairman of the Senate Intelligence Committee, Senator Bond and I 
agreed that our top priority was going to be to modernize FISA. It had 
to be our top priority for the year. Even then, I don't think we 
understood how complex and difficult this endeavor would be or even 
just how important it would be to our intelligence efforts and to the 
war against terrorism. It is a monumental bill, and it redoes, for the 
first time in 30 years, proper handling of collection, which is why I 
am so pleased to stand before you today and say that we have succeeded.
  The laborious process of consultation with Members of both bodies and 
both parties and legal and intelligence officials in the executive 
branch has worked. We have produced a strong, smart policy that will 
meet the needs of our intelligence community and protect America's 
cherished civil liberties.
  For procedural reasons, the bill now before the Senate is a new bill 
which passed the House on Friday by a vote of 293 to 129. You can run 
that out to a 70-percent vote. While formally a new bill, it is the 
product of compromise between the FISA bills developed, debated, and 
amended in both Houses in the course of the past year.
  In the absence of a formal conference, there is no conference report 
that describes this final bill. To help fill that void, I have 
prepared, as manager of the bill, a section-by-section analysis which 
builds on the analysis in our earlier Senate report and includes the 
changes that have followed. I hope it will be of assistance to the 
Senate in consideration of this final legislation as well as to the 
public and all those who will have responsibility to implement the 
  Accordingly, I ask unanimous consent to have printed in the Record 
the summary of the bill's legislative history and a description of its 
four titles.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                 H.R. 6304, FISA AMENDMENTS ACT OF 2008

              Section-by-Section Analysis and Explanation

  Senator John D. Rockefeller IV, Chairman of the Select Committee on 

       The consideration of legislation to amend the Foreign 
     Intelligence Surveillance Act of 1978 (``FISA'') in the 110th 
     Congress began with submission by the Director of National 
     Intelligence (``DNI'') on April 12, 2007 of a proposed 
     Foreign Intelligence Surveillance Modernization Act of 2007, 
     as Title IV of the Administration's proposed Intelligence 
     Authorization Act for Fiscal Year 2008. The DNI's proposal 
     was the subject of an open hearing on May 1, 2007 and 
     subsequent closed hearings by the Senate Select Committee on 
     Intelligence, but was not formally introduced. It is 
     available on the Committee's website: http://
     intelligence.senate.gov/070501/bill.pdf. In the Senate, the 
     original legislative vehicle for the consideration of FISA 
     amendments in the 110th Congress was S. 2248. It was reported 
     by the Select Committee on Intelligence on October 26, 2007 
     (S. Rep. No. 110-209 (2007)), and then sequentially reported 
     by the Committee on the Judiciary on November 16, 2007 (S. 
     Rep. No. 110-258 (2008)). In the House, the original 
     legislative vehicle was H.R. 3773. It was reported by the 
     Committee on the Judiciary and the Permanent Select Committee 
     on Intelligence on October 12, 2007 (H. Rep. No. 110-373 
     (Parts 1 and 2)(2007)). H.R. 3773 passed the House on 
     November 15, 2007. S. 2248 passed the Senate on February 12, 
     2008, and was sent to the House as an amendment to H.R. 3773. 
     On March 14, 2008, the House returned H.R. 3773 to the Senate 
     with an amendment.
       No formal conference was convened to resolve the 
     differences between the two Houses on H.R. 3773. Instead, 
     following an agreement reached without a formal conference, 
     the House passed a new bill, H.R. 6304, which contains a 
     complete compromise of the differences on H.R. 3773.
       H.R. 6304 is a direct descendant of H.R. 3773, as well as 
     of the original Senate bill, S. 2248, and the legislative 
     history of those measures constitutes the legislative history 
     of H.R. 6304. The section-by-section analysis and explanation 
     set forth below is based on the analysis and explanation in 
     the report of the Select Committee on Intelligence on S. 
     2248, at S. Rep. No. 110-209, pp. 12-25, as expanded and 
     edited to reflect the floor amendments to S. 2248 and the 
     negotiations that produced H.R. 6304.

                      Overall Organization of Act

       The FISA Amendments Act of 2008 (``FISA Amendments Act'') 
     contains four titles.
       Title I includes, in section 101, a new Title VII of FISA 
     entitled ``Additional Procedures Regarding Certain Persons 
     Outside the United States.'' This new title of FISA (which 
     will sunset in four and a half years) is a successor to the 
     Protect America Act of 2007, Pub. L. 110-55 (August 5, 2007) 
     (``Protect America Act''), with amendments. Sections 102 
     through 110 of the Act contain a number of amendments to FISA 
     apart from the collection issues addressed in the new Title 
     VII of FISA. These include a provision reaffirming and 
     strengthening the requirement that FISA is the exclusive 
     means for electronic surveillance, important streamlining 
     provisions, and a change in the definitions section of FISA 
     (in section 110 of the bill) to facilitate foreign 
     intelligence collection against proliferators of weapons of 
     mass destruction.
       Title II establishes a new Title VIII of FISA which is 
     entitled ``Protection of Persons Assisting the Government.'' 
     This new title establishes a long-term procedure, in new FISA 
     section 802, for the Government to implement statutory 
     defenses and obtain the dismissal of civil cases against 
     persons, principally electronic communication service 
     providers, who assist elements of the intelligence community 
     in accordance with defined legal documents, namely, orders of 
     the FISA Court or certifications or directives provided for 
     and defined by statute. Section 802 also incorporates a 
     procedure with precise boundaries for liability relief for 
     electronic communication service providers who are defendants 
     in civil cases involving an intelligence activity authorized 
     by the President between September 11, 2001, and January 17, 
     2007. In addition, Title II provides for the protection, by 
     way of preemption, of the federal government's ability to 
     conduct intelligence activities without interference by state 
       Title III directs the Inspectors General of the Department 
     of Justice, the Department of Defense, the Office of National 
     Intelligence, the National Security Agency, and any other 
     element of the intelligence community that participated in 
     the President's Surveillance Program authorized by the 
     President between September 11, 2001, and January 17, 2007, 
     to conduct a comprehensive review of the program. The 
     Inspectors General are required to submit a report to the 
     appropriate committees of Congress, within one year, that 
     addresses, among other things, all of the facts necessary to 
     describe the establishment, implementation, product, and use 
     of the product of the President's Surveillance Program, 
     including the participation of individuals and entities in 
     the private sector related to the program.
       Title IV contains important procedures for the transition 
     from the Protect America Act to the new Title VII of FISA. 
     Section 404(a)(7) directs the Attorney General and the DNI, 
     if they seek to replace an authorization under the Protect 
     America Act, to

[[Page S6130]]

     submit the certification and procedures required in 
     accordance with the new section 702 to the FISA Court at 
     least 30 days before the expiration of such authorizations, 
     to the extent practicable. Title IV explicitly provides for 
     the continued effect of orders, authorizations, and 
     directives issued under the Protect America Act, and of the 
     provisions pertaining to protection from liability, FISA 
     court jurisdiction, the use of information acquired and 
     Executive Branch reporting requirements, past the statutory 
     sunset of that act. Title IV also contains provisions on 
     the continuation of authorizations, directives, and orders 
     under Title VII that are in effect at the time of the 
     December 31, 2012 sunset, until their expiration within 
     the year following the sunset.

               Title I. Foreign Intelligence Surveillance

     Section 101. Targeting the Communications of Persons Outside 
         the United States
       Section 101(a) of the FISA Amendments Act establishes a new 
     Title VII of FISA. Entitled ``Additional Procedures Regarding 
     Certain Persons Outside the United States,'' the new title 
     includes, with important modifications, an authority similar 
     to that granted by the Protect America Act as temporary 
     sections 105A, 105B, and 105C of FISA. Those Protect America 
     Act provisions had been placed within FISA's Title I on 
     electronic surveillance. Moving the amended authority to a 
     title of its own is appropriate because the authority 
     involves not only the acquisition of communications as they 
     are being carried but also while they are stored by 
     electronic communication service providers.
     Section 701. Definitions
       Section 701 incorporates into Title VII the definition of 
     nine terms that are defined in Title I of FISA and used in 
     Title VII: ``agent of a foreign power,'' ``Attorney 
     General,'' ``contents,'' ``electronic surveillance,'' 
     ``foreign intelligence information,'' ``foreign power,'' 
     ``person,'' ``United States,'' and ``United States person.'' 
     It defines the congressional intelligence committees for the 
     purposes of Title VII. Section 701 defines the two courts 
     established in Title I that are assigned responsibilities 
     under Title VII: the Foreign Intelligence Surveillance Court 
     (``FISA Court'') and the Foreign Intelligence Surveillance 
     Court of Review. Section 701 also defines ``intelligence 
     community'' as found in the National Security Act of 1947. 
     Finally, section 701 defines a term, not previously defined 
     in FISA, which has an important role in setting the 
     parameters of Title VII: ``electronic communication service 
     provider.'' This definition is connected to the objective 
     that the acquisition of foreign intelligence pursuant to this 
     title is meant to encompass the acquisition of stored 
     electronic communications and related data.
     Section 702. Procedures for Targeting Certain Persons Outside 
         the United States Other than United States Persons
       Section 702(a) sets forth the basic authorization in Title 
     VII, replacing section 105B of FISA, as added by the Protect 
     America Act. Unlike the Protect America Act, the collection 
     authority in section 702(a) is to be conducted pursuant to 
     the issuance of an order of the FISA Court, or pursuant to a 
     determination of the Attorney General and the DNI, acting 
     jointly, that exigent circumstances exist, as defined in 
     section 702(c)(2), subject to subsequent and expeditious 
     action by the FISA Court. Authorizations must contain an 
     effective date, and may be valid for a period of up to one 
     year from that date.
       Subsequent provisions of the Act implement the prior order 
     and effective date provisions of section 702(a): in addition 
     to section 702(c)(2) which defines exigent circumstances, 
     section 702(i)(1)(B) provides that the court shall complete 
     its review of certifications and procedures within 30 days 
     (unless extended under section 702(j)(2)); section 
     702(i)(5)(A) provides for the submission of certifications 
     and procedures to the FISA Court at least 30 days before the 
     expiration of authorizations that are being replaced, to the 
     extent practicable; and section 702(i)(5)(B) provides for the 
     continued effectiveness of expiring certifications and 
     procedures until the court issues an order concerning their 
       Section 105B and section 702(a) differ in other important 
     respects. Section 105B authorized the acquisition of foreign 
     intelligence information ``concerning'' persons reasonably 
     believed to be outside the United States. To make clear that 
     all collection under Title VII must be targeted at persons 
     who are reasonably believed to be outside the United States, 
     section 702(a) eliminates the word ``concerning'' and instead 
     authorizes ``the targeting of persons reasonably believed to 
     be located outside the United States to collect foreign 
     intelligence information.''
       Section 702(b) establishes five related limitations on the 
     authorization in section 702(a). Overall, the limitations 
     ensure that the new authority is not used for surveillance 
     directed at persons within the United States or at United 
     States persons. The first is a specific prohibition on using 
     the new authority to target intentionally any person within 
     the United States. The second provides that the authority may 
     not be used to conduct ``reverse targeting,'' the intentional 
     targeting of a person reasonably believed to be outside the 
     United States if the purpose of the acquisition is to target 
     a person reasonably believed to be in the United States. If 
     the purpose of the acquisition is to target a person 
     reasonably believed to be in the United States, the 
     acquisition must be conducted in accordance with other titles 
     of FISA. The third bars the intentional targeting of a United 
     States person reasonably believed to be outside the United 
     States. In order to target such United States person, 
     acquisition must be conducted under three subsequent sections 
     of Title VII, which require individual FISA court orders for 
     United States persons: sections 703, 704, and 705. The fourth 
     limitation goes beyond targeting (the object of the first 
     three limitations) and prohibits the intentional acquisition 
     of any communication as to which the sender and all intended 
     recipients are known at the time of the acquisition to be 
     located in the United States. The fifth is an overarching 
     mandate that an acquisition authorized in section 702(a) 
     shall be conducted in a manner consistent with the Fourth 
     Amendment to the U.S. Constitution, which provides for ``the 
     right of the people to be secure in their persons, houses, 
     papers, and effects, against unreasonable searches and 
       Section 702(c) governs the conduct of acquisitions. 
     Pursuant to section 702(c)(1), acquisitions authorized under 
     section 702(a) may be conducted only in accordance with 
     targeting and minimization procedures approved at least 
     annually by the FISA Court and a certification of the 
     Attorney General and the DNI, upon its submission in 
     accordance with section 702(g). Section 702(c)(2) 
     describes the ``exigent circumstances'' in which the 
     Attorney General and Director of National Intelligence may 
     authorize targeting for a limited time without a prior 
     court order for purposes of subsection (a). Section 
     702(c)(2) provides that the Attorney General and the DNI 
     may make a determination that exigent circumstances exist 
     because, without immediate implementation of an 
     authorization under section 702(a), intelligence important 
     to the national security of the United States may be lost 
     or not timely acquired and time does not permit the 
     issuance of an order pursuant to section 702(i)(3) prior 
     to the implementation of such authorization. Section 
     702(c)(3) provides that the Attorney General and the DNI 
     may make such a determination before the submission of a 
     certification or by amending a certification at any time 
     during which judicial review of such certification is 
     pending before the FISA Court.
       Section 702(c)(4) addresses the concern, reflected in 
     section 105A of FISA as added by the Protect America Act, 
     that the definition of electronic surveillance in Title I 
     might prevent use of the new procedures. To address this 
     concern, section 105A redefined the term ``electronic 
     surveillance'' to exclude ``surveillance directed at a person 
     reasonably believed to be located outside of the United 
     States.'' This redefinition, however, broadly exempted 
     activities from the limitations of FISA's individual order 
     requirements. In contrast, section 702(c)(4) does not change 
     the definition of electronic surveillance, but clarifies the 
     intent of Congress to allow the targeting of foreign targets 
     outside the United States in accordance with section 702 
     without an application for a court order under Title I of 
     FISA. The addition of this construction paragraph, as well as 
     the language in section 702(a) that an authorization may 
     occur ``notwithstanding any other law,'' makes clear that 
     nothing in Title I of FISA shall be construed to require a 
     court order under that title for an acquisition that is 
     targeted in accordance with section 702 at a foreign person 
     outside the United States.
       Section 702(d) provides, in a manner essentially identical 
     to the Protect America Act, for the adoption by the Attorney 
     General, in consultation with the DNI, of targeting 
     procedures that are reasonably designed to ensure that 
     collection is limited to targeting persons reasonably 
     believed to be outside the United States. As provided in the 
     Protect America Act, the targeting procedures are subject to 
     judicial review and approval. In addition to the requirements 
     of the Protect America Act, however, section 702(d) provides 
     that the targeting procedures also must be reasonably 
     designed to prevent the intentional acquisition of any 
     communication as to which the sender and all intended 
     recipients are known at the time of the acquisition to be 
     located in the United States. Section 702(d)(2) subjects 
     these targeting procedures to judicial review and approval.
       Section 702(e) provides that the Attorney General, in 
     consultation with the DNI, shall adopt, for acquisitions 
     authorized by section 702(a), minimization procedures that 
     are consistent with section 101(h) or 301(4) of FISA, which 
     establish FISA's minimization requirements for electronic 
     surveillance and physical searches. Section 702(e)(2) 
     provides that the minimization procedures, which are 
     essential to the protection of United States citizens and 
     permanent residents, shall be subject to judicial review and 
     approval. This corrects an omission in the Protect America 
     Act which had not provided for judicial review of the 
     adherence of minimization procedures to statutory 
       Section 702(f) provides that the Attorney General, in 
     consultation with the DNI, shall adopt guidelines to ensure 
     compliance with

[[Page S6131]]

     the limitations in section 702(b), including the prohibitions 
     on the acquisition of purely domestic communications, on 
     targeting persons within the United States, on targeting 
     United States persons located outside the United States, and 
     on reverse targeting. Such guidelines shall also ensure that 
     an application for a court order is filed as required by 
     FISA. It is intended that these guidelines will be used for 
     training intelligence community personnel so that there are 
     clear requirements and procedures governing the appropriate 
     implementation of the authority under this title of FISA. The 
     Attorney General is to provide these guidelines to the 
     congressional intelligence committees, the judiciary 
     committees of the House of Representatives and the Senate, 
     and the FISA Court. Subsequent provisions implement the 
     guidelines requirement. See section 
     702(g)(2)(A)(iii)(certification requirements); section 
     702(l)(1) and 702(l)(2) (assessment of compliance with 
     guidelines); and section 707(b)(1)(G)(ii) (reporting on 
     noncompliance with guidelines).
       Section 702(g) requires that the Attorney General and the 
     DNI provide to the FISA Court, prior to implementation of an 
     authorization under subsection (a), a written certification, 
     with any supporting affidavits. In exigent circumstances, the 
     Attorney General and DNI may make a determination that, 
     without immediate implementation, intelligence important to 
     the national security will be lost or not timely acquired 
     prior to the implementation of an authorization. In exigent 
     circumstances, if time does not permit the submission of a 
     certification prior to the implementation of an 
     authorization, the certification must be submitted to the 
     FISA Court no later than seven days after the determination 
     is made. This seven-day time period for submission of a 
     certification in the case of exigent circumstances is 
     identical to the time period by which the Attorney General 
     must apply for a court order after authorizing an emergency 
     surveillance under other provisions of FISA, as amended by 
     this Act.
       Section 702(g)(2) sets forth the requirements that must be 
     contained in the written certification. These elements 
     include: that the targeting and minimization procedures have 
     been approved by the FISA Court or will be submitted to the 
     court with the certification; that guidelines have been 
     adopted to ensure compliance with the limitations of 
     subsection (b) have been adopted; that those procedures and 
     guidelines are consistent with the Fourth Amendment; that the 
     acquisition is targeted at persons reasonably believed to be 
     outside the United States; that a significant purpose of the 
     acquisition is to obtain foreign intelligence information; 
     and an effective date for the authorization that in most 
     cases is at least 30 days after the submission of the written 
     certification. Additionally, as an overall limitation on the 
     method of acquisition. permitted under section 702, the 
     certification must attest that the acquisition involves 
     obtaining foreign intelligence information from or with 
     the assistance of an electronic communication service 
       Requiring an effective date in the certification serves to 
     identify the beginning of the period of authorization (which 
     is likely to be a year) for collection and to alert the FISA 
     Court of when the Attorney General and DNI are seeking to 
     begin collection. Section 702(g)(3) permits the Attorney 
     General and DNI to change the effective date in the 
     certification by amending the certification.
       As with the Protect America Act, the certification under 
     section 702(g)(4) is not required to identify the specific 
     facilities, places, premises, or property at which the 
     acquisition under section 702(a) will be directed or 
     conducted. The certification shall be subject to review by 
     the FISA Court.
       Section 702(h) authorizes the Attorney General and the DNI 
     to direct, in writing, an electronic communication service 
     provider to furnish the Government with all information, 
     facilities, or assistance necessary to accomplish the 
     acquisition authorized under subsection 702(a). It requires 
     compensation for this assistance and provides that no cause 
     of action shall lie in any court against an electronic 
     communication service provider for its assistance in 
     accordance with a directive. Section 702(h) also establishes 
     expedited procedures in the FISA Court for a provider to 
     challenge the legality of a directive or the Government to 
     enforce it. In either case, the question for the court is 
     whether the directive meets the requirements of section 702 
     and is otherwise lawful. Whether the proceeding begins as a 
     provider challenge or a Government enforcement petition, if 
     the court upholds the directive as issued or modified, the 
     court shall order the provider to comply. Failure to comply 
     may be punished as a contempt of court. The proceedings shall 
     be expedited and decided within 30 days, unless that time is 
     extended under section 702(j)(2).
       Section 702(i) provides for judicial review of any 
     certification required by section 702(g) and the targeting 
     and minimization procedures adopted pursuant to sections 
     702(d) and 702(e). In accordance with section 702(i)(5), if 
     the Attorney General and the DNI seek to reauthorize or 
     replace an authorization in effect under the Act, they shall 
     submit, to the extent practicable, the certification and 
     procedures at least 30 days prior to the expiration of such 
       The court shall review certifications to determine whether 
     they contain all the required elements. It shall review 
     targeting procedures to assess whether they are reasonably 
     designed to ensure that the acquisition activity is limited 
     to the targeting of persons reasonably believed to be located 
     outside the United States and prevent the intentional 
     acquisition of any communication whose sender and intended 
     recipients are known to be located in the United States. The 
     Protect America Act had limited the review of targeting 
     procedures to a ``clearly erroneous'' standard; section 
     702(i) omits that limitation. For minimization procedures, 
     section 702(i) provides that the court shall review them to 
     assess whether they meet the statutory requirements. The 
     court is to review the certifications and procedures and 
     issue its order within 30 days after they were submitted 
     unless that time is extended under section 702(j)(2). The 
     Attorney General and the DNI may also amend the certification 
     or procedures at any time under section 702(i)(1)(C), but 
     those amended certifications or procedures must be submitted 
     to the court in no more than 7 days after amendment. The 
     amended procedures may be used pending the court's review.
       If the FISA Court finds that the certification contains all 
     the required elements and that the targeting and minimization 
     procedures are consistent with the requirements of 
     subsections (d) and (e) and with the Fourth Amendment, the 
     court shall enter an order approving their use or continued 
     use for the acquisition authorized by section 702(a). If it 
     does not so find, the court shall order the Government, at 
     its election, to correct any deficiencies or cease, or not 
     begin, the acquisition. If acquisitions have begun, they may 
     continue during any rehearing en banc of an order requiring 
     the correction of deficiencies. If the Government appeals to 
     the Foreign Intelligence Surveillance Court of Review, any 
     collection that has begun may continue at least until that 
     court enters an order, not later than 60 days after filing of 
     the petition for review, which determines whether all or any 
     part of the correction order shall be implemented during the 
       Section 702(j)(1) provides that judicial proceedings are to 
     be conducted as expeditiously as possible. Section 702(j)(2) 
     provides that the time limits for judicial review in section 
     702 (for judicial review of certifications and procedures or 
     in challenges or enforcement proceedings concerning 
     directives) shall apply unless extended, by written order, as 
     necessary for good cause in a manner consistent with national 
       Section 702(k) requires that records of proceedings under 
     section 702 shall be maintained by the FISA Court under 
     security measures adopted by the Chief Justice in 
     consultation with the Attorney General and the DNI. In 
     addition, all petitions are to be filed under seal and the 
     FISA Court, upon the request of the Government, shall 
     consider ex parte and in camera any Government submission or 
     portions of a submission that may include classified 
     information. The Attorney General and the DNI are to retain 
     directives made or orders granted for not less than 10 years.
       Section 702(l) provides for oversight of the implementation 
     of Title VII. It has three parts. First, the Attorney General 
     and the DNI shall assess semiannually under subsection (l)(1) 
     compliance with the targeting and minimization procedures, 
     and the Attorney General guidelines for compliance with 
     limitations under section 702(b), and submit the assessment 
     to the FISA Court and to the congressional intelligence and 
     judiciary committees, consistent with congressional rules.
       Second, under subsection (l)(2)(A), the Inspector General 
     of the Department of Justice and the inspector general 
     (``IG'') of any intelligence community element authorized to 
     acquire foreign intelligence under section 702(a) are 
     authorized to review compliance of their agency or element 
     with the targeting and minimization procedures adopted in 
     accordance with subsections (d) and (e) and the guidelines 
     adopted in accordance with subsection (f). Subsections 
     (l)(2)(B) and (l)(2)(C) mandate several statistics that the 
     IGs shall review with respect to United States persons, 
     including the number of disseminated intelligence reports 
     that contain references to particular U.S. persons, the 
     number of U.S. persons whose identities were disseminated in 
     response to particular requests, and the number of targets 
     later determined to be located in the United States. Their 
     reports shall be submitted to the Attorney General, the DNI, 
     and the appropriate congressional committees. Section 
     702(l)(2) provides no statutory schedule for the completion 
     of these IG reviews; the IGs should coordinate with the heads 
     of their agencies about the timing for completion of the IG 
     reviews so that they are done at a time that would be useful 
     for the agency heads to complete their semiannual reviews.
       Third, under subsection (l)(3), the head of an intelligence 
     community element that conducts an acquisition under section 
     702 shall review annually whether there is reason to believe 
     that foreign intelligence information has been or will be 
     obtained from the acquisition and provide an accounting of 
     information pertaining to United States persons similar to 
     that included in the IG report. Subsection (l)(3) also 
     encourages the

[[Page S6132]]

     head of the element to develop procedures to assess the 
     extent to which the new authority acquires the communications 
     of U.S. persons, and to report the results of such 
     assessment. The review is to be used by the head of the 
     element to evaluate the adequacy of minimization procedures. 
     The annual review is to be submitted to the FISA Court, the 
     Attorney General and the DNI, and to the appropriate 
     congressional committees.
     Section 703. Certain Acquisition Inside the United States 
         Targeting United States Persons Outside the United States
       Section 703 governs the targeting of United States persons 
     who are reasonably believed to be outside the United States 
     when the acquisition of foreign intelligence is conducted 
     inside the United States. The authority and procedures of 
     section 703 apply when the acquisition either constitutes 
     electronic surveillance, as defined in Title I of FISA, or is 
     of stored electronic communications or stored electronic 
     data. If the United States person returns to the United 
     States, acquisition under section 703 must cease. The 
     Government may always, however, obtain an order or 
     authorization under another title of FISA.
       The application procedures and provisions for a FISA Court 
     order in sections 703(b) and 703(c) are drawn from Titles I 
     and III of FISA. Key among them is the requirement that the 
     FISA Court determine that there is probable cause to believe 
     that, for the United States person who is the target of the 
     surveillance, the person is reasonably believed to be located 
     outside the United States and is a foreign power or an agent, 
     officer or employee of a foreign power. The inclusion of 
     United States persons who are officers or employees of a 
     foreign power, as well as those who are agents of a foreign 
     power as that term is used in FISA, is intended to permit the 
     type of collection against United States persons outside the 
     United States that has been allowed under existing Executive 
     Branch guidelines. The FISA Court shall also review and 
     approve minimization procedures that will be applicable to 
     the acquisition, and shall order compliance with such 
       As with FISA orders against persons in the United States, 
     FISA orders against United States persons outside of the 
     United States under section 703 may not exceed 90 days and 
     may be renewed for additional 90-day periods upon the 
     submission of renewal applications. Emergency authorizations 
     under section 703 are consistent with the requirements for 
     emergency authorizations in FISA against persons in the 
     United States, as amended by this Act; the Attorney General 
     may authorize an emergency acquisition if an application is 
     submitted to the FISA Court in not more than seven days.
       Section 703(g) is a construction provision that clarifies 
     that, if the Government obtains an order and target a 
     particular United States person in accordance with section 
     703, FISA does not require the Government to seek a court 
     order under any other provision of FISA to target that United 
     States person while that person is reasonably believed to be 
     located outside the United States.
     Section 704. Other Acquisitions Targeting United States 
         Persons Outside the United States
       Section 704 governs other acquisitions that target United 
     States persons who are outside the United States. Sections 
     702 and 703 address acquisitions that constitute electronic 
     surveillance or the acquisition of stored electronic 
     communications. In contrast, as provided in section 
     704(a)(2), section 704 addresses any targeting of a United 
     States person outside of the United States under 
     circumstances in which that person has a reasonable 
     expectation of privacy and a warrant would be required if the 
     acquisition occurred within the United States. It thus covers 
     not only communications intelligence, but, if it were to 
     occur, the physical search of a home, office, or business of 
     a United States person by an element of the United States 
     intelligence community, outside of the United States.
       Pursuant to section 704(a)(3), if the targeted United 
     States person is reasonably believed to be in the United 
     States while an order under section 704 is in effect, the 
     acquisition against that person shall cease unless authority 
     is obtained under another applicable provision of FISA. 
     Likewise, the Government may not use section 704 to authorize 
     an acquisition of foreign intelligence inside the United 
       Section 704(b) describes the application to the FISA Court 
     that is required. For an order under section 704(c), the FISA 
     Court must determine that there is probable cause to believe 
     that the United States person who is the target of the 
     acquisition is reasonably believed to be located outside the 
     United States and is a foreign power, or an agent, officer or 
     employee of a foreign power. An order is valid for a period 
     not to exceed 90 days, and may be renewed for additional 90-
     day periods upon submission of renewal applications meeting 
     application requirements.
       Because an acquisition under section 704 is conducted 
     outside the United States, or is otherwise not covered by 
     FISA, the FISA Court is expressly not given jurisdiction to 
     review the means by which an acquisition under this section 
     may be conducted. Although the FISA Court's review is limited 
     to determinations of probable cause, section 704 anticipates 
     that any acquisition conducted pursuant to a section 704 
     order will in all other respects be conducted in compliance 
     with relevant regulations and Executive Orders governing the 
     acquisition of foreign intelligence outside the United 
     States, including Executive Order 12333 or any successor 
     Section 705. Joint Applications and Concurrent Authorizations
       Section 705 provides that if an acquisition targeting a 
     United States person under section 703 or 704 is proposed to 
     be conducted both inside and outside the United States, a 
     judge of the FISA Court may issue simultaneously, upon the 
     request of the Government in a joint application meeting the 
     requirements of sections 703 and 704, orders under both 
     sections as appropriate. If an order authorizing electronic 
     surveillance or physical search has been obtained under 
     section 105 or section 304, and that order is still in 
     effect, the Attorney General may authorize, without an order 
     under section 703 or 704, the targeting of that United States 
     person for the purpose of acquiring foreign intelligence 
     information while such person is reasonably believed to be 
     located outside the United States.
     Section 706. Use of Information Acquired Under Title VII
       Section 706 fills a void that has existed under the Protect 
     America Act which had contained no provision governing the 
     use of acquired intelligence. Section 706(a) provides that 
     information acquired from an acquisition conducted under 
     section 702 shall be deemed to be information acquired from 
     an electronic surveillance pursuant to Title I of FISA for 
     the purposes of section 106 of FISA, which is the provision 
     of Title I of FISA that governs public disclosure or use in 
     criminal proceedings. The one exception is for subsection (j) 
     of section 106, as the notice provision in that subsection, 
     while manageable in individual Title I proceedings, would 
     present a difficult national security question when applied 
     to a Title VII acquisition. Section 706(b) also provides that 
     information acquired from an acquisition conducted under 
     section 703 shall be deemed to be information acquired from 
     an electronic surveillance pursuant to Title I of FISA for 
     the purposes of section 106 of FISA; however, the notice 
     provision of subsection (j) applies. Section 706 ensures that 
     a uniform standard for the types of information is acquired 
     under the new title.
     Section 707. Congressional Oversight
       Section 707 provides for additional congressional oversight 
     of the implementation of Title VII. The Attorney General is 
     to fully inform ``in a manner consistent with national 
     security'' the congressional intelligence and judiciary 
     committees about implementation of the Act at least 
     semiannually. Each report is to include any certifications 
     made under section 702, the reasons for any determinations 
     made under section 702(c)(2), any directives issued during 
     the reporting period, a description of the judicial review 
     during the reporting period to include a copy of any order or 
     pleading that contains a significant legal interpretation of 
     section 702, incidents of noncompliance and procedures to 
     implement the section. With respect to sections 703 and 704, 
     the report must contain the number of applications made for 
     orders under each section and the number of such orders 
     granted, modified and denied, as well as the number of 
     emergency authorizations made pursuant to each section and 
     the subsequent orders approving or denying the relevant 
     application. In keeping the congressional intelligence 
     committees fully informed, the Attorney General should 
     provide no less information than has been provided in the 
     past in keeping the committees fully and currently informed.
     Section 708. Savings Provision
       Section 708 provides that nothing in Title VII shall be 
     construed to limit the authority of the Government to seek an 
     order or authorization under, or otherwise engage in any 
     activity that is authorized under, any other title of FISA. 
     This language is designed to ensure that Title VII cannot be 
     interpreted to prevent the Government from submitting 
     applications and seeking orders under other titles of FISA.
     Section 101(b). Table of Contents
       Section 101(b) of the bill amends the table of contents in 
     the first section of FISA.
     Subsection 101(c). Technical and Conforming Amendments
       Section 101(c) of the bill provides for technical and 
     conforming amendments in Title 18 of the United States Code 
     and in FISA.
     Section 102. Statement of Exclusive Means by which Electronic 
         Surveillance and Interception of Certain Communications 
         May Be Conducted
       Section 102(a) amends Title I of FISA by adding a new 
     Section 112 of FISA. Under the heading of ``Statement of 
     Exclusive Means by which Electronic Surveillance and 
     Interception of Certain Communications May Be Conducted,'' 
     the new section 112(a) states: ``Except as provided in 
     subsection (b), the procedures of chapters 119, 121 and 
     126 of Title 18, United States Code, and this Act shall be 
     the exclusive means by which electronic surveillance and 
     the interception of domestic wire, oral, or electronic 
     communication may be conducted.'' New section 112(b) of 
     FISA provides that only an express statutory authorization 
     for electronic surveillance or the interception of 
     domestic wire, oral, or electronic communications, other 
     than as an amendment to FISA or chapters 119, 121, or 206 
     of Title 18 shall constitute an additional exclusive means 
     for the

[[Page S6133]]

     purpose of subsection (a). The new section 112 is based on 
     a provision which Congress enacted in 1978 as part of the 
     original FISA that is codified in section 2511(2)(f) of 
     Title 18, United States Code, and which will remain in the 
     U.S. Code.
       Section 102(a) strengthens the statutory provisions 
     pertaining to electronic surveillance and interception of 
     certain communications to clarify the express intent of 
     Congress that these statutory provisions are the exclusive 
     means for conducting electronic surveillance and interception 
     of certain communications. With the absence of reference to 
     the Authorization for Use of Military Force, Pub. L. 107-40, 
     (September 18, 2001) (``AUMF''), Congress makes clear that 
     this AUMF or any other existing statute cannot be used in the 
     future as the statutory basis for circumventing FISA. Section 
     102(a) is intended to ensure that additional exclusive means 
     for surveillance or interceptions shall be express statutory 
       In accord with section 102(b) of the bill, section 109 of 
     FISA that provides for criminal penalties for violations of 
     FISA, is amended to implement the exclusivity requirement 
     added in section 112 by making clear that the safe harbor to 
     FISA's criminal offense provision is limited to statutory 
     authorizations for electronic surveillance or the 
     interception of domestic wire, oral, or electronic 
     communications which are pursuant to a provision of FISA, one 
     of the enumerated chapters of the criminal code, or a 
     statutory authorization that expressly provides an additional 
     exclusive means for conducting the electronic surveillance. 
     By virtue of the cross-reference in section 110 of FISA to 
     section 109, that limitation on the safe harbor in section 
     109 applies equally to section 110 on civil liability for 
     conducting unlawful electronic surveillance.
       Section 102(c) requires that when a certification for 
     assistance to obtain foreign intelligence is based on 
     statutory authority, the certification provided to an 
     electronic communication service provider is to include the 
     specific statutory authorization for the request for 
     assistance and certify that the statutory requirements have 
     been met. This provision is designed to assist electronic 
     communication service providers in understanding the legal 
     basis for any government requests for assistance.
       In the section-by-section analysis of S. 2248, the report 
     of the Select Committee on Intelligence (S. Rep. No. 110-209, 
     at 18) described and incorporated the discussion of 
     exclusivity in the 1978 conference report on the original 
     Foreign Intelligence Surveillance Act, in particular the 
     conferees' description of the Youngstown Sheet and Tube Co. 
     v. Sawyer, 343 U.S. 579, 637 (1952) and the application of 
     the principles described there to the current legislation. 
     That full discussion should be deemed incorporated in this 
     section-by-section analysis.
     Section 103. Submittal to Congress of Certain Court Orders 
         under the Foreign Intelligence Surveillance Act of 1978
       Section 6002 of the Intelligence Reform Act and Terrorism 
     Prevention Act of 2004 (Pub. L. 108-458), added a Title VI to 
     FISA that augments the semiannual reporting obligations of 
     the Attorney General to the intelligence and judiciary 
     committees of the Senate and House of Representatives. Under 
     section 6002, the Attorney General shall report a summary of 
     significant legal interpretations of FISA in matters before 
     the FISA Court or Foreign Intelligence Surveillance Court of 
     Review. The requirement extends to interpretations presented 
     in applications or pleadings filed with either court by the 
     Department of Justice. In addition to the semiannual summary, 
     the Department of Justice is required to provide copies of 
     court decisions, but not orders, which include significant 
     interpretations of FISA. The importance of the reporting 
     requirement is that, because the two courts conduct their 
     business in secret, Congress needs the reports to know how 
     the law it has enacted is being interpreted.
       Section 103 improves the Title VI reporting requirements in 
     three ways. First, as significant legal interpretations may 
     be included in orders as well as opinions, section 103 
     requires that orders also be provided to the committees. 
     Second, as the semiannual report often takes many months 
     after the end of the semiannual period to prepare, section 
     103 accelerates provision of information about significant 
     legal interpretations by requiring the submission of such 
     decisions, orders, or opinions within 45 days. Finally, 
     section 103 requires that the Attorney General shall submit a 
     copy of any such decision, order, or opinion, and any 
     pleadings, applications, or memoranda of law associated with 
     such decision, order, or opinion, from the period five years 
     preceding enactment of the bill that has not previously been 
     submitted to the congressional intelligence and judiciary 

    Overview of Sections 104 through Section 109. FISA Streamlining

       Sections 104 through 109 amend various sections of FISA for 
     such purposes as reducing a paperwork requirement, modifying 
     time requirements, or providing additional flexibility in 
     terms of the range of Government officials who may authorize 
     FISA actions. Collectively, these amendments are described as 
     streamlining amendments. In general, they are intended to 
     increase the efficiency of the FISA process without depriving 
     the FISA Court of the information it needs to make findings 
     required under FISA.
     Section 104. Applications for Court Orders
       Section 104 of the bill strikes two of the eleven 
     paragraphs on standard information in an application for a 
     surveillance order under section 104 of FISA, either because 
     the information is provided elsewhere in the application 
     process or is not needed.
       In various places, FISA has required the submission of 
     ``detailed'' information, as in section 104 of FISA, ``a 
     detailed description of the nature of the information sought 
     and the type of communications or activities to be subjected 
     to the surveillance.'' The DNI requested legislation that 
     asked that ``summary'' be substituted for ``detailed'' for 
     this and other application requirements, in order to reduce 
     the length of FISA applications. In general, the bill 
     approaches this by eliminating the mandate for ``detailed'' 
     descriptions, leaving it to the FISA Court and the Government 
     to work out the level of specificity needed by the FISA Court 
     to perform its statutory responsibilities. With respect to 
     one item of information, ``a statement of the means by which 
     the surveillance will be effected,'' the bill modifies the 
     requirement by allowing for ``a summary statement.''
       In aid of flexibility, section 104 increases the number of 
     individuals who may make FISA applications by allowing the 
     President to designate the Deputy Director of the Federal 
     Bureau of Investigation (``FBI'') as one of those 
     individuals. This should enable the Government to move more 
     expeditiously to obtain certifications when the Director of 
     the FBI is away from Washington or otherwise unavailable.
       Subsection (b) of section 104 of FISA is eliminated as 
     obsolete in light of current applications. The Director of 
     the Central Intelligence Agency is added to the list of 
     officials who may make a written request to the Attorney 
     General to personally review a FISA application as the head 
     of the CIA had this authority prior to the establishment of 
     the Office of the Director of National Intelligence.
     Section 105. Issuance of an Order
       Section 105 strikes from Section 105 of FISA several 
     unnecessary or obsolete provisions. Section 105 strikes 
     subsection (c)(1)(F) of Section 105 of FISA which requires 
     minimization procedures applicable to each surveillance 
     device employed because Section 105(c)(2)(A) requires each 
     order approving electronic surveillance to direct the 
     minimization procedures to be followed.
       Subsection (a)(6) reorganizes, in more readable form, the 
     emergency surveillance provision of section 105(f), now 
     redesignated section 105(e), with a substantive change of 
     extending from 3 to 7 days the time by which the Attorney 
     General must apply for and obtain a court order after 
     authorizing an emergency surveillance. The purpose of the 
     change is to help make emergency authority a more practical 
     tool while keeping it within the parameters of FISA.
       Subsection (a)(7) adds a new paragraph to section 105 of 
     FISA to require the FISA Court, on the Government's request, 
     when granting an application for electronic surveillance, to 
     authorize at the same time the installation and use of pen 
     registers and trap and trace devices. This will save the 
     paperwork that had been involved in making two applications.
     Section 106. Use of Information
       Section 106 amends section 106(i) of FISA with regard to 
     the limitations on the use of unintentionally acquired 
     information. Currently, section 106(i) of FISA provides that 
     unintentionally acquired radio communication between persons 
     located in the United States must be destroyed unless the 
     Attorney General determines that the contents of the 
     communications indicates a threat of death or serious bodily 
     harm to any person. Section 106 of the bill amends subsection 
     106(i) of FISA by making it technology neutral on the 
     principle that the same rule for the use of information 
     indicating threats of death or serious harm should apply no 
     matter how the communication is transmitted.
     Section 107. Amendments for Physical Searches
       Section 107 makes changes to Title III of FISA: changing 
     applications and orders for physical searches to correspond 
     to changes in sections 104 and 105 on reduction of some 
     application paperwork; providing the FBI with administrative 
     flexibility in enabling its Deputy Director to be a 
     certifying officer; and extending the time, from 3 days to 7 
     days, for applying for and obtaining a court order after 
     authorization of an emergency search.
       Section 303(a)(4)(C), which will be redesignated section 
     303(a)(3)(C), requires that each application for physical 
     search authority state the applicant's belief that the 
     property is ``owned, used, possessed by, or is in transmit to 
     or from'' a foreign power or an agent of a foreign power. In 
     order to provide needed flexibility and to make the provision 
     consistent with electronic surveillance provisions, section 
     107(a)(1)(D) of the bill allows the FBI to apply for 
     authority to search property that also is ``about to be'' 
     owned, used, or possessed by a foreign power or agent of a 
     foreign power, or in transit to or from one.
     Section 108. Amendments for Emergency Pen Registers and Trap 
         and Trace Devices
       Section 108 amends section 403 of FISA to extend from 2 
     days to 7 days the time for applying for and obtaining a 
     court order after an emergency installation of a pen register 
     or trap and trace device. This change harmonizes among FISA's 
     provisions for electronic surveillance, search, and pen 

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     trap and trace authority the time requirements that follow 
     the Attorney General's decision to take emergency action.
     Section 109. Foreign Intelligence Surveillance Court
       Section 109 contains four amendments to section 103 of 
     FISA, which establishes the FISA Court and the Foreign 
     Intelligence Surveillance Court of Review.
       Section 109(a) amends section 103 to provide that judges on 
     the FISA Court shall be drawn from ``at least seven'' of the 
     United States judicial circuits. The current requirement--
     that the eleven judges be drawn from seven judicial circuits 
     (with the number appearing to be a ceiling rather than a 
     floor) has proven unnecessarily restrictive or complicated 
     for the designation of the judges to the FISA Court.
       Section 109(b) amends section 103 to allow the FISA Court 
     to hold a hearing or rehearing of a matter en banc, which is 
     by all the judges who constitute the FISA Court sitting 
     together. The Court may determine to do this on its own 
     initiative, at the request of the Government in any 
     proceeding under FISA, or at the request of a party in the 
     few proceedings in which a private entity or person may be a 
     party, i.e., challenges to document production orders under 
     Title V, or proceedings on the legality or enforcement of 
     directives to electronic communication service providers 
     under Title VII.
       Under section 109(b), en banc review may be ordered by a 
     majority of the judges who constitute the FISA Court upon a 
     determination that it is necessary to secure or maintain 
     uniformity of the court's decisions or that a particular 
     proceeding involves a question of exceptional importance. En 
     banc proceedings should be rare and in the interest of the 
     general objective of fostering expeditious consideration of 
     matters before the FISA Court.
       Section 109(c) provides authority for the entry of stays, 
     or the entry of orders modifying orders entered by the FISA 
     Court or the Foreign Intelligence Surveillance Court of 
     Review, pending appeal or review in the Supreme Court. This 
     authority is supplemental to, and does not supersede, the 
     specific provision in section 702(i)(4)(B) that acquisitions 
     under Title VII may continue during the pendency of any 
     rehearing en banc and appeal to the Court of Review subject 
     to the requirement for a determination within 60 days under 
     section 702(i)(4)(C).
       Section 109(d) provides that nothing in FISA shall be 
     construed to reduce or contravene the inherent authority of 
     the FISA Court to determine or enforce compliance with any 
     order of that court or with a procedure approved by it.
     Section 110. Weapons of Mass Destruction
       Section 110 amends the definitions in FISA of foreign power 
     and agent of a foreign power to include individuals who are 
     not United States persons and entities not substantially 
     composed of United States persons that are engaged in the 
     international proliferation of weapons of mass destruction. 
     Section 110 also adds a definition of weapon of mass 
     destruction to the Act that defines weapons of mass 
     destruction to cover explosive, incendiary, or poison gas 
     devices that are designed, intended to, or have the 
     capability to cause a mass casualty incident or death, and 
     biological, chemical and nuclear weapons that are designed, 
     intended to, or have the capability to cause illness or 
     serious bodily injury to a significant number of persons. 
     Section 110 also makes corresponding, technical and 
     conforming changes to FISA.

  Title II. Protections for Electronic Communication Service Providers

       This title establishes a new Title VIII of FISA. The title 
     addresses liability relief for electronic communication 
     service providers who have been alleged in various civil 
     actions to have assisted the U.S. Government between 
     September 11, 2001, and January 17, 2007, when the Attorney 
     General announced the termination of the Terrorist 
     Surveillance Program. In addition, Title VIII contains 
     provisions of law intended to implement statutory defenses 
     for electronic communication service providers and others who 
     assist the Government in accordance with precise, existing 
     legal requirements, and for providing for federal preemption 
     of state investigations. The liability protection provisions 
     of Title VIII are not subject to sunset.
     Section 801. Definitions
       Section 801 establishes definitions for Title VIII. Several 
     are of particular importance.
       The term ``assistance'' is defined to mean the provision 
     of, or the provision of access to, information, facilities, 
     or another form of assistance. The word ``information'' is 
     itself described in a parenthetical to include communication 
     contents, communication records, or other information 
     relating to a customer or communications. ``Contents'' is 
     defined by reference to its meaning in Title I of FISA. By 
     that reference, it includes any information concerning the 
     identity of the parties to a communication or the existence, 
     substance, purport, or meaning of it.
       The term ``civil action'' is defined to include a ``covered 
     civil action.'' Thus, ``covered civil actions'' are a subset 
     of civil actions, and everything in new Title VIII that is 
     applicable generally to civil actions is also applicable to 
     ``covered civil actions.'' A ``covered civil action'' has two 
     key elements. It is defined as a civil action filed in a 
     federal or state court which (1) alleges that an electronic 
     communication service provider (a defined term) furnished 
     assistance to an element of the intelligence community and 
     (2) seeks monetary or other relief from the electronic 
     communication service provider related to the provision of 
     the assistance. Both elements must be present for the lawsuit 
     to be a covered civil action.
       The term ``person'' (the full universe of those protected 
     by section 802) is necessarily broader than the definition of 
     electronic communication service provider. The aspects of 
     Title VIII that apply to those who assist the Government in 
     accordance with precise, existing legal requirements apply to 
     all who may be ordered to provide assistance under FISA, such 
     as custodians of records who may be directed to produce 
     records by the FISA Court under Title V of FISA or landlords 
     who may be required to provide access under Title I or III 
     of FISA, not just to electronic communication service 
     Section 802. Procedures for Implementing Statutory Defenses
       Section 802 establishes procedures for implementing 
     statutory defenses. Notwithstanding any other provision of 
     law, no civil action may lie or be maintained in a federal or 
     state court against any person for providing assistance to an 
     element of the intelligence community, and shall be promptly 
     dismissed, if the Attorney General makes a certification to 
     the district court in which the action is pending. (If an 
     action had been commenced in state court, it would have to be 
     removed, pursuant to section 802(g) to a district court, 
     where a certification under section 802 could be filed.) The 
     certification must state either that the assistance was not 
     provided (section 802(a)(5)) or, if furnished, that it was 
     provided pursuant to specific statutory requirements 
     (sections 802(a)(1-4)). Three of these underlying 
     requirements, which are specifically described in section 802 
     (sections 802(a)(1-3)), come from existing law. They include: 
     an order of the FISA Court directing assistance, a 
     certification in writing under sections 2511(2)(a)(ii)(B) or 
     2709(b) of Title 18, or directives to electronic 
     communication service providers under particular sections of 
     FISA or the Protect America Act.
       The Attorney General may only make a certification under 
     the fourth statutory requirement, section 802(a)(4), if the 
     civil action is a covered civil action (as defined in section 
     801(5)). To satisfy the requirements of section 802(a)(4), 
     the Attorney General must certify first that the assistance 
     alleged to have been provided by the electronic communication 
     service provider was in connection with an intelligence 
     activity involving communications that was (1) authorized by 
     the President between September 11, 2001 and January 17, 2007 
     and (2) designed to detect or prevent a terrorist attack or 
     preparations for one against the United States. In addition, 
     the Attorney General must also certify that the assistance 
     was the subject of a written request or directive, or a 
     series of written requests or directives, from the Attorney 
     General or the head (or deputy to the head) of an element of 
     the intelligence community to the electronic communication 
     service provider indicating that the activity was (1) 
     authorized by the President and (2) determined to be lawful. 
     The report of the Select Committee on Intelligence contained 
     a description of the relevant correspondence provided to 
     electronic communication service providers (S. Rep. No. 110-
     209, at 9).
       The district court must give effect to the Attorney 
     General's certification unless the court finds it is not 
     supported by substantial evidence provided to the court 
     pursuant to this section. In its review, the court may 
     examine any relevant court order, certification, written 
     request or directive submitted by the Attorney General 
     pursuant to subsection (b)(2) or by the parties pursuant to 
     subsection (d). Section 802 is silent on the nature of any 
     additional materials that the Attorney General may submit 
     beyond those listed in subsection (b)(2) if the Attorney 
     General determines they are necessary to provide substantial 
     evidence to support the certification, such as if the 
     Attorney General certifies that a person did not provide the 
     alleged assistance.
       If the Attorney General files a declaration that disclosure 
     of a certification or supplemental materials would harm 
     national security, the court shall review the certification 
     and supplemental materials in camera and ex parte, which 
     means with only the Government present. A public order 
     following that review shall be limited to a statement as to 
     whether the case is dismissed and a description of the legal 
     standards that govern the order, without disclosing the basis 
     for the certification of the Attorney General. The purpose of 
     this requirement is to protect the classified national 
     security information involved in the identification of 
     providers who assist the Government. A public order shall not 
     disclose whether the certification was based on an order, 
     certification, or directive, or on the ground that the 
     electronic communication service provider furnished no 
     assistance. Because the district court must find that the 
     certification--including a certification that states that a 
     party did not provide the alleged assistance--is supported by 
     substantial evidence in order to dismiss a case, an order 
     failing to dismiss a case is only a conclusion that the 
     substantial evidence test has not been met. It does not 
     indicate whether a particular provider assisted the 
       Subsection (d) makes clear that any plaintiff or defendant 
     in a civil action may submit any relevant court order, 
     certification, written request, or directive to the district 
     court for review and be permitted to participate in the 
     briefing or argument of any legal

[[Page S6135]]

     issue in a judicial proceeding conducted pursuant to this 
     section, to the extent that such participation does not 
     require the disclosure of classified information to such 
     party. The authorities of the Attorney General under section 
     802 are to be performed only by the Attorney General, the 
     Acting Attorney General, or the Deputy Attorney General.
       In adopting the portions of section 802 that allow for 
     liability protection for those electronic communication 
     service providers who may have participated in the program of 
     intelligence activity involving communications authorized by 
     the President between September 11, 2001, and January 17, 
     2007, the Congress makes no statement on the legality of the 
     program. This is in accord with the statement in the report 
     of the Senate Intelligence Committee that ``Section 202 [as 
     the immunity provision was then numbered] makes no assessment 
     about the legality of the President's program.'' S. Rep. No. 
     110-209, at 9.
     Section 803. Preemption of State Investigations
       Section 803 addresses actions taken by a number of state 
     regulatory commissions to force disclosure of information 
     concerning cooperation by state regulated electronic 
     communication service providers with U.S. intelligence 
     agencies. Section 803 preempts these state actions and 
     authorizes the United States to bring suit to enforce the 
     Section 804. Reporting
       Section 804 provides for oversight of the implementation of 
     Title VIII. On a semiannual basis, the Attorney General is to 
     provide to the appropriate congressional committees a report 
     on any certifications made under section 802, a description 
     of the judicial review of the certifications made under 
     section 802, and any actions taken to enforce the provisions 
     of section 803.
     Section 202. Technical Amendments
       Section 202 amends the table of contents of the first 
     section of FISA.

                 Title III. Review of Previous Actions

       Title III directs the Inspectors General of the Department 
     of Justice, the Office of the Director of National 
     Intelligence, the Department of Defense, the National 
     Security Agency, and any other element of the intelligence 
     community that participated in the President's surveillance 
     program, defined in the title to mean the intelligence 
     activity involving communications that was authorized by the 
     President during the period beginning on September 11, 2001, 
     and ending on January 17, 2007, to complete a comprehensive 
     review of the program with respect to the oversight authority 
     and responsibility of each such inspector general.
       The review is to include: all of the facts necessary to 
     describe the establishment, implementation, product, and use 
     of the product of the program; access to legal reviews of the 
     program and information about the program; communications 
     with, and participation of, individuals and entities in the 
     private sector related to the program; interaction with the 
     FISA Court and transition to court orders related to the 
     program; and any other matters identified by any such 
     inspector general that would enable that inspector general 
     complete a review of the program with respect to the 
     inspector general's department or element.
       The inspectors general are directed to work in conjunction, 
     to the extent practicable, with other inspectors general 
     required to conduct a review, and not unnecessarily duplicate 
     or delay any reviews or audits that have already been 
     completed or are being undertaken with respect to the 
     program. In addition, the Counsel of the Office of 
     Professional Responsibility of the Department of Justice is 
     directed to provide the report of any investigation of that 
     office relating to the program, including any investigation 
     of the process through which the legal reviews of the program 
     were conducted and the substance of such reviews, to the 
     Inspector General of the Department of Justice, who shall 
     integrate the factual findings and conclusions of such 
     investigation into its review.
       The inspectors general shall designate one of the Senate 
     confirmed inspectors general required to conduct a review to 
     coordinate the conduct of the reviews and the preparation of 
     the reports. The inspectors general are to submit an interim 
     report within sixty days to the appropriate congressional 
     committees on their planned scope of review. The final report 
     is to be completed no later than one year after enactment and 
     shall be submitted in unclassified form, but may include a 
     classified annex.
       The Congress is aware that the Inspector General of the 
     Department of Justice has undertaken a review of the program. 
     This review should serve as a significant part of the basis 
     for meeting the requirements of this title. In no event is 
     this title intended to delay or duplicate the investigation 
     completed to date or the issuance of any report by the 
     Inspector General of the Department of Justice.

                       Title IV. Other Provisions

     Section 401. Severability
       Section 401 provides that if any provision of this bill or 
     its application is held invalid, the validity of the 
     remainder of the Act and its application to other persons or 
     circumstances is unaffected.
     Section 402. Effective Date
       Section 402 provides that except as provided in the 
     transition procedures (section 404 of the title), the 
     amendments made by the bill shall take effect immediately.
     Section 403. Repeals
       Section 403(a) provides for the repeal of those sections of 
     FISA enacted as amendments to FISA by the Protect America 
     Act, except as provided otherwise in the transition 
     procedures of section 404, and makes technical and conforming 
       Section 403(b) provides for the sunset of the FISA 
     Amendments Act on December 31, 2012, except as provided in 
     section 404 of the bill. This date ensures that the 
     amendments by the Act will be reviewed during the next 
     presidential administration. The subsection also makes 
     technical and conforming amendments.
     Section 404. Transition Procedures
       Section 404 establishes transition procedures for the 
     Protect America Act and the Foreign Intelligence Surveillance 
     Act Amendments of 2008.
       Subsection (a)(1) continues in effect orders, 
     authorizations, and directives issued under FISA, as amended 
     by section 2 of the Protect America Act, until the expiration 
     of such order, authorization or directive.
       Subsection (a)(2) sets forth the provisions of FISA and the 
     Protect America Act that continue to apply to any acquisition 
     conducted under such Protect America Act order, authorization 
     or directive. In addition, subsection (a) clarifies the 
     following provisions of the Protect America Act: the 
     protection from liability provision of subsection (l) of 
     Section 105B of FISA as added by section 2 of the Protect 
     America Act; jurisdiction of the FISA Court with respect to a 
     directive issued pursuant to the Protect America Act, and the 
     Protect America Act reporting requirements of the Attorney 
     General and the DNI. Subsection (a) is made effective as of 
     the date of enactment of the Protect America Act (August 5, 
     2007). The purpose of these clarifications and the effective 
     date for them is to ensure that there are no gaps in the 
     legal protections contained in that act, including for 
     authorized collection following the sunset of the Protect 
     America Act, notwithstanding that its sunset provision was 
     only extended once until February 16, 2008. Additionally, 
     subsection (a)(3) fills a void in the Protect America Act and 
     applies the use provisions of section 106 of FISA to 
     collection under the Protect America Act, in the same manner 
     that section 706 does for collection under Title VII.
       In addition, subsection (a)(7) makes clear that if the 
     Attorney General and the DNI seek to replace an authorization 
     made pursuant to the Protect America Act with an 
     authorization made under section 702, as added by this bill, 
     they are, to the extent practicable, to submit a 
     certification to the FISA Court at least 30 days in advance 
     of the expiration of such authorization. The authorizations, 
     and any directives issued pursuant to the authorization, are 
     to remain in effect until the FISA Court issues an order with 
     respect to that certification.
       Subsection (b) provides similar treatment for any order of 
     the FISA Court issued under Title VII of this bill in effect 
     on December 31, 2012.
       Subsection (c) provides transition procedures for the 
     authorizations in effect under section 2.5 of Executive Order 
     12333. Those authorizations shall continue in effect until 
     the earlier of the date that authorization expires or the 
     date that is 90 days after the enactment of this Act. This 
     transition provision is particularly applicable to the 
     transition to FISA Court orders that will occur as a result 
     of sections 703 and 704 of FISA, as added by this bill.

  Mr. ROCKEFELLER. Before laying out where this bill improves upon the 
Senate-passed bill--and it does--let me first restate how proud I am of 
our efforts in February that laid the foundation for the final action 
we will soon take. Our Senate bill established the framework for a 
judicial review of the targeting and minimization procedures which are 
at the heart of the present compromise. It also established clear 
authority and procedures for individual judicial orders where there is 
probable cause for targeting Americans overseas. This may long be 
regarded as the single most important innovation of the act we will 
soon pass.
  Additionally, during debate on our Senate bill, we identified other 
needed improvements that have been addressed in this compromise, 
including strengthening exclusivity, something Senator Feinstein was a 
great advocate of, and also a shorter sunset, something Senator Cardin 
wanted to see happen; that is, when the bill sunsets, and it will end 
before the end of the next administration.
  The bottom line is, we started with a good product in February and, 
through hard work and compromise with all parties in both Houses, we 
have made it even stronger. And we have. We have. We are all slightly 
aghast at what we were able to do. So let me mention a few of the key 
features in this new compromise.
  First, the agreement makes changes in the provisions related to 
targeting foreigners overseas to increase protections for Americans. It 
requires the

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FISA Court to approve targeting and minimization procedures before 
collections begin in virtually all instances. The Attorney General and 
the Director of National Intelligence can move forward without a court 
order only in what will be extremely rare instances, if emergency 
circumstances exist. And there is a way that is done which is time 
minimized, a total of 37 days, but it doesn't happen.
  It preserves the definition of ``electronic surveillance.'' That is 
important. It doesn't sound very interesting, but it is important. It 
preserves that definition found in title I of FISA to ensure that there 
are no unintended consequences--that sounds like gobbledygook, but it 
isn't--relating to when a warrant must be obtained under FISA or how 
information obtained using FISA can be used. In other words, we leave 
the definition of ``telecommunications'' exactly as it is. We do not 
change it. If there is to be a change, then there must be legislative 
action to expand or make that change.
  But unintended consequences is when something you do in one bill 
affects something that happened in another bill, and you just do not 
know it at the time you are doing it. You have to be very careful about 
that. So that is why we did that.
  Second, the agreement contains additional measures compared to the 
Senate bill to improve oversight and accountability--the two greatest 
needs we have in the Congress and for the administration.
  It shortens the sunset of the legislation to December 31, 2012, to 
ensure the FISA modernization law we are going to pass is reviewed in 
the next administration.
  It requires a comprehensive review by multiple inspectors general of 
the President's warrantless surveillance program to ensure Congress has 
a complete set of facts about the program. We will have them. We will 
be informed. The public will be informed about that.
  Third, the agreement assures that no past or future congressional 
authorization for the use of military force may be used to justify the 
conduct of warrantless surveillance electronically, unless Congress 
explicitly provides that can happen. That means the President cannot 
ever do what he did again. No other President can ever do that. FISA 
rules, and only the Congress can make the change.
  With enactment of this agreement, there will be no question that 
Congress intends that only an express statutory authorization for 
electronic surveillance or interception may constitute an additional 
exclusive means for that surveillance or interception. It is logical, 
and it is necessary.
  This is reinforced by the clarification that criminal and civil 
penalties can be imposed for any electronic surveillance that is not 
conducted in accordance with FISA or specifically listed provisions of 
title XVIII. We are prepared to do criminal, civil fines. It is in the 
bill. It will happen if somebody tries to do something.
  Finally, with respect to the liability protection provisions of title 
II, the new language is improved in a number of ways. The agreement 
makes clear that the district court has the authority to review the 
documents provided to the companies to determine whether the Attorney 
General has met the statutory requirements for the certification under 
the statute.
  In addition, the plaintiffs are given their fair day in court in our 
bill, as the parties to the litigation are explicitly provided the 
opportunity to brief the legal and constitutional issues before the 
court, to the court. And the district court, in deciding the question, 
must go beyond whether the Attorney General abused his discretion in 
preparing his certification to seek the dismissal of a lawsuit. Under 
the agreement, the district court must decide whether the Attorney 
General's certification is supported by ``substantial evidence.'' It is 
a good bar.
  These are important additions and clarifications, and I hope many of 
my colleagues will recognize how far we have come. Remember, this is a 
bill that the House would not even vote on a couple of months ago. They 
would not even vote on it. So we just went over to them, to Steny 
Hoyer, who deserves all praise for being an unbelievable moderator, 
bringer-together of opinions and people and a lot of people who are 
reluctant over there about doing anything, and gradually, through 
compromise, through extensive consultation, worked it out so they could 
agree on the bill. Indeed, Speaker Pelosi went to the floor of the 
House and spoke as to why she was going to vote for the bill--which she 
  Now, before I conclude, I must say a few words about all the people--
and spare me on this, I say to the Presiding Officer--who worked 
together to make this happen.
  House majority leader Steny Hoyer is--I have down here in my text ``a 
near saint.'' I have decided that is in extremis. I think he is 
extraordinary--extraordinary. He deserves tremendous credit for his 
ability to bring people together with strongly divergent views and not 
give up until a compromise is achieved. He has everything on his plate, 
but he always seemed to have time for--he kept saying he was not really 
schooled in this, but he knew everything that was going on.
  Vice Chairman Bond and House Minority Whip Blunt also deserve our 
thanks and our praise for their hard work and unending commitment. The 
other leaders of the House and Senate Intelligence and Judiciary 
Committees--Silvestre Reyes, Peter Hoekstra, John Conyers, Lamar Smith, 
and on our side Pat Leahy and Arlen Specter--not all of whom have or 
will support the final bill--also deserve thanks for their valuable 
contributions for making the legislation a much better product.
  My own leader, Harry Reid, deserves special credit for insisting that 
we persevere on protecting national security and civil liberties, even 
though at times he believed he himself could not support our ultimate 
compromise. I do not know what that result will be, but he has been 
terrific in pushing us.
  In addition, we would not have reached this critical juncture without 
the unlimited support of the Director of National Intelligence, Mike 
McConnell, Attorney General Michael Mukasey, and the dedicated staff of 
the DNI, DOJ, and NSA counsel, in particular Ben Powell, Brett Gerry, 
John Demers, Vito Potenza, and Chris Thuma. I did not think I would be 
saying those words, but I am saying them, and I do believe them deeply. 
All of those individuals worked with us for months on this issue, 
putting in long hours, even at times when there was not light at the 
end of the tunnel.
  As we know all too well, the legislative efforts of the House and the 
Senate would come to a screeching halt if we were forced to operate 
without the seamless efforts of our staffs.
  I would like to thank my exceptionally talented staff: Andy Johnson, 
Mike Davidson, Alissa Starzak, Chris Healey, and Melvin Dubee--all of 
whom brought an enormous amount of expertise, creativity, and 
perseverance to the table.
  I want to single out Mike Davidson. Mike Davidson is a very smart 
lawyer. He has this way of when everything is collapsing all about 
him--it is kind of a let's come and reason together. Let's be 
practical. He is such a good person and so smart and so respected for 
what he knows that people follow his lead. It was in many ways because 
of him that a lot of our problems got solved. He would not quit on 
them, and he would keep saying: Now, let's deal with this practically. 
And he uses his hands just in that manner. It worked because we have a 
  I would also like to thank Mariah Sixkiller, Brian Diffel, Joe Onek, 
Mike Sheehy, Jeremy Bash, Wyndee Parker, Eric Greenwald, Chris Donesa, 
Lou DeBaca, Perry Apelbaum, Ted Kalo, and Caroline Lynch in the House 
of Representatives; and in the Senate, Louis Tucker, Jack Livingston, 
Kathleen Rice, Mary DeRosa, Zulima Espinel, Matt Solomon, Nick Rossi, 
Ron Weich, Serena Hoy, and Marcel Lettre for their efforts.
  I may have left somebody out. But I think the Presiding Officer 
thinks I have probably done enough. It is heartfelt, and if you have 
been through the process you really feel what people put into it and 
what they give up.
  Madam President, this is a very proud day for the Senate, for 
national security and civil liberties, and for the Congress in general. 
I would venture to say this may be the most important bill we will pass 
this year. We have proven that compromise is not a lost virtue and that 
good, sound policy is not only possible, it is achievable.

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  I thank the Presiding Officer and yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.