[Congressional Record: June 26, 2008 (Senate)]
[Page S6174]                    


  Mr. McCONNELL. Mr. President, last April the Director of National 
Intelligence, ADM Mike McConnell, warned Congress about a serious flaw 
in the laws that govern our Nation's terror-fighting capabilities. New 
technologies had made our old electronic surveillance program 
dangerously out of date, he said, causing us to miss substantial 
amounts of vital intelligence on foreign terror suspects overseas.
  In reaction to these concerns, the Senate passed and the President 
signed a temporary measure, the Protect America Act. The Protect 
America Act lived up to its name. We are told that from the time of its 
passage last August until its expiration in February, it allowed us to 
collect significant intelligence on terrorists and has been critical in 
protecting the United States from harm. But the Protect America Act had 
a signal failure: the telecom companies that may have helped prevent 
terrorist attacks were not protected from potentially crippling 
lawsuits. This was no small thing since without these companies, 
America wouldn't even have an effective surveillance program. 
Bankrupting the telecoms would be like outlawing fire hydrants--you 
could have the best firetrucks and the best firemen in the world, but 
you would still be incapable of putting out fires.
  So after several months of new negotiations, the House finally 
devised and approved last week a revision of the original surveillance 
law that addresses the DNI's major concerns, including the important 
telecom protection. As the DNI put it in a recent letter endorsing the 
House-passed bill:

       This bill would provide the intelligence community with the 
     tools it needs to collect the foreign intelligence necessary 
     to secure our Nation while protecting the civil liberties of 
     Americans. The bill would also provide the necessary legal 
     protections for those companies sued because they are 
     believed to have helped the government prevent terrorist 
     attacks in the aftermath of September 11. Because this bill 
     accomplishes these two goals, essential to any effort to 
     modernize FISA, we strongly support passage and will 
     recommend the President sign it.

  That is the Director of National Intelligence.
  Passage of this legislation is long overdue. When the Protect America 
Act expired in February, the DNI warned Democratic leaders in the House 
once again about the need for an updated law. Yet House Democrats were 
evidently more concerned about the pressure they were getting from left 
wing groups such as moveon.org. They brushed the DNI's warnings aside 
and refused to take up and pass a bipartisan Senate-passed compromise 
bill that would have easily cleared the House. As a result of 
Democratic intransigence, our intelligence community has been 
handicapped in its ability to acquire new terrorist targets overseas. 
This was grossly irresponsible, and many of us said so at the time.
  Now more than a year after the DNI made his initial plea, House 
Democrats have finally done the right thing. They have acted on the 
DNI's warnings by passing an updated surveillance law that meets his 
original criteria and which meets the criteria Republicans laid out 
during last year's debate--namely, one that gives the intelligence 
community the tools it needs to protect us, which doesn't put the 
telecom companies that made this program possible out of business, and 
which would get a Presidential signature.
  Now it is time for the Senate to take up this bill and pass it 
without any further delay. The bill isn't perfect. I would have 
preferred for the Speaker to allow a vote on the Senate-passed FISA 
bill. But it does meet the DNI's criteria, and therefore its passage 
will mark a serious achievement, though long overdue, in the interest 
of our national security.
  This hard-fought bill represents the epitome of compromise. The 
senior Senator from Missouri should be singled out for his outstanding 
work on this most important piece of legislation. He has done a service 
to the Senate and to the Nation by patiently working all of this out 
over the course of more than a year.
  He was assisted in that effort by very able staff. Louis Tucker, Jack 
Livingston, and Kathleen Rice were invaluable throughout the process, 
to every Senator who was involved in this extremely important debate. 
They also deserve our thanks.
  I will support this bill for all the reasons I have mentioned and 
urge my colleagues to do the same. We must pass this before leaving 
town and not allow it to be held up by yet another Democratic 



[Congressional Record: June 26, 2008 (Senate)]
[Page S6177-S6207]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]


  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will resume consideration of the motion to proceed to H.R. 6304, 
which the clerk will report.
  The legislative clerk read as follows:

       Motion to proceed to Calendar No. 827, H.R. 6304, an Act to 
     amend the Foreign Intelligence Surveillance Act of 1978 to 
     establish a procedure for authorizing certain acquisitions of 
     foreign intelligence, and for other purposes.

  The Senator from Missouri is recognized.
  Mr. BOND. Mr. President, I thank our leaders for getting us on this 
very important bill.
  As we have discussed before, the failure to modernize and authorize 
the Foreign Intelligence Surveillance Act last summer has caused 
serious gaps in our intelligence capability.
  When the Protect America Act that was introduced by our Republican 
leader, Senator McConnell, and me last year finally passed, we put the 
intelligence community back in the business of intercepting critical 
intelligence communications from foreign terrorists talking to each 
other about possible activities in the United States, or against our 
troops and our allies elsewhere, and obviously any of those who were 
threatening the United States.
  I can tell you, without going into detail, that the foreign 
intelligence collection from these has been about the most valuable 
piece of information we have with respect to terrorist intent. So I 
appreciate the fact that this body is ready to move forward.
  I hope we will have a way forward to get it done by the time we leave 
for the Fourth of July recess. It is critical we get this done 
promptly. If we go into late July or even into August without getting 
it done, serious consequences will start to impact our ability to 
collect intelligence.
  Again, I thank our minority leader, Senator McConnell, for his kind 
words, especially about my very capable staff who have worked very 
hard, not only to help put this bill together, but we have briefed 
Members of both sides of the aisle, their staffs. We have spent a lot 
of time doing that.
  Of course, as I outlined yesterday, we spent a very long 2\1/2\ 
months working with the House. As I indicated, the bill this body 
passed, the FISA amendments, we passed 68 to 29 in February with the 
good, strong support of the chairman of the committee, Senator 
Rockefeller. We worked on a bipartisan basis. We worked with and 
listened to the intelligence community to do several things that were 
  No. 1, we wished to make sure there was protection for the privacy 
and constitutional rights of Americans and U.S. persons here and 
abroad. For the first time, we included that. We also needed to protect 
the telephone companies or carriers who have participated in the 
terrorist surveillance program under the lawful orders issued by the 
President, under his constitutional authority in article II, an act in 
good faith by those carriers.
  We provided that immunity, or retroactive liability protection, more 
accurately, that was critical to ensuring that they can continue to 
participate. They are loyal American citizens, and they wanted to be 
able to help. But when frivolous lawsuits, seeking billions of dollars 
in damages, are filed against them, whether they participated or not, 
and there is no assurance that any telephone company so sued has 
participated. They cannot use a defense that they did not participate. 
They have to have protection.
  We built in that protection in a way that was acceptable to both 
sides in this body in the FISA amendments and also satisfied the 
concerns of the majority party in the House, which, as Leader McConnell 
said, had the votes, if they had wished to pass our FISA amendments.
  We believe this new bill we are considering, H.R. 6304, which passed 
the House with a strong majority vote of 293 to 129 last Friday, should 
be passed here.
  As with the Senate's original FISA bill passed several months ago, 
the compromise that is before us required a little give-and-take from 
all sides. But, in essence, what we have before us today is basically 
the Senate bill all over again.
  I am aware that some on the far left wish to paint this as some 
radical new legislation. But if you read the language, it is not 
different. The press picked up on this straight away last week and kept 
asking me to help them find the purported ``big changes'' in this bill 
that no one can find. I have not been much help to them because the 
answer is, there is not much that is significantly different, save some 
cosmetic fixes that were requested by the majority party in the House.
  For example, I am pleased that the strong retroactive liability 
protections that the Senate bill offered are still in place, and our 
vital intelligence sources and methods will be safeguarded. I am 
pleased this compromise preserves the ability of the intelligence 
community to collect foreign intelligence quickly and in exigent 
circumstances without any prior court review.
  I am also pleased the 2012 sunset, 3 years longer than the sunset 
previously offered in any House bill, will give our intelligence 
collectors and those parties we need to have cooperate with us the 
certainty they need in the tools they use to keep us safe.
  I am confident the few changes we made to the Senate bill in H.R. 
6304 will in no way diminish the intelligence community's ability to 
target terrorists overseas, and the Director of National Intelligence 
and the Attorney General agreed. That had to be the test. They worked 
with us. They made compromises. When we had a proposal for additional 
protections for Americans, they agreed. But we had to work out the 
language to make sure we provided protections without destroying the 
basic integrity of the bill.
  I believe we did that. We did that with the Senate bill, and we did 
it again with the minor changes the House wanted to make.
  Let me address, for the time being, the banner issue of the 
legislation, which is Congress's affirmation that the telecom providers 
that may have assisted the Government after 9/11 should have the 
frivolous lawsuits against them dismissed.
  I am confident in the standard of review in title II of the bill on 
which we agreed with Congressman Hoyer and Congressman Blunt, his 
counterpart in the House, namely, a ``substantial evidence'' standard, 
which will ensure that those companies that assisted the Government 
following the September 11 terrorist attacks obtain the civil 
retroactive liability protection they deserve.

[[Page S6178]]

  Unlike the amendment we defeated in the Senate that asked for the 
court to determine whether the providers acted in ``good faith,'' we 
affirm in this legislation, as we did in the previous Senate bill, that 
the providers did act in good faith, and that the lawsuits shall be 
dismissed unless the judge finds that the Attorney General's actions 
were not ``supported by substantial evidence.''
  The focus is on the Attorney General's certification to the court, 
not the actions of the providers. We know the providers operated in 
good faith, and they deserve liability protection. We are allowing, 
however, the court to review the Attorney General's role in that.
  Another way to describe it is that we have essentially provided the 
district court with an appellate standard of review, just as we did in 
the Senate bill. Congress affirms in this legislation that the lawsuits 
will be dismissed, but then we give the district court an opportunity 
to change that outcome if the judge determines the Attorney General's 
certification was not supported by ``substantial evidence'' based on 
the information the Attorney General will provide to the court. So the 
intent of Congress is clear: the companies deserve liability 
protections. That principle has been approved overwhelmingly on a 
bipartisan basis in both the Senate when we adopted our bill in 
February and the House when it adopted its bill last Friday.
  Also, there are clear limits on what documents the court may review 
and the extent to which parties may participate in legal arguments. 
Because of these important limitations, I am confident that neither the 
standard of review nor the court processes will jeopardize liability 
protections or our intelligence sources and methods. Thus, Congress is 
again positively reaffirming that these companies should have the 
lawsuits dismissed.
  Mr. President, for the record, I thank publicly these providers--and 
they know who they are--who came to our Nation's defense in a time of 
national peril. Thank you for ensuring that our Government could keep 
Americans safe. Thank you for withstanding years of frivolous lawsuits 
that you did not deserve. But, unfortunately, that has been your 
penalty for your patriotism. You are a big factor in why America has 
not been hit with another terrorist attack since September 11, 2001. 
You helped keep us safe for nearly 7 years since that terrible day, and 
you did so without legal relief. I thank you, and those who stand with 
me today thank you. The least we can do in Congress is to provide you 
with the legal protections you so rightly deserve.
  Now, some Senators would like to strip the providers' civil liability 
protections in the bill. Some believe the thanks these providers 
deserve should come in the form of billions of dollars of penalties 
through frivolous lawsuits that threaten their business reputation. 
Having reviewed the underlying authorities, the certifications, as one 
who has practiced a little bit of law in this area, I can tell you 
there is no way they could or should be held liable for any monetary 
damages, much less the billions of dollars irrationally requested in 
the lawsuits.
  What these lawsuits do is seek to undermine our program by laying out 
who participates in it. By getting at the details of the program, we 
would provide those who seek to do us harm with information on how we 
collect the information on them that is needed to prevent their 
attacks. Just as important, bringing them, dragging them through the 
mud of trials in court would simply assure that their business 
reputation would be severely damaged in the United States and 
potentially obliterated abroad. In addition, there is a real likelihood 
that terrorist activities or other extremists would turn on and attack 
their property or even their personnel.
  I believe seeking to strip liability protection is void of any mature 
understanding of the threats this Nation faces. That sort of 
shortsighted pandering to far-left political interest groups endangers 
our citizens and pays back patriotic service with politically motivated 
  I do not join with those who want to treat those who responded to our 
call for help with disregard and disrespect. I thank the providers for 
responding to the call, and I will join many others in passing this 
legislation who will be thanking them with their vote on this important 
national security legislation.
  For those who want to challenge the program, note that we did not ban 
civil suits against the Government or against any officer of the 
Government. And criminal suits--if there are any criminal penalties--
are not banned. They could be instituted by the appropriate 
jurisdictions with law enforcement responsibility.
  So, Mr. President, there are lots of other points to consider, and 
when we get on the bill I will be happy to join in discussing any 
further questions that are raised.
  Again, I thank my staff, I thank Senator Rockefeller and his team for 
having passed the FISA bill. I am very grateful to Mr. Hoyer, the 
majority leader in the House, whose efforts were essential to passing 
this bill and bringing it to us. We have thanks also for the ranking 
member of the House Intelligence Committee, Peter Hoekstra, who worked 
with us day in and day out on all of the changes that were requested. 
Lamar Smith, the ranking member of the House Judiciary Committee, he 
and his staff and his team worked with us throughout.
  We have before us not a perfect piece of legislation--I do not think 
on this Earth we will ever see a perfect piece of legislation. But for 
the challenges we had to go through and the compromises we had to make, 
this is the best possible product we can produce that has already 
gained an overwhelming bipartisan majority in the House. I hope it will 
also get the same kind of response in the Senate.
  Our intelligence community deserves it. The citizens of the United 
States deserve not only their rights protected, but they need and 
deserve the protection this act will give them from further attacks 
like 9/11.
  Mr. President, I do not see anyone seeking the floor, so I suggest 
the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. GRAHAM. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
  Mr. GRAHAM. Mr. President, if I could, I would like to be recognized 
for 15 minutes to speak on the FISA legislation.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
  Mr. GRAHAM. Mr. President, the Senate is taking up a matter that I 
think is very important to the American people and our national 
security, and that is to pass the compromise reached by the House and 
the administration regarding the FISA program.
  I want to briefly lay out my view of how the law works in this area. 
The initial approach by the Bush administration that there was no 
requirement to comply with the FISA statute, the Foreign Intelligence 
Surveillance Act, because of inherent authority of the Executive in a 
time of war I didn't agree with, quite frankly. The idea that an 
American would be travailed by an agency of our Government if that 
American citizen was suspected of being involved with the enemy--a 
fifth column movement, for lack of a better term--and there would be no 
court review was unacceptable to me.
  If an American citizen is suspected of collaborating with the enemy, 
I think there is a requirement for the Government to have its homework 
checked, have a judge authorize further surveillance in a kind of 
balanced approach. Once there is a reasonable belief that an American 
citizen may be involved with enemy forces, that becomes a crime of 
treason, potentially.
  I do think it is appropriate for Congress to pass a statute that 
would say when an American citizen is suspected of being involved with 
an enemy force, taking up arms against the United States--uniformed or 
not--the FISA statute applies. The inherent authority of the Executive 
to conduct surveillance in a time of war is limited, or can be limited 
by the other branches of Government.
  Having said that, this idea that at a time of war you need a warrant 
to surveil the enemy, when no American citizen is involved, is crazy. 
We have

[[Page S6179]]

never in any other war gone to a judge and said: We are listening to 
enemy forces--for instance, two suspected members of al-Qaida, non-
American citizens--and we need a warrant. You don't need that. That is 
inherent in the ability to conduct military operations, to monitor the 
  Those who want to basically criminalize the war, I disagree in equal 
measure. We are at war, and there is an effort by our intelligence 
agencies out there to monitor phone calls and other electronic 
communications of a very vicious enemy that is intent on attacking us 
again. That program has been shut down because of this dispute.
  We have finally found a compromise which would allow the program to 
move forward, protecting American citizens who may be suspected of 
being involved with enemy forces, and also allowing the Commander in 
Chief and our military intelligence community to aggressively monitor 
networks out there that wish us harm. In this global world in which we 
live, the technology that is available to the enemy is different than 
it was in 1978. So we have modernized FISA and made it possible for our 
intelligence community to be able to keep up with the different 
technologies that enemy forces may be using to communicate.
  I can assure the American people that this program has been of 
enormous benefit, the terrorist surveillance program. It has allowed us 
to stay ahead of enemy activity, and with terrorism you do not deter 
them by threatening them with death. That is something they welcome. 
Other enemies in the past have been deterred from attacking America 
because they know an overwhelming response will come their way. In the 
Cold War, it was called mutually assured destruction. With terrorist 
organizations that would gladly forfeit the lives of mentally 
handicapped young people, and others, you have no idea what they are up 
to, and you just try to isolate them the best you can. Finding out what 
they are up to and following their movements is essential because you 
have to preempt them before they are able to attack.
  We have a compromise that has come from the House to the Senate that 
I can live with. The sticking point was the role our telecommunications 
companies played in the terrorist surveillance program. It is my 
understanding that the Attorney General--the chief law enforcement 
officer of the land--and the Department of Justice gave a letter to the 
telecom companies involved, saying: Your cooperation with our 
intelligence communities and military surveillance program is legal and 
appropriate, and we need your help because a phone call made in 
Afghanistan, because of the global economy in which we live, may be 
routed through an American system here, and the two people talking are 
not citizens, but there may be a telecommunications involvement in 
terms of routing of the phone call, and we need assistance from the 
telecom companies to be able to track the technology that exists today 
that is being used by the enemies of the country.
  The idea that somebody would want to sue them because they broke the 
law, after they have been told by the Department of Justice and the 
Attorney General their help was needed and it was lawful for them to 
help, misses the point.
  What are we trying to do as a country? Are we trying to avoid the 
fact that we are at war by talking about lawsuits that undermine the 
ability of our country to protect itself? I am very much for civil 
liberties. I don't want any American, as I said before, to be followed 
by an agency of our Government, suspecting they are cooperating with 
al-Qaida or another terrorist group, and not have the Government's work 
looked at by a judge. I would not want that to happen to anybody. If 
you think anybody who is an American citizen is helping the enemy, you 
ought to be able to go to a judge and get a warrant. But this idea of 
having the American telecommunications companies, which were 
cooperating with the Government in a fashion to help our forces and our 
intelligence community stay ahead of an enemy, be subject to a civil 
lawsuit is riduculous. That is not the appropriate remedy.
  If we allow these companies who have been asked by their Government, 
through the chief law enforcement officer of the land, to participate 
in the program--if we ask them to participate and then sue them, who is 
going to help us in the future? This is pretty basic stuff for me. If 
we do not protect these companies from lawsuits that are existing out 
there, when they were willing to help the Government--if we don't give 
them protection, nobody in the future is going to come and help us. We 
need all the help we can get. We need help from banks, 
telecommunications companies, and we need help from all kinds of 
different corners of the private sector to beat this enemy. We are all 
in it together.
  The terrorists use banks to funnel money. Well, the banks can help us 
if we suspect that an account exists that is being used by a terrorist 
organization. We should be able to track that down. We are all in this 
  The private sector plays a role in the war on terrorism. Every 
citizen can play a role in the war on terrorism by being vigilant. We 
finally reached a deal that would allow the program to be reauthorized, 
protecting civil liberty and telling the telecommunications companies 
that helped us: You are not going to get sued.
  To my dear friend, Senator Specter--his solution is to let the 
lawsuits come forward but shield the companies by having the Government 
take legal responsibility and be subject to being sued. That is not the 
right answer either. Our Government wasn't doing a bad thing. Our 
Government was doing a good thing. Our Government was trying to find 
out what enemies of this Nation were up to before it was too late.
  We have had a lot of warnings in the past that were ignored. How many 
times do we have to deal with this terrorist problem through the law 
enforcement model to only wake up and find out that we were wrong? The 
law enforcement model will not work. The law enforcement model punishes 
people after they commit the crime. We are at war. Our goal is to keep 
them from attacking us. The military model is the one we should pursue. 
In every other war, the private sector itself has helped the Government 
defeat the enemies of this country.
  When Senator Obama says he would like this provision taken out of the 
bill--protection for telecommunications companies from lawsuits--that 
he would like that taken out of the bill, what he is telling the 
Senate, the House, and the country is that this deal will fall apart. 
If we took this provision out, there would be no deal. People like me 
would not allow this process to go forward--and we had to give some. 
There was a give on the part of the administration and people like 
myself. There are some programs that I think are inherent to fighting 
the war that now have to be reviewed by the court. But that was a 
  So for Senator Obama to come and say that he would take this 
provision out is saying that he does not believe in a bipartisan deal 
on the subject matter in question. The left has gone nuts over there--
the hard left. They think this is totally unacceptable. So, apparently, 
he is going to tell them: I don't support this. I am sure that is what 
they want to hear. But I say to my colleague, deals require giving and 
taking. It requires sometimes telling your friends what they don't want 
to hear. This is an example, in my opinion, of trying to tell your 
friends what they want to hear and positioning yourself in a way to 
look good with the public in general.
  That is not leadership. Leadership requires the common good to trump 
special interests. It requires political leaders to turn to their 
allies at times and say: No, your suggestion cannot win the day because 
if I give you what you are insisting on having, there will be no 
movement forward.
  Senator Obama is willing to give the left what they want. The 
consequence of that would be that the deal would fall apart because 
many people like me believe if you allow these companies to be sued for 
helping their country, then nobody will come forward in the future to 
help their country from the private sector.
  In this war, we are going to need support from the private sector, 
not only in telecommunications but in banking and other areas. So I 
hope the amendment to strike the retroactive immunity for 
telecommunications companies will be defeated because, if it is

[[Page S6180]]

passed, the deal fails, the movement forward stops, and America is 
harmed. I am here to support the deal.
  Understand that I didn't get all I wanted, but America will be safer 
if we can get this program reauthorized. Our civil liberties will be 
better protected, and the ability to understand what our enemies are up 
to will be greatly enhanced. Every day that we move forward as a nation 
with this program being compromised is a day that the enemy has an 
advantage over us. We know what happens if this enemy is not dealt with 
firmly and quickly. They are lethal, they are committed, and they will 
do anything to harm our way of life.
  We have an opportunity to come together as Republicans and Democrats 
and move forward on a surveillance program that is vital to our 
national security, and those who want to undo this deal because of 
special interest pressure are not exercising the leadership the 
American people need in a time of war.
  With that, I yield the floor.
  The PRESIDING OFFICER (Mr. Brown). The Senator from Washington is 
  Mrs. MURRAY. Mr. President, I ask unanimous consent to speak as in 
morning business for 10 minutes and that the time be counted against 
the bill.
  The PRESIDING OFFICER. Without objection, it is so ordered.


  Mr. ROCKEFELLER. Mr. President, I am going to talk a little about the 
FISA amendment and the protection of civil liberties of Americans. Some 
people who are concerned about this bill don't recognize that there 
have been enormous changes made that specifically speak to civil 
liberties, and so I would like to talk about that. I wish to take the 
time to explain how the negotiators of the FISA bill have taken great 
care in protecting the constitutional right of privacy of American

[[Page S6181]]

citizens in crafting this agreement, which was a heavily discussed and 
worked over matter.
  The FISA Amendments Act of 2008 includes strong protections of civil 
liberties of Americans while still allowing the Government to collect 
the foreign intelligence it needs to protect the country, literally. 
Maintaining this balance between civil liberties for Americans and 
protecting our Nation against foreign attack was obviously my utmost 
priority, as well as Senator Bond's, during the lengthy negotiation 
process that produced what I think is historic legislation in 
modernizing FISA for the first time in 30 years.
  The FISA bill protects Americans in a lot of ways by ensuring FISA 
Court involvement in any aspect of the new procedure for targeting 
foreigners outside the United States that could involve U.S. persons. 
It does so in four significant ways:
  First, the bill requires the FISA Court to approve procedures used to 
determine whether the foreign target of the surveillance is outside of 
the United States. The court's assessment of the adequacy of these 
procedures will ensure that the new authorities cannot be used for 
domestic surveillance.
  Second, the bill requires the court to approve the procedures used to 
address any incidental acquisition, retention, or dissemination of U.S. 
person information. These procedures protect the privacy of any 
Americans who might be in contact with a foreign target.
  Third, by explicitly asking the court to assess whether the 
procedures comply with the fourth amendment, the bill requires the 
court to determine whether the privacy interests of U.S. persons are, 
in fact, adequately protected.
  Finally, the bill requires the court to approve targeting and 
minimization before collection begins, in most instances. The court 
would be required to review and approve the procedures at least 
annually. This is called prior approval, and it was something that was 
not welcomed by some, but through the negotiation process, the prior 
approval process was incorporated in the bill, and it means that the 
court has to approve targeting and minimization before collection. The 
Director of National Intelligence and the Attorney General would only 
be able to proceed prior to a court order if emergency circumstances 
exist but for a period of time no greater than 7 days before being 
required to seek the approval of the court and no more than 30 days 
while the court is considering the request. Sometimes, but very rarely, 
emergencies do take place.
  The FISA bill also provides unprecedented new privacy protections for 
Americans abroad. This may be the most important part. For the first 
time, Americans traveling or working abroad are entitled to the same 
protection from surveillance and search that they would have if they 
were in the United States. There are 4 million Americans at any given 
moment who are outside of the United States, which is equal to the 
total population of our Nation when it was founded. The requirement is 
that the Government obtain a court order prior to targeting them for 
any foreign intelligence collection. So they get the same type of 
protection as does anybody in the United States. That is a first. 
Before, the Attorney General could pretty much just say: We want to 
target these people overseas, and there was no court involved, there 
was no approval process involved legally. Now that cannot happen. So 
they are protected, indeed, the same as anybody in the United States.
  The bill requires the court to make an individual determination of 
probable cause before a U.S. person overseas may be targeted for any 
electronic surveillance or other foreign intelligence collection. Each 
court order is valid for no longer than 90 days. This is an important 
new protection that has never before been in place.
  Apart from the court review I have detailed, the FISA bill also 
protects the privacy interests of Americans through other provisions.
  The bill prohibits the new procedure for targeting foreigners outside 
the United States from being used to target anyone inside the United 
States or from being used to acquire entirely domestic communication. 
The way it is now--and it is called reverse targeting--within the 
United States, you take out of the air some communication of somebody 
overseas who may be contacting somebody in the United States, and that 
potentially puts the U.S. person at risk. That is reverse targeting. So 
there is a prohibition now which explicitly includes reverse targeting, 
where the purpose of targeting somebody outside the United States is to 
target somebody in the United States. I know it is complicated, but it 
is important.
  Because of the importance of the prohibitions in the bill, the bill 
requires the Attorney General to adopt guidelines that ensure that the 
Government obtains individual court orders when required and does not 
engage in any prohibited conduct, such as reverse targeting, which, in 
effect, disappears from the lexicon of telecommunication collection. 
The bill also requires the Attorney General and the Director of 
National Intelligence to certify to the FISA Court, under oath, that 
the acquisition complies with the prohibitions in the bill and that the 
procedures and guidelines are consistent with the requirements of the 
fourth amendment.
  To ensure there are no unintended consequences relating to when a 
warrant must be obtained under FISA or how information obtained using 
FISA can be used, the bill does not change the definition of 
``electronic surveillance'' in FISA. It is left exactly as it is. 
People say: Well, why is that? Everything has changed. Well, there can 
be legislative authorizations to make changes, but only if those 
legislative authorizations are made can there be changes in electronic 
surveillance. So the definition remains the same--a good, solid base.
  The bill requires extensive reporting to Congress about the 
implementation of the new provisions, compliance with the prohibitions 
in the bill--that is important; we have not had that--and the impact of 
the new provisions on U.S. persons.
  The bill sunsets on December 31, 2012, a date which ensures that the 
reauthorization of the FISA bill will be addressed, in fact, by the 
next administration.
  In addition to protecting the civil liberties of Americans in the new 
procedures, the bill seeks to prevent any future circumvention of FISA 
and to ensure that Congress has a complete set of facts about the 
President's surveillance program.
  Well, one might question: How does that happen? In title III of the 
FISA bill that is before us, we direct the inspectors general of 
relevant agencies--and that is a whole bunch of intelligence agencies--
to complete a comprehensive review of the President's warrantless 
surveillance program. Then, within a year, the inspectors general must 
submit an unclassified report to Congress, with a classified annex, if 
necessary. This IG review provides an important vehicle for ensuring 
that a comprehensive set of facts about the President's program is 
available to Congress and, to the extent the classification permits, to 
the American public itself.
  A comprehensive review of the President's program is particularly 
important given the possibility the courts will dismiss ongoing 
litigation due to title II. It also ensures that accountability for the 
program will be directed at the Government, where it belongs.
  To ensure that the Government never again relies on an inapplicable 
statute to argue that warrantless wiretapping is permissible, the bill 
strengthens the requirements that FISA and specific chapters of title 
XVIII are the exclusive means by which electronic surveillance and 
criminal law interceptions may be conducted. The act provides that in 
addition to the specifically listed statutes, only an express statutory 
authorization passed by the Congress for surveillance or interception 
may constitute an additional exclusive means for that surveillance or 
for that interception. It is a very strong protection against abuse.
  Finally, the bill clarifies that criminal and civil penalties can be 
imposed for any electronic surveillance that is not conducted in 
accordance with FISA or the specifically listed criminal intercept 
  In summary, the FISA bill has a multitude of statutory provisions 
that provide the judicial and congressional oversight that is essential 
to protecting the civil liberties of all Americans, both here and 
abroad. They were

[[Page S6182]]

not protected abroad. They are now. The House did not pass this bill 
because they believed there was an insufficiency of civil liberty 
protections--and they may have been right. So we hammered these out in 
long meetings in which the White House, all the intelligence agencies, 
and the leadership--Republican and Democratic--of the House and the 
Senate were there.
  It is a much stronger bill. People will argue that people like me 
talk about a balance between being able to collect--which is the only 
way you are going to know if you are going to be attacked--or civil 
liberties. So people tend to go all the way this way or all the way 
that way, not recognizing or not being willing to accept that there can 
be a balance. We have created that balance in our bill. I am proud of 
that. It is one of the many reasons I am for the bill.
  I yield the floor.


  Mr. WARNER. I thank the Chair.
  Mr. President, this is one of the most important subjects I have had 
the privilege of addressing in my 30-some years in the Senate. I and 
many others will rise in connection with this bill in support of the 
FISA Amendments Act. It is a critical piece of legislation for 
America's present and future security. It achieves an important balance 
between protecting civil liberties and ensuring that our dedicated 
intelligence professionals have the capabilities they need to protect 
this Nation.
  Currently, Admiral McConnell is Director of our intelligence system. 
I have had the privilege of knowing him for over 30 years, working with 
him. We are fortunate that he and General Hayden and many others are 
carrying the torch for our Nation's intelligence. They have worked very 
hard on this piece of legislation, as has my dear colleague from 
Missouri, Senator Bond. I am on the Intelligence Committee. He has done 
a splendid job in negotiating the conference--hopefully, what will be a 
settlement. He was supported by our chairman, Senator Rockefeller. It 
has been a team, with the two of them achieving the juncture we are at 
now in the consideration of this bill.
  The bill ensures that the intelligence capabilities provided by the 
Protect America Act, enacted in August of 2007, remain sealed in 
statute. I cannot overemphasize how important that is to ensuring our 
Nation's security. I wish to underscore, once again, the importance of 
legal protection for the telecommunications carriers that have 
voluntarily--underline voluntarily--come

[[Page S6197]]

forth for the private sector and have assisted our Government with the 
terrorist surveillance program, commonly referred to as TSP, which was 
originated and authorized by the President under appropriate sections, 
in my judgment, of the Constitution, particularly article II.
  I wish to emphasize that I was privileged to be Secretary of the Navy 
in the period of the 1970s, when the All-Volunteer Force was conceived. 
That force of young men and women, each of whom raised their hands and 
said, I volunteer to serve in uniform, is not unlike the issue today 
with elements of corporate America, the private sector, who have come 
forward to volunteer to assist this Government in performing the 
intelligence responsibilities undertaken which guarantee the freedoms 
and safety we enjoy every day here at home. The extensive evidence made 
available to the Senate Intelligence Committee shows that carriers that 
participated in this program relied upon our Government's assurances 
that their actions were legal, authorized by the President, and in the 
best interests of the security of our Nation.
  In brief, our Government provided the carriers with essential 
assurances, and the carriers responded to our Government's request for 
help. These carriers must be protected from costly and damaging 
lawsuits. Such lawsuits could end the current level of participation in 
the vital intelligence programs by these carriers and will likely deter 
other companies and private citizens who might like to step forward and 
volunteer in helping us protect ourselves by virtue of the essential 
intelligence we must monitor and collect every day. After all, these 
carriers are corporations in most instances, if not all. They are 
beholden, the executives of these corporations, to the stockholders. 
That is the system of free enterprise we have in the United States. 
Consequently, they, on behalf of their stockholders--and the 
stockholders could be the pension funds, could be a stock held by any 
number of people and entities in our system of Government--are coming 
forth simply asking for codification of assurances having been given by 
the Government so they can go back to their stockholders and explain 
that: We are doing this to protect America. We now have, by virtue of 
the actions of the Congress, signed and sealed by the President, the 
law that will protect your interests in this country from lawsuits 
which have no foundation in law.
  I would like to share a ``Dear Colleague'' letter which all Members 
of our Chamber some months ago received from the esteemed chairman and 
vice chairman of the Intelligence Committee, Senators Rockefeller and 
  I ask unanimous consent that the full text of the letter be printed 
in the Record following my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. WARNER. The letter discussed the Senate Intelligence Committee's 
extensive and bipartisan review of the TSP, which included dozens of 
briefings, hearings, and interviews, as well as extensive document 
reviews. As a result of this more than 10-month comprehensive 
examination, the committee concluded--and I quote what was written and 
published to our colleagues by the committee--

       Irrespective of one's opinion of the President's reliance 
     on Article II authority to justify the TSP, those companies 
     that assisted with the TSP did so in good faith and based 
     upon the written--

  I repeat: ``written representations''--

     from the highest levels of government that the program was 
     lawful. The Committee's bill reported out on a strong, 
     bipartisan vote of 13-2--

  I wish to repeat that. That is a strong vote. I have served on the 
Intelligence Committee. This is my third tour of duty, you might say, 
given that we have, under our leadership, stipulated periods to serve. 
That is a big, strong vote. At one time, I was ranking member, as is 
Mr. Bond, of that committee, and that is about as strong a vote as you 
can get among the diversity of the wonderful people who have, 
throughout my years in the Senate, served on that committee.

       [That vote] reflects our determination that companies that 
     cooperated with the government in good faith should be 
     protected from time-consuming and expensive litigation. It is 
     a matter of fundamental fairness.

  End quote by the committee.
  Another item which played a key role in my thinking about the issue 
was a thoughtful article published in a newspaper by private citizens 
with past distinguished careers in public service relating to 
intelligence. The first is Benjamin Civiletti, U.S. Attorney General 
under President Jimmy Carter; followed by Dick Thornburgh, U.S. 
Attorney General under President George Herbert Walker Bush; and Judge 
William Webster, a very distinguished gentleman I have known personally 
for many years, former Director of the CIA and former Director of the 
Federal Bureau of Investigation.
  Now, there are three diverse public servants, with different 
political backgrounds, but they came together for the common purpose of 
trying to strengthen America's intelligence system. The article, 
entitled ``Surveillance Sanity,'' appeared in the October 31, 2007, 
edition of the Wall Street Journal. I have spoken on the floor 
previously about this article and their contribution, but because of 
its direct relevance to the issue we are now deliberating on and 
hopefully will vote on today, I ask unanimous consent that a copy of 
the article be printed in the Record following my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 2.)
  Mr. WARNER. Let me share with you some of their thoughts. Regarding 
the Intelligence Committee's carefully crafted and limited liability 
provision, which is very similar to the provision in the bill currently 
before us, these three distinguished public servants--now private 

       We agree with the Committee. Dragging phone companies 
     through protracted litigation would not only be unfair, but 
     it would deter other companies and private citizens from 
     responding in terrorist emergencies whenever there may be 
     uncertainty or level risk.

  Unfortunately, our committee has already heard testimony that without 
such protections, some companies believe they can no longer continue 
their cooperation and assistance to our American Government, 
particularly the intelligence sections.
  Messrs. Civiletti, Thornburgh, and Webster also wrote:

       The government alone cannot protect us from the threats we 
     face today. We must have the help of all of our citizens. 
     There will be times when the lives of thousands of Americans 
     will depend on whether corporations such as airlines or banks 
     are willing to lend assistance. If we do not treat them 
     fairly when they respond to assurances from the highest 
     levels of the government that their help is legal and 
     essential for saving lives, then we will be radically 
     reducing our society's capacity to defend itself.

  That is very strong language, very clear language. I urge my 
colleagues, once again, to look at their article.
  As the Senate considers this bill, it should reject any amendments 
which would put the carriers and their millions of shareholders in 
legal limbo, waiting while the Government litigates unrelated 
constitutional claims. Lawsuits against the companies would likely 
continue in the interim which would: have negative ramifications on our 
intelligence sources and methods; likely harm the business reputations 
of these companies; and cause the companies to reconsider their 
participation--or worse--cause them to terminate their cooperation in 
the future.
  The Senate Intelligence Committee, by a vote of 13 to 2, stated its 
belief that the carriers acted in good faith and that they deserve to 
be protected.
  Clearly the issue of whether the President acted within his 
constitutional authority in authorizing the TSP can and should be 
addressed in a separate context from this bill.
  Even the exclusive means provision in this bill favored by my 
Democratic colleagues in the House and Senate acknowledges the 
President's constitutional authority in stating that certifications to 
companies for assistance shall identify the statutory provision on 
which the certification is based, ``if a certification . . . is based 
on statutory authority.'' This clearly indicates that the certification 
could be based on the President's constitutional authority.
  But, even if one did not agree that the President acted within his 
Article II powers, why would anyone want to punish the carriers for 
something the Government called on them to do and assured them was 

[[Page S6198]]

  Individuals who believe that the Government violated the civil 
liberties can pursue legal action against the Government, and the bill 
before us does nothing to limit that legal recourse.
  As stated so eloquently by Messrs. Civiletti, Thornburg, and Webster, 
I quote the following:

       Whether the government has acted properly is a different 
     question from whether a private person has acted properly in 
     responding to the government's call for help. . . . Because a 
     private person cannot have all the information necessary to 
     assess the propriety of the government's actions, he must be 
     able to rely on official assurances about need and legality.

  I strongly believe that the President did act within his Article II 
executive branch authority in authorizing this program. Even the 
exclusive means provision in this bill favored by my Democratic 
Colleagues in the House and Senate acknowledges the President's 
constitutional authority in stating that certifications to companies 
for assistance shall identify the statutory provision on which the 
certification is based ``if a certification . . . is based on statutory 
authority.'' This clearly indicates the certification could be based on 
the President's constitutional authority.
  But even if one did not agree that the President acted--acted--within 
the confines of the U.S. Constitution--particularly article II outlines 
the executive branch's power under the President--why would anyone want 
to punish the carriers for something the Government called on them to 
do and assured them was legal? Individuals who believe the Government 
violated their civil liberties can pursue legal action against the 
Government, and the bill before us does nothing--I repeat: does 
nothing--to prohibit a citizen to bring that legal recourse against 
their Government, the U.S. Government.
  As stated so eloquently in the Messrs. Civiletti, Thornburgh, and 
Webster document, I further quote:

       Whether the government has acted properly is a different 
     question from whether a private person has acted properly in 
     responding to the government's call for help. . . . Because a 
     private person cannot have all the information necessary to 
     assess the propriety of the government's actions, he must be 
     able to rely on official assurances about need and legality.

  I agree with the conclusions of these three eminent private citizens.
  I would like to also call your attention to an important letter sent 
last week--June 19, 2008--to Senate and House leadership from the 
Attorney General of the United States and the Director of National 
Intelligence--that is GEN Michael Mukasey and ADM Michael McConnell--
two distinguished public servants now serving America.
  Mr. President, I also ask unanimous consent that this letter be 
printed in the Record following my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 3.)
  Mr. WARNER. These gentlemen said:

       [P]roviding this liability protection is critical to the 
     Nation's security.

  They confirmed that the intelligence community cannot obtain the 
intelligence it needs without--I repeat, without--the assistance from 
these carriers, companies, and other segments of the private sector. 
They noted:

       It is critical that any long-term FISA modernization 
     legislation contain an effective liability protection 

  It should be clear from this letter that the Director of National 
Intelligence and the Attorney General of the United States could not 
support the bill without explicit retroactive legal protection for the 
carriers and other segments of the private sector.
  It is for these reasons that I urge my colleagues to support H.R. 
6304, the FISA Amendments Act, as passed by the House, and to vote 
against any amendments that intend to strip out or alter the critical 
civil liability provision or any other section of the bill that is 
essential to our intelligence community.
  Mr. President, I yield the floor.

                               Exhibit 1

                                                      U.S. Senate,

                             Select Committee on Intelligence,

                                 Washington, DC, February 1, 2008.
       Dear Colleagues: The FISA Amendments Act, S. 2248, provides 
     limited and narrowly-drawn retroactive civil liability 
     protection to those telecommunication companies that 
     allegedly assisted the government with the President's 
     Terrorist Surveillance Program (TSP). An amendment has been 
     offered to this Act to strike these liability protections in 
     favor of ``substitution,'' a legal mechanism for replacing 
     the companies in the ongoing TSP litigation with the 
       The Senate Intelligence Committee conducted a comprehensive 
     and bipartisan review of the President's TSP, including the 
     issue of carrier liability. The Committee reviewed numerous 
     documents, including the Department of Justice legal opinions 
     and the letters from the government to the companies. The 
     Committee held a number of briefings and hearings involving 
     government and company officials. The Committee also visited 
     the National Security Agency to see firsthand how the TSP 
       As a result of this extensive review, the Committee 
     concluded that, irrespective of one's opinion of the 
     President's reliance on Article II authority to justify the 
     TSP, those companies that assisted with the TSP did so in 
     good faith and based upon the written representations from 
     the highest levels of government that the program was lawful.
       The Committee's bill, reported out on a strong, bipartisan 
     vote of 13-2, reflects our determination that companies that 
     cooperated with the government in good faith should be 
     protected from time-consuming and expensive litigation. It is 
     a matter of fundamental fairness. The Committee rejected the 
     broad immunity proposal sought by the Administration. Our 
     limited immunity provision only covers assistance provided 
     from September 11th to when the TSP was put under court 
     authorization in January of last year. It does not provide 
     protection from criminal prosecution or extend protections to 
     government officials. Any litigation against government 
     officials will continue.
       In concluding that civil liability protection for those 
     companies was appropriate, the Committee recognized that 
     allowing the current litigation to continue could: (1) 
     compromise our intelligence sources and methods through 
     ongoing discovery and other litigation proceedings; (2) 
     result in significant loss of business reputation or 
     financial loss for those companies that participated in good 
     faith; (3) jeopardize the personal safety of overseas 
     employees of these companies if it becomes known that the 
     companies assisted the government in fighting terrorism; (4) 
     put taxpayers' dollars at risk for dubious legal claims; and 
     (5) lead to reluctance by these and other companies to 
     cooperate with legitimate requests for assistance in the 
       The substitution amendment sponsored by Senators Specter 
     and Whitehouse does not alleviate any of these concerns. Even 
     if the companies are removed directly from the litigation, 
     discovery would still be allowed to proceed against them. In 
     short, the conduct of the companies would continue to be 
     litigated, raising significant concerns that their identities 
     or details about their assistance will be disclosed. Given 
     the essential role that our private partners play in 
     intelligence collection, we believe that this is simply too 
     great a risk to our national security.
       We believe, therefore, that the ongoing litigation against 
     the telecommunication companies should be brought to an 
     immediate close and that the Intelligence Committee's 
     bipartisan determination of good faith should stand. We urge 
     you to support the Intelligence Committee's bill and oppose 
     any effort to modify or strike its civil liability provision.
     John D. Rockefeller IV,
     Christopher S. Bond,
       Vice Chairman.

                               Exhibit 2

             [From the Wall Street Journal, Oct. 31, 2007]

                          Surveillance Sanity

      (By Benjamin Civiletti, Dick Thornburgh and William Webster)

       Following the terrorist attacks of Sept. 11, 2001, 
     President Bush authorized the National Security Agency to 
     target al Qaeda communications into and out of the country. 
     Mr. Bush concluded that this was essential for protecting the 
     country, that using the Foreign Intelligence Surveillance Act 
     would not permit the necessary speed and agility, and that he 
     had the constitutional power to authorize such surveillance 
     without court orders to defend the country.
       Since the program became public in 2006, Congress has been 
     asserting appropriate oversight. Few of those who learned the 
     details of the program have criticized its necessity. 
     Instead, critics argued that if the president found FISA 
     inadequate, he should have gone to Congress and gotten the 
     changes necessary to allow the program to proceed under court 
     orders. That process is now underway. The administration has 
     brought the program under FISA, and the Senate Intelligence 
     Committee recently reported out a bill with a strong 
     bipartisan majority of 13-2, that would make the changes to 
     FISA needed for the program to continue. This bill is now 
     being considered by the Senate Judiciary Committee.
       Public disclosure of the NSA program also brought a flood 
     of class-action lawsuits seeking to impose massive liability 
     on phone companies for allegedly answering the government's 
     call for help. The Intelligence Committee has reviewed the 
     program and has concluded that the companies deserve targeted 
     protection from these suits. The protection would extend only 
     to activities

[[Page S6199]]

     undertaken after 9/11 until the beginning of 2007, authorized 
     by the president to defend the country from further terrorist 
     attack, and pursuant to written assurances from the 
     government that the activities were both authorized by the 
     president and legal.
       We agree with the committee. Dragging phone companies 
     through protracted litigation would not only be unfair, but 
     it would deter other companies and private citizens from 
     responding in terrorist emergencies whenever there may be 
     uncertainty or legal risk.
       The government alone cannot protect us from the threats we 
     face today. We must have the help of all our citizens. There 
     will be times when the lives of thousands of Americans will 
     depend on whether corporations such as airlines or banks are 
     willing to lend assistance. If we do not treat companies 
     fairly when they respond to assurances from the highest 
     levels of the government that their help is legal and 
     essential for saving lives, then we will be radically 
     reducing our society's capacity to defend itself.
       This concern is particularly acute for our nation's 
     telecommunications companies. America's front line of defense 
     against terrorist attack is communications intelligence. 
     When Americans put their loved ones on planes, send their 
     children to school, or ride through tunnels and over 
     bridges, they are counting on the ``early warning'' system 
     of communications intelligence for their safety. 
     Communications technology has become so complex that our 
     country needs the voluntary cooperation of the companies. 
     Without it, our intelligence efforts will be gravely 
       Whether the government has acted properly is a different 
     question from whether a private person has acted properly in 
     responding to the government's call for help. From its 
     earliest days, the common law recognized that when a public 
     official calls on a citizen to help protect the community in 
     an emergency, the person has a duty to help and should be 
     immune from being hauled into court unless it was clear 
     beyond doubt that the public official was acting illegally. 
     Because a private person cannot have all the information 
     necessary to assess the propriety of the government's 
     actions, he must be able to rely on official assurances about 
     need and legality. Immunity is designed to avoid the burden 
     of protracted litigation, because the prospect of such 
     litigation itself is enough to deter citizens from providing 
     critically needed assistance.
       As the Intelligence Committee found, the companies clearly 
     acted in ``good faith.'' The situation is one in which 
     immunity has traditionally been applied, and thus protection 
     from this litigation is justified.
       First, the circumstances clearly showed that there was a 
     bona fide threat to ``national security.'' We had suffered 
     the most devastating attacks in our history, and Congress had 
     declared the attacks ``continue to pose an unusual and 
     extraordinary threat'' to the country. It would have been 
     entirely reasonable for the companies to credit government 
     representations that the nation faced grave and immediate 
     threat and that their help was needed to protect American 
       Second, the bill's protections only apply if assistance was 
     given in response to the president's personal authorization, 
     communicated in writing along with assurances of legality. 
     That is more than is required by FISA, which contains a safe-
     harbor authorizing assistance based solely on a certification 
     by the attorney general, his designee, or a host of more 
     junior law enforcement officials that no warrant is required.
       Third, the ultimate legal issue--whether the president was 
     acting within his constitutional powers--is not the kind of 
     question a private party can definitively determine. The 
     companies were not in a position to say that the government 
     was definitely wrong.
       Prior to FISA's 1978 enactment, numerous federal courts 
     took it for granted that the president has constitutional 
     power to conduct warrantless surveillance to protect the 
     nation's security. In 2002, the FISA Court of Review, while 
     not dealing directly with the NSA program, stated that FISA 
     could not limit the president's constitutional powers. Given 
     this, it cannot be said that the companies acted in bad faith 
     in relying on the government's assurances of legality.
       For hundreds of years our legal system has operated under 
     the premise that, in a public emergency, we want private 
     citizens to respond to the government's call for help unless 
     the citizen knows for sure that the government is acting 
     illegally. If Congress does not act now, it would be 
     basically saying that private citizens should only help when 
     they are absolutely certain that all the government's actions 
     are legal. Given the threats we face in today's world, this 
     would be a perilous policy.

                               Exhibit 3

                                                    June 19, 2008.
     Hon. Nancy Pelosi, Speaker,
     House of Representatives,
     Washington, DC.
       Dear Madam Speaker: This letter presents the views of the 
     Administration on the Foreign Intelligence Surveillance Act 
     of 1978 (``FISA'') Amendments Act of 2008 (H.R. 6304). The 
     bill would modernize FISA to reflect changes in 
     communications technology since the Act was first passed 30 
     years ago. The amendments would provide the Intelligence 
     Community with the tools it needs to collect the foreign 
     intelligence necessary to secure our Nation while protecting 
     the civil liberties of Americans. The bill would also provide 
     the necessary legal protections for those companies sued 
     because they are believed to have helped the Government 
     prevent terrorist attacks in the aftermath of September 11. 
     Because this bill accomplishes these two goals essential to 
     any effort to modernize FISA, we strongly support passage of 
     this bill and will recommend that the President sign it.
       Last August, Congress took an important step toward 
     modernizing FISA by enacting the Protect America Act of 2007. 
     That Act allowed us temporarily to close intelligence gaps by 
     enabling our intelligence professionals to collect, without 
     having to first obtain a court order, foreign intelligence 
     information from targets overseas. The Act has enabled us to 
     gather significant intelligence critical to protecting our 
     Nation. It has also been implemented in a responsible way, 
     subject to extensive executive, congressional, and judicial 
     oversight in order to protect the country in a manner 
     consistent with safeguarding Americans' civil liberties. 
     Since passage of the Act, the Administration has worked 
     closely with Congress to address the need for longterm FISA 
     modernization. This joint effort has involved compromises on 
     both sides, but we believe that it has resulted in a strong 
     bill that will place the Nation's foreign intelligence effort 
     in this area on a firm, long-term foundation. Below, we have 
     set forth our views on certain important provisions of H.R. 

               Title I--Foreign Intelligence Surveillance

       Title I of H.R. 6304 contains key authorities that would 
     ensure that our intelligence agencies have the tools they 
     need to collect vital foreign intelligence information and 
     would provide significant safeguards for the civil liberties 
     of Americans.
       Court Approval. With respect to authorizations for foreign 
     intelligence surveillance directed at foreign targets outside 
     the United States, the bill provides that the Foreign 
     Intelligence Surveillance Court (FISC) would review 
     certifications made by the Attorney General and the Director 
     of National Intelligence relating to these acquisitions, the 
     reasonableness of the procedures used by the Intelligence 
     Community to ensure the targets are overseas, and the 
     minimization procedures used to protect the privacy 
     of Americans. The scope of the FISC's review is carefully 
     and rightly crafted to focus on aspects of the acquisition 
     that may affect the privacy rights of Americans so as not 
     to confer quasi-constitutional rights on foreign 
     terrorists and other foreign intelligence targets outside 
     the United States.
       We have been clear that any satisfactory bill could not 
     require individual court orders to target non-United States 
     persons outside the United States, nor could a bill establish 
     a court-approval mechanism that would cause the Intelligence 
     Community to lose valuable foreign intelligence while 
     awaiting such approval. H.R. 6304 would do neither and would 
     retain for the Intelligence Community the speed and agility 
     that it needs to protect the Nation. The bill would establish 
     a schedule for court approval of certifications and 
     procedures relating to renewals of existing acquisition 
     authority. A critical feature of the H.R. 6304 would allow 
     existing acquisitions, which were the subject of court review 
     under the Protect America Act or will be the subject of such 
     review under the H.R. 6304, to continue pending court review. 
     With respect to new acquisitions, absent exigent 
     circumstances, Court review of new procedures and 
     certifications would take place before the Government begins 
     the acquisition. The exigent circumstances exception is 
     critical to allowing the Intelligence Community to respond 
     swiftly to changing circumstances when the Attorney General 
     and the Director of National Intelligence determine that 
     intelligence may be lost or not timely acquired. Such exigent 
     circumstances could arise in certain situations where an 
     unexpected gap has opened in our intelligence collection 
     efforts. Taken together, these provisions would enable the 
     Intelligence Community to keep closed the intelligence gaps 
     that existed before the passage of the Protect America Act 
     and ensure that it will have the opportunity to collect 
     critical foreign intelligence information in the future.
       Exclusive means. H.R. 6304 contains an exclusive means 
     provision that goes beyond the exclusive means provision that 
     was passed as part of FISA. As we have previously stated, we 
     believe that the provision will complicate the ability of 
     Congress to pass, in an emergency situation, a law to 
     authorize immediate collection of communications in the 
     aftermath of an attack or in response to a grave threat to 
     the national security. Unlike other versions of this 
     provision, however, the one 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.
       Oversight and Protections for the Civil Liberties of 
     Americans. H.R. 6304 contains numerous provisions that 
     protect the civil liberties of Americans and allow for 
     extensive executive, congressional, and judicial oversight of 
     the use of the authorities. The bill would require the 
     Attorney General and the Director of National Intelligence to 
     conduct semiannual assessments of compliance with targeting 
     procedures and minimization procedures and to submit those 
     assessments to the FISC and to Congress. The FISC and 
     Congress would also receive annual reviews relating to those 
     acquisitions prepared by the heads of agencies that use the 

[[Page S6200]]

     contained in the bill. Congress would receive reviews from 
     the Inspectors General of these agencies and of the 
     Department of Justice regarding compliance with the 
     provisions of the bill. In addition, the bill would require 
     the Attorney General to submit to Congress a report at 
     least semiannually concerning the implementation of the 
     authorities provided by the bill and would expand the 
     categories of FISA-related court documents that the 
     Government must provide to the congressional intelligence 
     and judiciary committees.
       Title I also includes provisions that would protect the 
     civil liberties of Americans. For instance, the bill would 
     require for the first time that a court order be obtained to 
     conduct foreign intelligence surveillance outside the United 
     States of an American abroad. Historically, Executive Branch 
     procedures guided the conduct of surveillance of a U.S. 
     person overseas, such as when a U.S. person acts as an agent 
     of a foreign power, e.g., spying on behalf of a foreign 
     government. Given the complexity of extending judicial review 
     to activities outside the United States, these provisions 
     were carefully crafted with Congress to ensure that such 
     review can be accomplished while preserving the necessary 
     flexibility for intelligence operations. Other provisions of 
     the bill address concerns that some voiced about the Protect 
     America Act, such as clarifying that the Government cannot 
     ``reverse target'' without a court order and requiring that 
     the Attorney General establish guidelines to prevent this 
     from occurring. We believe that, taken together, these 
     provisions will allow for ample oversight of the use of these 
     new authorities and ensure that the privacy and civil 
     liberties of Americans are well protected.

    II. Title II--Protections for Electronic Communications Service 

       Title II of the bill contains, among other provisions, 
     vital protections for electronic communications service 
     providers who assist the Intelligence Community's efforts to 
     protect the Nation from terrorism and other foreign 
     intelligence threats. Title II would provide liability 
     protection related to future assistance while ensuring the 
     protection of sources and methods. Importantly, the bill 
     would also provide the necessary legal protection for those 
     companies who are sued only because they are believed to have 
     helped the Government with communications intelligence 
     activities in the aftermath of September 11, 2001.
       The framework contained in the bill for obtaining 
     retroactive liability protection is narrowly tailored. An 
     action must be dismissed if the Attorney General certifies to 
     the district court in which the action is pending that 
     either: (i) the electronic communications service provider 
     did not provide the assistance; or (ii) the assistance was 
     provided in the wake of the September 11 attack and was the 
     subject of a written request or series of requests from a 
     senior Government official indicating that the activity was 
     authorized by the President and determined to be lawful. The 
     district court would be required to review this certification 
     before dismissing the action, and the provision allows for 
     the participation of the parties to the lawsuit in a manner 
     consistent with the protection of classified information. The 
     liability protection provision does not extend to the 
     Government or to Government officials and it does not 
     immunize any criminal conduct.
       Providing this liability protection is critical to the 
     Nation's security. As the Senate Select Committee on 
     Intelligence recognized, ``the intelligence community cannot 
     obtain the intelligence it needs without assistance from 
     these companies.'' That committee also recognized that 
     companies in the future may be less willing to assist 
     the Government if they face the threat of private lawsuits 
     each time they are believed to have provided assistance. 
     Finally, allowing litigation over these matters risks the 
     disclosure of highly classified information regarding 
     intelligence sources and methods. As we have stated on 
     many occasions, it is critical that any long-term FISA 
     modernization legislation contain an effective liability 
     protection provision. H.R. 6304 contains just such a 
     provision and for this reason, as well as those expressed 
     with respect to Title I above, we strongly support its 

               III. Title III--Review of Previous Actions

       Title III would require the Inspectors General of the 
     Department of Justice, the Office of the Director of National 
     Intelligence, and of certain elements of the Intelligence 
     Community to review certain communications surveillance 
     activities, including the Terrorist Surveillance Program 
     described by the President. Although improvements have been 
     made over prior versions of this provision, we believe, as we 
     have written before, that it is unnecessary in light of the 
     Inspector General reviews previously completed, those already 
     underway, and the congressional intelligence and judiciary 
     committee oversight already conducted. Nevertheless, we do 
     not believe that, as currently drafted, the provision would 
     create unacceptable operational concerns. The bill contains 
     important provisions to make clear that such reviews should 
     not duplicate reviews already conducted by Inspectors 

                     IV. Title IV--other Provisions

       Title IV contains important provisions that will ensure 
     that the transition between the current authorities and the 
     authorities provided in this bill will not have a detrimental 
     effect on intelligence operations.
       Title IV also states that the authorities in the bill 
     sunset at the end 2012. We have long favored permanent 
     modernization of FISA. The Intelligence Community operates 
     more effectively when the rules governing our intelligence 
     professionals' ability to track our enemies are firmly 
     established. Stability of law also allows the Intelligence 
     Community to invest resources appropriately. Congress has 
     extensively debated and considered the need to modernize FISA 
     since 2006, a process that has involved numerous hearings, 
     briefings, and floor debates. The process has been valuable 
     and necessary, but it has also involved the discussion in 
     open settings of extraordinary information dealing with 
     sensitive intelligence operations. Every time we repeat this 
     process it risks exposing our intelligence sources and 
     methods to our adversaries. Although we would prefer that 
     H.R. 6304 contain no sunset, a sunset in 2012 is 
     significantly longer than others that were proposed and it is 
     long enough to avoid impairing the effectiveness of 
     intelligence operations.
       Thank you for the opportunity to present our views on this 
     crucial bill. We reiterate our sincere appreciation to the 
     Congress for working with us on H.R. 6304, a long-term FISA 
     modernization bill that will strengthen the Nation's 
     intelligence capabilities while respecting and protecting the 
     constitutional rights of Americans. We strongly support its 
     prompt passage.
                                               Michael B. Mukasey,
                                                 Attorney General.
                                                   J.M. McConnell,
                                Director of National Intelligence.


  The PRESIDING OFFICER. The Senator from Rhode Island is recognized.
  Mr. WHITEHOUSE. Madam President, before I discuss for a moment the 
Foreign Intelligence Surveillance Act, I applaud my colleague, the 
distinguished Senator from Pennsylvania, for his remarks. In the year 
and a half we have served together in this body, he has stood out as a 
powerful advocate for consumers, particularly Pennsylvania consumers. 
He has always had a very thoughtful, helpful, and productive approach 
to the solutions he has put forward and espoused. It is an honor for me 
to follow him on the Senate floor here.
  On the question of the Foreign Intelligence Surveillance Act, I will 
talk about the immunity question for telecoms at another time. It is 
not yet clear what amendment will be allowed to be offered. I thought I 
would talk about two other issues at this point. The first is the 
process that has got us here. I do wish to pay particular tribute to 
the chairman of the Senate Select Committee on Intelligence, Jay 
Rockefeller, for how steadfast he has been in pushing through this 
  We in the Senate have also been done a great service by our 
colleagues in the House of Representatives, who stood fast against the 
Bush administration efforts to stampede this legislation through 
without proper negotiation and without the basic process of back and 
forth that ordinarily improves legislation. It has made for a better 
piece of legislation. It also makes for a notable contrast with what 
happened a year ago, when we first took up this legislation.
  I wish to talk for a minute about that because it was a very 
disappointing episode, I believe, in the Senate's history, and it is 
one I wish to make sure we chronicle because it should not be repeated.
  In order to understand what I am going to say, it will be important 
to remember the schedule at the time. I have just replicated July of 
2007, and the early days of August here. The first time the big sort of 
stampede push began, for me at least, was when the Director of National 
Intelligence, Admiral McConnell, met with me on July 11 in the secure 
confines of the Senate Intelligence Committee to tell me what he 
wanted. There had been a big FISA bill that had everything but the 
kitchen sink in it. It was clearly going no place. He realized he would 
have to focus on what he wanted, and he said three things. These are 
from my notes of that meeting.
  No. 1, we need to compel the telecoms to help us; No. 2, we need to 
get foreign-to-foreign conversations, not Americans, foreign-to-foreign 
conversations without having to go to the FISA Court; and No. 3, we 
need a warrant if we are going to wiretap Americans. We accept that.

[[Page S6206]]

  So I said to him: That is fine, but you do not have any legislation. 
We are suspicious of what is going to be in this legislation when it 
shows up, so the sooner you can get it written and the sooner you can 
get it to us the better, because the devil is going to be in the 
details and we need a chance to look it over. That was on July 11.
  The draft legislation was circulated on July 27. It was circulated, 
at least to me, by mail, so I didn't get it on July 27. I got it over 
the weekend, the following Monday, on July 30. The Friday from Monday 
delivery stunt is one we have seen before. But what concerned me was 
that once that legislation was delivered, the Bush administration began 
to whip up everything they could do to try to panic Americans about 
what was going on.
  On July 28, that Saturday, President Bush gave a radio address, 

       Our intelligence community warns that under the current 
     statute we are missing a significant amount of foreign 
     intelligence that we should be collecting to protect our 
     country. Congress needs to act immediately to pass this bill 
     so that our national security professionals can close 
     intelligence gaps and provide critical warning time for our 

  He asked us to work together to pass FISA modernization now, before 
we leave town, and said our national security depends on it. That is 
what he said here.
  The Senate promptly picked up the chorus with one of my colleagues 
saying we would be deaf during August to discussions of threats being 
carried on by al-Qaida and others seeking to do us harm if we did not 
pass the legislation.
  Another colleague said:

       This is a time when the Director of National Intelligence 
     and the Secretary of the Department of Homeland Security have 
     said it is a high threat month and it is imperative for 
     national security that we adopt this now.

  Another one of our colleagues said:

       Make no mistake, inaction on our part needlessly subjects 
     every American to increased danger. We need to act.

  Those are just several high points of a real campaign to try to drive 
this issue by public fear.
  Well, here is what concerned me. If, when the President spoke on July 
28, national security was that vitally affected by the speed of this 
legislation; if every day that went by we were missing intelligence, 
because of an intelligence gap, of al-Qaida plots that were being 
developed then and there to attack us; if that were true also on the 
3rd, why wasn't it true back here on July 11 and 12 and 13, 14, 15, and 
all the way through here when they circulated the draft on July 27?
  Here is what they sent us. This. It is 12 pages. That is it. Double 
spaced. I could write 12 pages of legislation double spaced in 17 hours 
if our national security depended upon it. It would not take me 17 
days. So when it takes them 17 days to write 12 pages of legislation 
and then deliver it on the Monday before we recess and suddenly there 
is an explosion of concern about immediate al-Qaida attacks that are 
being planned that we need to get into, something does not add up. I 
believe the result was what I call the August stampede, and as a result 
we passed, bluntly, a very poor piece of legislation, the so-called 
Protect America Act.
  This piece of legislation does a number of very good things to repair 
some of the damage in the Protect America Act.
  The first is protection for Americans when we travel abroad. 
Americans travel a lot now. They travel on business, they travel on 
vacation. It is a lot more expensive now given the Bush 
administration's oil prices, but people still travel a lot. The rule 
had been, under the Protect America Act, that if you were traveling 
abroad, you had no statutory or judicial protection of your privacy, 
none whatsoever. They could listen to your telephone calls, they could 
take your BlackBerrys, e-mails, anything--it was open season. There 
were no statutory or judicial protections for Americans once they set 
foot outside of the country. The only protection was an executive 
order, 12333, which said that if the Attorney General determined that 
you as an American were an agent of a foreign power, then they could 
listen, then they could surveil, then they could intercept, but only if 
the Attorney General made that determination. So there was a 
protection, but it was only an executive order--nothing statutory, 
nothing judicial. Then we looked into the opinions that underlie the 
Bush warrantless wiretapping program, and here is what I found.
  The flaw in the Protect America Act is that it contained no 
statutory, no judicial protections for Americans once they were 
traveling abroad and put them at the mercy of the executive branch of 
Government to be wiretapped at will, protected only by an Executive 
order. Our discovery, in the course of looking at the classified legal 
opinions that supported the warrantless wiretapping program, we 
discovered this rule that had been inserted by the Office of Legal 

       An executive order cannot limit a President. There is no 
     constitutional requirement for a President to issue a new 
     executive order whenever he wishes to depart from the terms 
     of a previous executive order. Rather than violate an 
     executive order, the President has instead modified or waived 

  Well, as a theory, I think that is, frankly, deeply flawed legally.
  In my examination of Attorney General nominee Mukasey, I asked him 
what the force of an Executive order was. He answered me saying:

       Should an executive order apply to the President and he 
     determines that the order be modified, the appropriate course 
     would be for him to issue a new order, or amend the prior 

  I think that is not only the correct but the obvious solution. But we 
were left in a situation in which an American traveling abroad, without 
statutory protection, without judicial protection, and with the only 
protection from the executive being a protection that the President 
cannot be limited by and that he can ignore at will--frankly, that was 
no protection at all.
  So we worked very hard in the committee--and it has persisted through 
the entire lengthy process we have been involved in--to make sure that 
an American, whether you are in the United States or traveling abroad, 
has the protection of a judicial order before your Government can 
wiretap you. And that has been achieved. That has been an important 
  A second achievement has been in the area of minimization. I know the 
Presiding Officer was a prosecutor in Minnesota. I have run wiretap 
investigations as a U.S. attorney, I have run wiretap investigations as 
an attorney general, and I have seen firsthand how important 
minimization is to a wiretap investigation.
  Minimization is what happens when you have the authority to wiretap 
somebody, but because you have the authority to wiretap one person, 
they could be talking to somebody else who is not part of the criminal 
or national security activity involved, and if that proves to be the 
case, you have to minimize that to protect the rights of the third 
person they are talking to. In the old days, the FBI agents would 
literally sit there with their earmuffs on listening and flip the 
switch on and off to see whether the conversation was still an innocent 
conversation or related to some criminal matter.
  Now it is more complex, but those minimization procedures did not 
previously have any judicial oversight. They only were required to be 
filed. Under this bill, the Attorney General shall adopt minimization 
procedures. It is mandatory. But more than that, the Foreign 
Intelligence Surveillance Court is given authority to review those 
minimization procedures; specifically, to determine whether those 
procedures meet the statutory standards we require for minimization 
procedures. So that is particularly important.
  Finally, this statute for the first time recognizes ``the inherent 
authority of the FISA Court to determine or enforce compliance with an 
order or a rule of such court.'' So they not only get the minimization 
procedures, they get to approve the minimization procedures. If it is 
determined that the executive branch isn't following them, they can 
check for compliance, and they can enforce the procedure. That is a 
substantial, additional improvement that brings this in line with the 
traditions of wiretap surveillance within the United States.
  Another significant improvement has been in the area of exclusivity. 
FISA has always said that ``it shall be the exclusive means by which 
electronic surveillance . . . and the interception of domestic wire, 
oral, and electric communications may be conducted.''
  That was clearly the intent of Congress, as courts, including in the

[[Page S6207]]

Andonian decision, have agreed. However, we have a problem again with 
the Office of Legal Counsel. The Office of Legal Counsel said this:

       Unless made a clear statement in the Foreign Intelligence 
     Surveillance Act that it sought to restrict presidential 
     authority to conduct wireless searches in the national 
     security area--which it has not--then the statute must be 
     construed to avoid a reading.

  I don't know how you get ``which it has not'' out of the clear 
language of the Foreign Intelligence Surveillance Act saying this is 
the exclusive means. But once we found out that in these classified 
opinions the Office of Legal counsel had suggested this language right 
here either didn't exist or didn't mean anything, it had to be solved. 
Thanks to the leadership of Senator Feinstein, in particular, there has 
been great energy put into improving the exclusivity provision. I think 
it is now an exclusivity provision that would defeat this type of, 
frankly, improbable legal analysis and clearly define that it is 
Congress's intent in the FISA statute to take every possible avenue it 
can to limit executive surveillance activities to those that are 
performed within the statutory authority of this particular 
  The last thing is reverse targeting. There has been considerable 
concern about allowing the Government to identify a foreigner who is in 
touch with Americans regularly and target that foreigner with the 
reverse targeting purpose to actually pick up the conversations of the 
American and dodge the requirement for a warrant for judicial review 
vis-a-vis the American. There are strong provisions in here that 
require that regulations and procedures be developed to prevent that.
  I hope to be able to discuss the statute further, as we get to the 
discussion about immunity. But I will conclude by summarizing that the 
process we went through to get to this piece of legislation, 
particularly article I of this bill, was a very proud moment for this 
Senate and for this caucus, for Chairman Rockefeller. It has been 
infinitely better than the degraded process we went through last August 
in the atmosphere of stampede. I think the quality of the underlying 
legislation shows it. I hope as we continue to work together in the 
Senate on other issues, we continue to follow the process that took 
place with respect to this iteration of the FISA bill, and we never go 
back to the kind of hectic, imprudent stampede we were put through last 
August. Second, the elements of article I are improved. This is, in 
article I, a bill we can we very proud of. We will have our dispute 
about the immunity provisions. I will have my thoughts on that for 
later. But there is much that has been accomplished and great credit is 
due particularly to Chairman Rockefeller for those accomplishments.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. REID. I ask unanimous consent that the order for the quorum call 
be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


[Congressional Record: June 26, 2008 (Senate)]
[Page S6213-S6214]


  Mr. BOND. Mr. President, I know this is morning business, but I need 
to get people's attention back on FISA, I hope. Let me clarify some 
things that have been said earlier today. From time to time, some have 
tried to rewrite the history on what happened 1 year ago in producing 
the Protect America Act, our first attempt to fix the problems with 
foreign intelligence surveillance 1 year ago. That was not pretty, but 
I note there have been mischaracterizations of it. After last year, 
many critics of FISA, most notably in the House, tried to rewrite 
history and discredit ADM Mike McConnell, the Director of National 
Intelligence, and this compelled me to speak out on the matter at this 
time. He, in my view, from what I saw, acted in good faith, and he was 
charged with not having done so. But it seems there is another effort 
today to rewrite history. I can say, as vice chairman of the Senate 
Intelligence Committee and the cosponsor of the Protect America Act, I 
was the lead negotiator during the final hours of the Congress, as we 
tried to pass a critical short-term update of our Nation's law 
governing terrorist surveillance.
  As one who was there, I dispute the misinformation that was spread 
and largely by those who were not there. I will outline the events as 
they occurred, and here is what happened.
  As I think most of us know, in January 2007, the President announced 
that the terrorist surveillance program was coming under the FISA 
Court. Our Director of National Intelligence, Admiral McConnell, 
subsequently stated that after that time, the intelligence community 
lost a significant amount of collection capability and that, combined 
with increased threat, compelled him to ask Congress to modernize FISA, 
sooner rather than later.
  On April 12, Admiral McConnell sent his full FISA modernization 
proposal to Congress, and on May 1 he presented it in open session to 
the Senate Intelligence Committee.
  Some would like us to believe that was the first time this became an 
issue for us, in July, but it was not. The DNI had appeared in open 
session before the Senate Intelligence Committee and had pleaded with 
us to update FISA months earlier.
  I might say, along with another colleague of ours on the Senate 
Intelligence Committee, Senator Bayh, we visited Iraq in early May of 
2007, and the Joint Special Operations Commander, LTG Stan McChrystal, 
told us at that time that the blockage in electronic surveillance by 
FISA was substantially hurting his ability to gain the intelligence he 
needed to protect our troops in the field and gain an offensive 
advantage. I believe I, and perhaps Senator Bayh, spoke about that in 
committee and on the floor.
  Immediately following the admiral's testimony in May, I had urged the 
Intelligence Committee immediately to mark up FISA legislation. I was 
told by members of the majority that until the President turned over 
certain legal opinions from the terrorist surveillance program, 
Congress would not modernize FISA. That Congress would hold America's 
security hostage to receiving documents from a program that no longer 
existed was disheartening to me. We had already received an inordinate 
amount of documents from the Department of Justice and the Director of 
National Intelligence. Yet I do not dispute the desire or the right of 
members to seek privileged documents from the executive branch. In 
fact, I joined in requesting some of that. But I did disagree with 
holding up FISA modernization when those documents were not necessary 
to do that.
  Despite the urging from the Director of National Intelligence, and 
knowing this outdated law was harming our terrorist surveillance 
capabilities, for

[[Page S6214]]

more than 3 months Congress chose to do nothing. Let me be clear, it 
was Congress that chose to ignore the pleas of the intelligence 
community. As a matter of fact, in late June, Admiral McConnell had a 
briefing for the entire Senate. I believe about 42 to 44 of us showed 
up there. He briefed Members of the Senate, again urging us to 
modernize FISA. Finally, his pleadings began to gain traction.
  In mid-July, Members of Congress agreed to discuss a short-term, 
scaled-down version of FISA to protect the country for the next few 
months before we could address comprehensive reform in the fall. 
Admiral McConnell immediately sent Congress his scaled-down proposal.
  Over the next week, Admiral McConnell was given nearly half a dozen 
versions of unvetted proposals from various congressional staffs across 
Congress and then pressed for instant support of these proposals. The 
admiral returned a compromise proposal to the Senate, including some of 
the provisions requested. Unfortunately, there were numerous bait and 
switches that took place during that time.
  Since the bipartisan committee process was circumvented to craft 
legislation behind closed doors without input from the relevant 
committee and the minority, it got messy in the final hours. Even as 
the vice chairman of the Intelligence Committee, I was excluded from 
the key meetings. Not only was I excluded, most members of the 
Intelligence Committee, Republican and Democratic, were left out of the 
  Therefore, in the waning moments before the recess, I got together 
with a number of Democrats, including several from our Intelligence 
Committee, to discuss the short-term approach for the Protect America 
Act that Leader McConnell and I had introduced and which had the 
support of the DNI and the Department of Justice.
  Finally, on August 3 and 4, Congress, on a strong bipartisan basis 
and a desire to get out of town for the August recess, passed the 
Protect America Act.
  That was why it was jammed up. The administration was not trying to 
stiff us. The administration felt it was being stiffed. Fortunately, a 
solid, bipartisan majority of the Senate came together, passed the 
bill, and gave the House, regrettably, no choice but to pass it--which 
they did. But after the passage of the act, I think we all learned a 
good lesson. We sat down together on the Senate Intelligence Committee 
and began, on a bipartisan basis, to work out a permanent solution to 
FISA. I am very thankful we could do it. We put in a great deal of 
work. We spent a lot of time with the DNI, with the lawyers and the 
operatives for the program, and Senator Rockefeller and I worked, in a 
bipartisan fashion, to come up with a strong committee bill that we 
passed out of the Senate later on a 68-to-29 vote.
  I thank my colleagues on the committee, their staff, and all the 
Members of Congress who supported us, particularly the 68 who came and 
voted aye to pass the FISA amendments in February.
  That started the process that led us to where we are today. There is 
a strong bipartisan product before us. There were changes, cosmetic 
changes largely, made that the House believed were important and the 
intelligence community assured us would not interfere with their 
ability to collect information under the structure we had set forth in 
the FISA amendments that were passed by the Senate.
  That is where we are today. I am ready, willing, and able, whenever 
it is the will of the leadership, to act on amendments that may be 
before us and try to pass this bill so we will have some certainty for 
the intelligence community that they will know what the guidelines are 
for the next period through 2012.
  In any event, I will be back when we get on the bill to go over some 
of the items which are in question. But I think you see our chairman, 
Senator Rockefeller, who is on the floor, and I can assure you this is 
a good, solid, bipartisan bill that we should pass.
  I see it is a good time to yield the floor.
  The PRESIDING OFFICER. The Senator from Montana is recognized, 
pursuant to the previous order.