[国会记录：2008年1月29日（参议院）][第S403-S404页]FISA里德先生。总统先生，我希望每个人——特别是我的共和党同事，特别是白宫的人们——都能听到我要说的话。FISA，如果我们今天不采取行动，它将过期。它将停业。众议院今晚将休会，所以除非我们向他们提出30天的延期，否则我们已经尝试向前推进了五六次，除非我们有18个月，一年，两周的延期，无论共和党人认为什么是合适的——如果他们认为没有什么是合适的——那么这项即将到期的法律的最大冲击就落在他们的肩上，因为从立法上讲，今天几乎不可能完成任何事情。记住，房子已经做了他们要做的事情。如果我们采取情报委员会通过的措施（这很可能不会发生），我们将不得不与众议院举行一次会议。他们今晚要休会。他们星期三、星期四和星期五出城。因此，除非我们今天采取行动，否则这项法案将不会获得通过，我们去年8月通过的立法也将到期。现在，自去年8月以来寻求并完成的命令仍将有效，当然，根据旧的FISA法，将有机会[[第S404页]]紧急处理他们想做的新事情。我们想保持追踪坏人的能力。我们认为有必要截获那些试图做坏事的人之间的电话交谈。我们认为这应该在宪法框架内，我们相信这就是情报委员会和司法委员会所做的。但我再次说，不谈任何细节，除非我们今天做点什么，除非有人能向我解释我们如何在几个小时内通过这里，我们如何在几个小时内与众议院举行会议，然后在几个小时内将这两份会议报告提交给众议院和参议院——我认为这在立法上是不可能的。因此，我再次对我的共和党同事们说：同意延长一些时间，否则这项立法不能通过的负担就在你们的肩上，因为我们没有试图立法。我们没有机会提出修正案，更不用说就修正案进行表决了。我们的目标是为情报界提供所需的所有法律工具，同时保护守法美国人的隐私。所以我希望在接下来的一个小时左右，我们能在房子离开之前解决一些问题，否则什么都不会完成[国会记录：2008年1月29日（参议院）][第S404-S406页]FISA麦康奈尔先生。总统先生，我们知道我们需要将FISA法延长6个月——6个月。我还听到有人建议，如果法律到期，不知何故，几乎不会造成损害。嗯，这是完全错误的。随着该法案在3天内到期，追求新目标的能力将被消除。我们还有3天，我从另一边的好朋友那里听到的消息来看，真正的可能性是，另一边的一些人至少愿意让法律失效。现在,与一些人所说的相反,这一重要的反恐工具的失效产生了严重后果,；也就是说，如果我们不能完成这项工作，那么认为它不会产生任何影响的想法肯定是不正确的。让我再说一遍：一旦它过期，情报官员将无法再收集关于新的——新的——外国恐怖主义目标的情报。恐怖分子不会因为我们停止监视他们的活动就停止策划新的袭击。我们的敌人正在监视。他们知道，一旦《保护美国法》到期，我们的情报能力就会下降。这就是为什么我们需要重新授权FISA，这样我们才能保留它的全部——全部——反恐力量。参议院情报委员会的版本就是这样。这是洛克菲勒-邦德两党提案，由第13至第2委员会提出。参议院共和党人随时准备完成委员会和政府开始的出色工作。我们向另一方的同事提出了一份清单，列出了几项可以获得投票的修正案。我知道这些讨论正在进行中，希望我们能够开始进行一些投票。但我们没有时间通过修正案来重建司法委员会版本的修正案，参议院两党多数已经否决了这一版本。即使我们通过了它也不会成为法律。现在，共和党人准备在短期内延长《保护美国法案》，以使参议院关注这一关键反恐工具的重要性。但在等待了10个月之后，我们不需要——国家也无法承受——再拖延一个月。我们ReportsReportsawait the response of our Democratic colleagues to our amendment proposal, and those discussions, as I indicated, are going forward, and we look forward to finishing the job in a way that allows our intelligence professionals to keep us safe from harm. I yield the floor. The ACTING PRESIDENT pro tempore. The majority leader is recognized. Mr. REID. Mr. President, we understand the implication of the legislation that is now in effect and will expire Thursday. We understand that. We understand there are new targets our intelligence officials may want to go after. We understand that. But I repeat: Using the words of my friend, the Republican leader, once it expires, if it expires, it is on the shoulders of the White House and the Republicans in the Senate. We have attempted to work through this, and we have been willing to extend this law for an extended period of time. We have been willing to extend the law for a limited period of time. I think what this all boils down to is that we should extend the law for a long period of time because the only issue--there are other issues, of course, but the main issue is whether there will be retroactive immunity for the phone companies. That is what it all boils down to--whether there is going to be retroactive immunity to the phone companies. Some of us don't think that is appropriate; others think it is appropriate. So why don't we extend this law for an extended period of time? That way, the new targets could be sought if, in fact, they are out there-- and we all believe there are some, and that is necessary to be done-- and then set up a time. We will agree to a time and have a debate on the immunity provisions and see if the Senate and the House are willing to give retroactive immunity. In the bill my distinguished colleague, the Republican leader, talked about that came from the Intelligence Committee, that is in that bill. That is in their bill that came from committee. What the House has done doesn't have it in there. So why don't we have a debate on that issue and just extend the law? We will extend it until there is a new President. We are fine--we are happy to do that--so that we get off this: We can't do the targets. Why don't we just extend it for a period of time, and then our side will agree to try to work out something legislatively so that we can have a real nice debate on retroactive immunity. Mr. DURBIN. Mr. President, will the majority leader yield for a question? Mr. REID. I am happy to yield. Mr. DURBIN. Mr. President, I would like to ask the Senator if he could recap for me two votes that I think are significant. There was a vote taken as to whether the Judiciary Committee version would be accepted. A cloture vote was taken, if I am not mistaken, and it was defeated. If I am not mistaken, that was last week. And if I am not mistaken as well, yesterday, when Senator McConnell offered a cloture motion to promote his point of view, there were only 48 votes in support of it out of the 60 that were necessary--4 from our side of the aisle, 44 from the Republican side. It seems to me we need to put our heads together to work this out. Extending this law so that there is no damage or hazard to our country is a reasonable way to do this. We now have reached a point where amendments may be considered and voted on, and then we will be in a spot where we can pass a version in the Senate, send it to conference, and work out our differences. But I can't understand how the President and the Republican leader can come to the floor and blame us for the expiration of the law if we are offering an extension of the law and they keep refusing. Mr. REID. Mr. President, I say to my friend, the distinguished Senator from Illinois, I personally have been to the floor and offered on many occasions to extend the time. We could all see the train wreck coming, and we believed that it was necessary to extend this law. I don't know--I say very positively to my friend from Illinois and everyone who can hear me--I don't know if we can work anything out on these amendments. I don't know. On the title I aspect of it, one Senator has six amendments. I am sure--he has always been a reasonable person--he wouldn't have to offer that many. He has always been very good about time agreements. But there are 10 or 12 amendments to title I. Then there are three we have with title II dealing with some form of immunity. But I repeat to my friend, Democrats believe the program should continue. [[Page S405]] We are willing to say, OK, let it continue as it is now in effect. A lot of people don't like that. We are saying go ahead and let it continue. Certainly, there could be a significant majority of Senators--Democrats and Republicans--who will support that. And the issue is immunity. I reverse the question and ask my friend from Illinois, should we not have a nice debate on immunity and find out how the Congress feels about what the President feels is important? That is how this country has worked for all these years. So extend this and do it until we have a new President--Democrat or Republican, man or woman, whoever it might be--and in the meantime have a decision made as to whether there should be retroactive immunity. Mr. DORGAN. Will the Senator yield for a question? Mr. REID. I will, but let my friend from Illinois answer that question first. Mr. DURBIN. Mr. President, I say to the majority leader, it appears now that the Senate has to work its will. When the Judiciary Committee proposal was suggested, it didn't pass. When the Senator from Kentucky offered his cloture motion for his side, it didn't even have a majority vote. It had 48 votes in support, let alone the 60 that were required. I don't think we can expect to impose our will on this body. The Senate has to work its will. We could have considered a lot of amendments in the time we have lost so far in debate. I say to the majority leader, how can we be held responsible for this law expiring if it is the Republicans who opposed extending the law? You have offered repeatedly to let them extend the law. They have said no. Mr. REID. Mr. President, I say to my friend, let's extend it for any period of time, although I think that for each day it should be a longer period of time. Mr. McCONNELL. Will the majority leader yield for a question? Mr. REID. I will after I have yielded to the Senator from North Dakota. If anyone thinks we are going to come to an immediate agreement on all these amendments, we have overused the term ``run the traps,'' but the Republicans are not going to agree to all of the amendments the Democrats want to offer. I will respond to my friend from North Dakota. Mr. DORGAN. Mr. President, this is a complicated and certainly an important issue. It seems to me that it takes two sides to compromise. One of the things I am curious about, as I listened to this and to the Senator from Kentucky, the minority leader said we are ready to move forward. He said he is disappointed in the delays. Isn't it the case, however, that last week, when the cloture motion was filed by the Senator from Kentucky, they decided at that point to block everything else and stop everything from happening until this week? It seems to me this delay has occurred because the other side has blocked the ability to offer amendments. Had we offered amendments, we would have probably been done with that at this point. I say that there is not anyone in the Senate I am aware of--no one-- who doesn't believe we ought to extend this FISA law. Nobody is in that position. Isn't that the reason for the delay and the reason we have not moved forward--that we were blocked when the Senator from Kentucky filed his cloture motion? Mr. REID. Mr. President, I say to my friend, you were at the meeting with me just from 9 to shortly before the hour of 10 o'clock. A person who is heavily involved in this legislation, the distinguished Senator from Wisconsin, Russ Feingold, said this legislation should be extended. He has, on many occasions, voiced his opinion on what is wrong with the way we passed this legislation in August, and he has been very strong in his comments about how this law could be improved. Every Democrat in our caucus believes this law should be extended. I don't like to speak for everybody, but Senator Feingold believes the law should be extended because it is the right thing to do. I cannot imagine why we have had all the difficulty we have had in extending this law. On a number of occasions, we have said if the law expires, it is not our fault. Now I am happy to yield to my friend from Kentucky. Mr. McCONNELL. I thank my good friend. Mr. President, he indicated that the principal issue we are sparring over is the question of immunity from litigation for communications companies that cooperated in protecting our country. I am sure the majority leader knows that yesterday my side offered to his side a vote on the Dodd-Feingold amendment related to that issue, and a vote on the Specter-Whitehouse amendment related to that issue, and that package was rejected. Mr. REID. Yes. I say to my friends, there are also other amendments. We talked about title I, and there are a number of amendments. I think we can reduce those on that side to maybe eight. They would all be short time limits. They would also make sure the record reflects that we believe they should be majority votes, not 60-vote margins. Mr. McCONNELL. Is the majority leader yielding the floor? Mr. REID. Yes, I am happy to. Mr. McCONNELL. Mr. President, this is the kind of discussion, of course, that the Senate is witnessing that typically occurs between the majority leader and myself and managers of the amendments. To sum it up, this is the kind of legislative finger-pointing that turns the public off. But it is the way in which we go forward. We had discussions yesterday about voting on the very issues the majority leader just indicated are the key issues relating to this bill. Hopefully, during the course of the day, we will be able to come together and have the votes on the key amendments and move forward. The President, of course, is not going to sign a lengthy extension or a 30-day extension. Any hope that we will extend existing law without dealing with the retroactive liability issue is a waste of energy and time. That isn't going to happen. So we are going to focus on this bill and, hopefully, find a way to go forward and let the Senate work its will. If the House chooses to leave tonight, I find that a highly irresponsible act--right before the expiration of this very important law. There isn't anything more important that we are doing right now, with the possible exception of trying to figure out a way of going forward to stimulate our economy and prevent an extensive slowdown, than getting the homeland protected. A key ingredient in securing that protection, we know, is getting this FISA law right and getting it passed--not some kind of short-term extension. The terrorists are not going to take a vacation for a few weeks or for 6 months or next year; they are going to be around for a while. We need to get this right and do it now, and today is a good day to get started. I yield the floor. Mr. REID. Mr. President, if this law is so good and we are able to, in the words of the Republican leader, ``get new targets,'' why don't we extend the law? I don't understand why we are not doing that. I tell everyone again that it is legislatively impossible to do anything as it relates to this legislation, as far as passing it today. It is impossible. We have a number of amendments that have to be handled. It is going to take a matter of quite a few hours. We can do it in 1 day, I think. Remember, we have to have everybody agree to that, all 100 Senators. Then the House has to agree to what we do or we have to agree to what they do or work out a compromise in conference. That cannot be done tonight. This is the last day we have to legislate. If we don't legislate today, we are going to move on to something else in a few minutes, because there is no agreement on FISA--to extend it. I think that is unfortunate. Having said it so many times already--and I am tired of hearing myself say it--if the law expires, Democrats have no blame whatsoever. Mr. McCONNELL. Mr. President, let me wrap it up for myself by saying that we will be staying on this bill. We will not leave this bill. Secondly, this is a bipartisan compromise that came out of the Intelligence Committee by a vote of 13 to 2, the Rockefeller-Bond bipartisan bill, which is supported by the President of the United States. That is the Senate at its best--a bipartisan bill. The President is willing to sign it. Our effort [[Page S406]] here is to get it to him for his signature. He awaits our action. I yield the floor. Mr. REID. Mr. President, this bill is not a bipartisan bill. The bill that came out of the Intelligence Committee is bipartisan, but understand it was concurrently referred to the Intelligence Committee and the Judiciary Committee. They both have jurisdiction over this legislation. We cannot pick and choose what the President likes. We have a situation here where the Judiciary Committee is entitled to be heard. That is what they are asking for--to be heard. They demand that and it is appropriate. ____________________ [Congressional Record: January 29, 2008 (Senate)] [Page S406-S407] FISA Mr. MARTINEZ. Mr. President, I wish to talk about the very important issue relating to foreign intelligence surveillance. I want to talk about it not in the sense of who gets to be blamed if something happens. I believe that on something of this magnitude, the American people are pretty tired of the blame game: We would have done this, but if you didn't do that, we blame you; and if this happens, you get to blame us. I think the time of blame-casting has well passed. The fact is that the laws that grant the Government the authority to use the resources we have in order to stay informed of what our enemies are seeking to do to us are outdated and need to be modernized and put up to date with our current technology. We are fighting a modern war against a modern enemy. The tools we have to fight that war are out of date. One of the only ways we are able to expose and stop terrorist plots before they unfold is through the provisions accorded under FISA. Some of my colleagues have expressed an understandable concern about the current FISA reauthorization, and whether it would improperly invade the civil liberties of our citizens. After 2 years of public debate on the broad issues of FISA, and after reviewing the current legislation, I believe those concerns are unwarranted. This issue transcends the stance of either political party or any partisan interest. Those who oppose this are sincere in their concern; they just happen to be wrong. Needless hurdles will be created for our Government in the obtaining and utilizing of valuable intelligence to keep America safe. So I want to see us address this issue head on and come together and send the President a bill that he can and will sign. The President spoke about this last night in his State of the Union Message. He wants to get this matter resolved, and he wants a bill on his desk. We owe it to the military and the intelligence community to equip them with the tools they need to protect our citizens and carry out their duties effectively. Throughout our history, Americans have always been concerned about the proper balance between security and freedom. Those concerned about the power of Government and trampling on the rights of free citizens are right to insist on maintaining the individual liberties granted to us by the Constitution, especially during a time of crisis. The bill we are considering is precisely concerned with maintaining and keeping a proper balance of those protections. This is a bipartisan bill. It was reported out of the Intelligence Committee by a vote of 13 to 2. It is a modern update that is designed to keep our technological edge and to effectively implement the goals of the original FISA law passed in 1978. This bill is the product of the careful consideration of Members of both sides of the aisle on the Intelligence Committee--those best informed about these matters, who have the most knowledge about the means and methods by which we gather intelligence. Those Members recognize a need to modernize the way our intelligence is collected and the need to share information that is vital to terrorist communications, whether these communications be on a cell phone, by e-mail, or in person. This bill is for the American intelligence services to be able to timely develop intelligence without having to wait for a court order. In other words, if a terrorist group such as al-Qaida calls a sleeper cell within our borders, this would ensure that our Government can protect our citizens, the specific procedure for surveillance, and it ensures that the independent FISA Court is fully informed of every step in the process. The bill also has a provision to protect those who have assisted us and the intelligence community in gathering information that was absolutely vital to our national security. Fortunately, we have had full cooperation from a number of telecommunications companies in providing our intelligence officials with accessing and obtaining information from foreign terrorists. As we look at this issue--and the majority leader says this issue is the big sticking point, so let me talk about that specifically, that this retroactive immunity for telecommunications companies allows bad actors to get off the hook--who is it we are giving immunity to and why should it be retroactive? This has already been noted a number of times, but I think it bears repeating. Retroactive immunity is necessary not only to protect companies that cooperated in good faith at the request of our President during the time of the most serious domestic crisis our country has ever faced, but it was done to ensure our national secrets regarding intelligence methods remained classified and are not disclosed in public through the civil court process. In other words, it is not just about providing immunity to those who helped at the time it was needed, but it is also to ensure that as we go forward, we are not going to have an O.J. Simpson-type trial, with television cameras blaring with information being disclosed. We know things do not keep. We know our enemies are capable of getting the information because it will be in the New York Times. The fact is, we want to keep our methods and sources secret and confidential, and this is a very important part of this immunity idea. If you want accountability for the executive branch, we have a constitutional system of checks and balances, and leaving aside the President's authority under article II, we are exercising congressional oversight in passing S. 2248, and we, along with the FISA Court, are certainly going to be able to pay close attention to how we select intelligence going forward. As far as letting bad actors off the hook is concerned, S. 2248 provides retroactive immunity from civil litigation if a series of conditions are met. The assistance was provided in connection with intelligence activity authorized by the President between September 11, 2001, and January 17, 2007, and was designed to detect or prevent terrorist attacks against the United States. What is wrong with that? The assistance was also to be provided in response to a written request, a directive from the Attorney General or other intelligence community head indicating the activity had been authorized by the President and determined to be legal. To me, it is a good idea to give these folks the kind of immunity that will allow them to continue to cooperate, that will say to them: The next time there is a vital emergency where your cooperation is needed, we didn't stick you with the bill, we didn't allow the courts to go wild. We protected you because you protected America. To me, that seems only fair and only right. I hope we can get through the partisan morass that always seems to entangle us. I hope we can find a way we can pull together something of this magnitude and importance, which is about the national security of our country--it is about the intelligence needs of our intelligence community--and that we can come together in a timely fashion, craft this bill, take the bill the Senate Intelligence Committee passed on a bipartisan 13-to-2 vote, put [[Page S407]] it up for a vote, let's take the amendments that are available, move it forward, get a vote, and get a bill to the President that he can sign. I yield the floor. The ACTING PRESIDENT pro tempore. The Senator from Tennessee. Mr. ALEXANDER. Will the Chair kindly let me know when I have used 8 minutes? The ACTING PRESIDENT pro tempore. The Senator will be notified. ____________________ [Congressional Record: January 29, 2008 (Senate)] [Page S420-S423] FISA Ms. SNOWE. Mr. President, I rise today as a member of the Select Committee on Intelligence to discuss the pending legislation to modernize the Foreign Intelligence Surveillance Act that was originally passed in 1978. At the outset of my remarks I would like to first express my sincerest appreciation to the chairman of the committee, Senator Rockefeller, and the vice chair, Senator Bond, for their exceptional leadership in working in a concerted, cooperative manner to shepherd the Intelligence Committee bill through the legislative process in a strong, bipartisan manner. As my colleagues know, the act is set to expire on February 1--less than a week from now. It is imperative that Congress pass legislation reflecting the [[Page S421]] will of this body and send it to the President's desk for enactment. At a time when al-Qaida lurks in the shadows, making no distinctions between combatants and noncombatants, between our battlefields and our backyards, we as lawmakers must work with firm resolve to ensure that the intelligence community possesses the tools and the legal authority that is required to prevent future terrorist attacks on our soil. Yet in the wake of years of controversy surrounding the Terrorist Surveillance Program, we all must be mindful of our duties to uphold the constitutional protections as old as this Republic. I do not believe these goals are mutually exclusive. The Foreign Intelligence Surveillance Act, commonly known as FISA, establishes a distinct system of laws and regulations for the Government's ability to legally conduct national security-related surveillance of communications. The Intelligence Committee proposal, which was reported out on a strong 13-to-2 bipartisan vote, does not present the ideal solution to the urgent matter before us, underscoring the difficulties and complexities that are presented by the question of intelligence surveillance. However, it is a marked improvement over the Protect America Act and represents the collective agreement of 13 of the 15 members of the Intelligence Committee, both Republicans and Democrats. I appreciate the disparate views that many of my colleagues on both sides of this aisle espouse, but in the end, the Senate must work to achieve its will and to find the common ground that is so essential on this issue for our Nation's security. For Congress to be relevant, it must ultimately come to a legislative resolution and conclusion. The underlying premise of FISA recognizes that obtaining a standard search warrant through a typical Federal or State court is not appropriate when dealing with sensitive security operations and highly classified information. In creating separate legal mechanisms for such matters, FISA has, for nearly 30 years, relied upon the rulings of the special Foreign Intelligence Surveillance Court and continuous congressional oversight in ensuring that fourth amendment protections against unreasonable searches and seizures are respected. Although FISA is and remains an indispensable tool in the war on terror, it was written almost 30 years ago--long before the name ``al-Qaida'' rang with any significance--and it has begun to show its age. FISA was enacted before cell phones, before e-mail, and before the Internet, all of which are used today by hundreds of millions of people across the globe. Unfortunately, those numbers include terrorists who are using these tools for planning, training, and coordination of their operations. Put simply, FISA's technology-centered provisions do not correspond to the systems and apparati that are used in communications today. As Admiral McConnell, Director of National Intelligence, said most bluntly and straightforwardly: FISA's definition of electronic surveillance [has] simply not [kept] pace with technology. But we all know this is not the only backdrop to FISA reauthorization. Prior to December 2005, only the party leaders in both the House and the Senate, and the chairmen and ranking members of those Houses' respective Intelligence Committees--the so-called gang of eight--had any knowledge that warrantless surveillance was occurring on U.S. soil with neither court approval nor congressional authorization. Once the program came to light, the administration asserted it had the legal authority to conduct such surveillance anyway, citing considerably tenuous interpretations of both article II of the Constitution and the 2002 authorization for the use of military force in Iraq. This was not the power-sharing construct between the three branches of Government under which FISA had operated for nearly three decades. Rather, this was a unilateral exercise of executive branch authority to the exclusion of the other two. The use of unchecked executive power was neither how the Framers of the Constitution nor the framers of FISA intended this matter to be addressed. Accordingly, less than 2 months later, I, along with Senators DeWine, Hagel, and Graham, introduced the Terrorist Surveillance Act of 2006, which called for strict legislative oversight and judicial review of the program. A number of colleagues joined the effort with a variety of additional proposals to both exert congressional oversight, as well as to modernize FISA; and the administration, bowing to this collective congressional pressure, finally permitted full access to the NSA program by members and staff of both Intelligence Committees. Congressional leverage also led the Attorney General this past January to submit the terrorist surveillance program to the requirements of FISA, including appropriate review of Stateside surveillance requests by the Foreign Intelligence Surveillance Court. At the time this was viewed as a step toward some restoration of the rule of law and constitutional principles, and FISA reform efforts focused on modernizing the statute for technological purposes. Yet, as noted in the Intelligence Committee's report on the FISA Amendments Act of 2007, At the end of May 2007 . . . attention was drawn to a ruling of the FISA court . . . that the DNI later described as significantly diverting NSA analysts from their counterterrorism mission to provide information to the Court. In late July, the DNI informed Congress that the decision . . . had led to degraded capabilities in the face of a heightened terrorist threat environment. FISA reform efforts quickly shifted to addressing this gap. Congress responded this past August by passing the bipartisan Protect America Act, a law which cleared the Senate 60 to 28. Although an imperfect statute, it granted the DNI the tools necessary to protect our homeland at a time when there were well-documented gaps in our intelligence gathering. Congress wisely employed a 6-month sunset to ensure that the shortcomings of this temporary law could be explored at length and properly corrected. The bill before the Senate today is a product of that 4-month deliberation, and given all that I have just outlined, clearly the time has now come to take precise and concrete action. The Intelligence Committee has been guided by its vast expertise in overseeing American intelligence operations, and this proposal sorts out the confusion of the past several years and replaces legal gray areas with clear bright line rules. Central to this revision is the role of the FISA Court--a critical step in this process, as the courts must play a prominent role whenever fourth amendment concerns are at stake. The bill rightly maintains the rule that no court order is required when targeting communications abroad, and clarifies that this remains the case even if, for example, a foreign-to-foreign e-mail transits a server located on U.S. soil. However, the bill would, going forward, allow for so-called ``umbrella surveillance'' only under the following conditions: First, it may be conducted for 1 year. Secondly, the DNI and the Attorney General must certify that such operations would target only those individuals reasonably believed to be outside of the United States. Third, the FISA Court must receive and approve the minimization procedures to ensure that any ``inadvertent collection'' is promptly destroyed. More importantly, where the target is located within the United States, or where the target is a U.S. citizen or a permanent resident anywhere in the world, the bill now requires that a warrant first be obtained from the FISA Court. The FISA Court--only the FISA Court--will have the authority to determine that there is probable cause to believe that the U.S. person in question is an agent of a foreign power. Only then may a warrant be issued, and only then may targeted surveillance commence. This is a strong and substantial improvement over the provisions of the Protect America Act. It is noteworthy that this bill, if passed, would recognize for the first time ever the right of a U.S. citizen or permanent resident to be free from warrantless surveillance by the U.S. Government even when such person is abroad. As our colleague Senator Wyden said in the Washington Post on December 10, this is a change that was contemplated back in 1978 but which never received the attention necessary from Congress to become law. Finally, the bill authorizes the inspectors general of the Department of [[Page S422]] Justice and elements of the intelligence community to conduct independent reviews of agency compliance with the court-approved acquisition and minimization procedures--adding another independent check to ensure that the agencies charged with implementing the program are in fact complying with the court order and minimizing any information that was inadvertently collected. This is not to say that the Judiciary Committee substitute was not superior in some regards. For example, it contained far stronger language asserting that the FISA Court and the Federal Criminal Code are the exclusive means by which the U.S. Government may conduct surveillance, counteracting allegations by the administration that the 2002 authorization of the use of military force against Iraq provided an alternate statutory authority. To be clear, the Intelligence Committee bill does state that such a restriction applies to ``electronic surveillance.'' In fact, I felt strongly about this provision, and that is why I joined other colleagues on the Intelligence Committee in submitting additional comments regarding this provision--specifically that FISA is the exclusive means by which the U.S. Government may conduct surveillance. Yet the Judiciary Committee bill took this one step further, expanding exclusivity to cover any ``communications or communications information,'' a broader term meant to reach even those communications not covered under the more narrowly defined category of ``electronic surveillance.'' Yet, on balance, the Intelligence Committee legislation reflects the committee's expertise in this field, and it presents a bipartisan approach for restoring order to the state of the law surrounding Government surveillance. As the Intelligence Committee report noted, the committee held seven hearings in 2007 on these issues, received numerous classified briefings, propounded and received answers to numerous written questions, and conducted extensive interviews with several attorneys in the executive branch who were involved in the review of the President's program. In addition, the committee received formal testimony from the companies alleged to have participated in the program and reviewed correspondence that was provided to private sector entities concerning the President's program. The committee secured IG reports and the orders and opinions issued by the FISA Court following the shift of activity to the judicial supervision of the FISA Court and invited comments from experts on national security law and civil liberties. The committee also examined extensive testimony given before other committees in the last several years and visited the NSA, carefully scrutinizing the program's implementation. The underlying committee bill vests significant authority--and rightfully so--in the FISA Court to authorize targeting of U.S. persons and to sign off on minimization procedures of any nontargeting surveillance. It further modernizes FISA so that its terms apply rationally to today's technology, and streamlines procedures to ensure that the men and women in our intelligence community can maximize their focus on detecting threats to our homeland. It does all of this while employing the Intelligence Committee's technical expertise to avoid any unintended consequences. I wish to focus the remainder of my remarks on what has become the flashpoint of controversy--whether to grant retroactive immunity to the numerous telecommunications companies who have been sued for allegedly providing private customer information to the Government in violation of the law. I believe that this narrow, limited grant of immunity is a proper course of action for these reasons: First, it is critical to note and understand that a grant of immunity to telecom providers for assisting the Government is not a novel concept, but rather a longstanding component of existing law. Specifically, the Federal Criminal Code already states that ``no cause of action shall lie in any court against any provider . . . for providing information, facilities, or assistance'' to the Federal Government in conducting electronic surveillance if the company is presented with either a court order or a certification signed by the Attorney General stating that ``no warrant or court order is required by law, that all statutory requirements have been met, and that the specific assistance is required.'' Why, then, must the bill before us contain an immunity provision for communications firms? The answer is that they are unable to invoke it because the very existence of whether a particular company--or any company--did or did not participate in any alleged surveillance has been designated as a state secret by the U.S. Government. This places the telecom companies in a Catch-22 scenario: if, hypothetically, a company did assist the Government, it cannot reveal that fact under the State Secrets Doctrine, and thus cannot claim the benefit of immunity; conversely, if a company did not provide any alleged assistance, it still cannot demonstrate that fact to conclusively dismiss the lawsuit, again because of the mandates of the State Secrets Doctrine. In the 40- plus active lawsuits, defendant telecom companies are in a ``no-win situation.'' To those who may ask why Congress should concern itself with addressing these pending lawsuits, I would answer that the credibility and effectiveness of America's intelligence community depends upon it. Particularly in the wake of the devastating attacks of September 11, 2001, any American company that, when reportedly presented with proper certification, assisted the Government in a matter of national security was doing so, in all likelihood, in the best interests of our Nation. And punishing such cooperation through subsequent lawsuits could have drastic future consequences. This position has been asserted by former Attorney General John Ashcroft and former Deputy Attorney General James Comey, both of whom had well-documented misgivings about the administration's approach to surveillance. This view is also held by the distinguished chairman of the Intelligence Committee, who on October 31 of this year wrote in the Washington Post that the telecom lawsuits are ``unfair and unwise. As the operational details of the program remain highly classified, the companies are prevented from defending themselves in court. And if we require them to face a mountain of lawsuits, we risk losing their support in the future''--a development that Chairman Rockefeller assessed would be ``devastating to the intelligence community, the Justice Department and military officials who are hunting down our enemies.'' The immunity provision in this bill is narrow and limited. First, it is only retroactive. It clearly delineates what types of surveillance require a search warrant from the FISA Court and what types do not. The very fact that the FISA Court will be involved contrasts starkly with the ``gray area'' under which the Terrorist Surveillance Program had operated prior to January of this year. This clarity will thus also make it clear as to whether a telecom company is complying with a lawful request and thus whether it will be entitled to statutory immunity. As the Intelligence Committee report underscored, the action the committee proposes should be understood by the executive branch and provided as a one-time response to an unparalleled national experience in the midst of which representations were made that assistance to the Government was authorized and lawful. In doing so, the underlying legislation acts prospectively to guard against any future infringements of constitutional liberties that might occur. By contrast, striking title II will accomplish nothing constructive in the future. To the contrary, as I indicated, it may be counterproductive by discouraging future cooperation by private entities. Second, the bill only grants immunity for civil lawsuits. It would not provide amnesty to anyone--the telecommunications companies, Government officials or any other party--who engaged in any potential criminal wrongdoing. Should any criminal allegations arise against telecommunications officers, Government officials or others, such investigations would not be prevented by this provision. Nothing in this bill is intended to affect any of the pending suits against the Government or individual Government officials. Third, this provision does not make any determination as to whether the [[Page S423]] program in question was legal. It only grants the telecommunications carriers immunity if the Attorney General certifies those carriers cooperated with intelligence activities designed to detect or prevent a terrorist attack and that such a request was made in writing and with the assertion that the program was authorized by the President and determined to be lawful. Finally, this bill provides the fairest course of action for addressing corporations that, when presented with an urgent official request at a critical period for our Nation's security, acted in a patriotic manner and provided assistance in defending this Nation. These companies were assured that their cooperation was not only legal but necessary and essential because of their unique technical capabilities. Also note that the President initially authorized the NSA program in the early days and weeks after the September 11 attacks, attacks that shocked our Nation and forced us to quickly react and adjust to the new reality of the 21st century, where terrorism was occurring in our own backyard. If a telecommunications company was approached by Government officials asking for assistance in warding off another terrorist attack and those Government officials produced a document stating the President had authorized that specific activity and that activity was regarded as legal, could we say the company acted unreasonably in complying with this request? In the interest of protecting our Nation in this new environment of the 21st century and bringing stability and certainty to the men and women who are in our intelligence community as they carry out their very vital and critical missions in defending and preserving our freedoms at home, I urge passage of FISA reform that is bipartisan, that respects an active balance among all branches of Government, that will establish a key role for the courts going forward in evaluating surveillance measures in the United States and against U.S. persons abroad and that we will allow the intelligence community to devote its full efforts to fighting and winning the war on terror. I yield the floor. The PRESIDING OFFICER (Mr. Pryor). The Senator from Oklahoma. ____________________ [Congressional Record: January 29, 2008 (Senate)] [Page S430-S432] FISA Mr. CHAMBLISS. Mr. President, I come to the floor this afternoon to talk for a minute about the pending FISA legislation. As a member of the Senate Intelligence Committee, I have been very pleased to be a part of the bipartisan process in which Chairman Rockefeller and Vice Chairman Bond have crafted a very delicate, a very sensitive, yet important piece of legislation. Probably the most important piece of legislation that the Intelligence Committee has dealt with over the last several months or even years. Certainly, it is one of the most important pieces of legislation to come to the floor of this body this year. This FISA legislation gives tools to our intelligence community which allow our brave men and women--who stand at the forefront today of the war on terrorism in every part of the world--to gather information from those who are plotting, planning, and scheming to kill and harm Americans. The tools with which the intelligence community seeks to get in this particular instance deal with their ability to gather information, primarily through what we refer to as electronic surveillance, from terrorists, or bad guys, who are overseas communicating to other individuals who are also overseas. There is no question that in order for our intelligence or law enforcement officials to be able to gather information from communications of persons located within the United States, it is necessary that they first obtain a court order. Let's make that very clear. We must first obtain a court order to conduct surveillance against individuals located within the United States. What we are seeking to do in this legislation is to give our intelligence community the ability to collect information without a court order from people who are planning attacks against the United States and located outside the United States. It is those individuals whom we seek to gather information from and prohibit from having the capability to kill and harm Americans. This legislation is a crucial piece in the puzzle to enable the intelligence community to gather information from these individuals. This particular piece of legislation has been debated in the Intelligence Committee for 10 months and was voted out of the Intelligence Committee on a very bipartisan vote of 13 to 2. I actually voted against several of the amendments offered in the Intelligence Committee. But at the end of the day, even though some of the amendments I voted against were accepted and were included in the bill, I believed it was such an important piece of legislation and put such necessary power and authority into the hands of the intelligence community that I voted to support it. I commend my vice chairman, Senator Bond, who is on the floor with me now, for his leadership. I would simply ask the vice chairman: We started debate on this bill on the Senate floor in December, have been debating this bill this week, as well as last week. Where are we? What is the holdup in passing this critical legislation? What is the problem? Why can't the Senate give our intelligence community the tools they need to protect Americans? The PRESIDING OFFICER. The Senator from Missouri is recognized. Mr. BOND. Mr. President, if I may respond to my colleague from Georgia, who is a very valuable member of the Intelligence Committee and who brings expertise from the other body and who has been a valuable contributor, when we passed the FISA bill in what is called the Protect America Act in August, everybody agreed that it should be 60 votes because this is a very important but very controversial bill that has to be adopted by 60 votes. Thus, we have asked that amendments to this bill be considered under a 60-vote rule. It is very common in this Senate to demand 60 votes to be sure it is a nonpartisan bill. So far, we have not been able--although we have provided several alternatives to our friends on the other side--to get a clear way of going forward. So that is why we are stuck, waiting to find a reasonable manner of proceeding. I would ask my colleague if, in fact, he feels we had adequate contact with, interaction, and advice from the intelligence community and whether it is important to have the advice and assistance of those who are experts in and know the operations of electronic surveillance, to have a role in our drafting of the legislation. [[Page S431]] Mr. CHAMBLISS. Mr. President, I would respond to the vice chairman, the Senator from Missouri, that without question, under his leadership and the leadership of Senator Rockefeller, the chairman, we have received important input and had dialogue with the intelligence community throughout the drafting stages of this legislation. We not only had the top leadership, including the DNI, the Director of the NSA, the head of the CIA, and folks from the FBI in to testify before the Intelligence Committee, but also every member of the Senate Intelligence Committee has had the opportunity to visit these agencies and see firsthand where and how this information is gathered. We have had the opportunity to see firsthand the methods our intelligence community uses and the professionalism they exhibit. All of this is very highly classified. Our committee deals with all of this information in a very sensitive and classified manner. But the fact is, we have had testimony and firsthand accounts from top to bottom--from the individuals who physically gather the information all the way to the top leadership. Members of the committee on both sides of the aisle have asked tough questions to the individuals who have presented testimony before the committee. Everybody had the opportunity to have a free and open dialog and debate with those individuals. Again, based upon what our intelligence experts had to say, this legislation was crafted and debated within the committee. Without question, there was ample opportunity for every member to inquire of all of those in the intelligence community of why we need this legislation, why it is so critically important, where we would be without it, and why we need it to make sure we are able to stop those individuals who seek to do harm to Americans around the world. Mr. BOND. Mr. President, I would ask the Senator from Georgia further why it is so important to have the intelligence community operatives and lawyers involved in drafting the measure. We had several good ideas offered in the committee that turned out not to be workable. I would ask my colleague why he thinks it is important to have the direct involvement by the intelligence community experts as to how to craft not only the legislation but amendments to it. Mr. CHAMBLISS. Mr. President, I would respond to the distinguished Senator from Missouri that without question, it is necessary, from a legal standpoint and from a practical standpoint, to get testimony and advice from the legal experts and our operators in the intelligence community to make sure there are no unintended consequences that come out of the final product from the Intelligence Committee. As the Senator will recall, we had some very heated debates on a couple of amendments within the committee. Very good debate on both sides of the issues. Sometimes, there were Democrats arguing with Democrats, other times Republicans were arguing with Republicans, but that is the nature of the Intelligence Committee. It operates in a bipartisan fashion to make sure we look at every aspect--legal, technical, as well as practical--to make sure we get it right. As the vice chairman knows and has been working to correct, some of the amendments adopted in committee were well intentioned but harmful to our collectors. With the input of the intelligence community the manager's amendment has been able to correct those unintended consequences while preserving the intent of the amendments. In this instance, I think we did get it right through engaging with our intelligence experts. Mr. BOND. Mr. President, would the Senator from Georgia say that this bill not only enables the intelligence community to move forward, but it provides additional protections for Americans, for their privacy and constitutional rights? I would ask him if he thinks those amendments have been incorporated in the legislation before us and what he thinks the final product of the Intelligence Committee is as a result. Mr. CHAMBLISS. Mr. President, I thank the Senator for his question. I would simply say that, again, there is just no doubt this legislation goes beyond the Protect America Act and the current FISA statute to protect American's privacy and constitutional rights. After all the discussion, after all the testimony that was presented, after all the debate that took place within the confines of the Senate Intelligence Committee, we found that for 25 years, the members of the intelligence community have been able to conduct surveillance against Americans overseas without a court order. I would point out that they did this in a professional manner and reduced the risk of compromising American's privacy through established minimization procedures. Since FISA's original enactment, the intelligence community has used minimization procedures to ensure that the information being gathered from Americans was necessary foreign intelligence information and from individuals who are foreign agents. This legislation subjects this type of surveillance to a court order, providing new protections for Americans. One purpose of FISA reform was to ensure that the ultimate and final language we came up with would provide additional privacy protections to American citizens, both inside the United States as well as outside the United States. Mr. BOND. Mr. President, I would ask, isn't this the first time any of the FISA bills--even the predecessor FISA bill or the Protect America Act--have included privacy protections for Americans overseas? Mr. CHAMBLISS. Mr. President, I would respond to the distinguished Senator from Missouri that this is the first time these protections have been enacted. This bill also prohibits reverse targeting. This is the first time in the history of our intelligence community that a FISA court order for U.S. persons is required regardless of where that individual is located. So if a U.S. citizen who goes abroad is an agent of a foreign power or a terrorist seeking to communicate, our intelligence community must first get a court order before they can conduct any electronic surveillance, irrespective of whether that person is inside the United States or outside. For the first time in the history of our intelligence operations, this will be the case. So the added protections of the fourth amendment, which normally are not needed for a person located outside the United States, are applied in this particular piece of legislation. Mr. BOND. Mr. President, my colleague mentioned reverse targeting. I would ask him, after debate on both sides and suggestions from both sides, did we not also include an express prohibition of reverse targeting, as well as providing court review, as he has stated, of minimization, acquisition, and certification procedures? I would ask him if reverse targeting is prohibited and what reverse targeting really means. Mr. CHAMBLISS. Again, I thank the vice chairman for his question. The issue of reverse targeting is directly addressed in the bill--it is prohibited explicitly. Reverse targeting refers to the hypothetical situation where our intelligence community targets a foreigner overseas solely to get a U.S. persons' communications between that foreign person and a U.S. person. The targeting of the foreign person is allowed without a court order. The targeting of a person located in the U.S. is not allowed unless a court order is first obtained. So if someone in the intelligence community targeted a foreigner with the intent to listen in on the U.S. citizen, that is reverse targeting. This is prohibited in this legislation. Again, this is the first time we have seen that protection put in the statute. So as a lawyer still recovering from practicing law sometimes, I think, it is the first time that I can remember in all of my years since my days of constitutional law at law school where the United States applies fourth amendment rights to individuals who are outside of the United States. Mr. BOND. Mr. President, I would ask my colleague--he just talked about the new protections for U.S. persons overseas: prohibition of reverse targeting, court review of acquisition, minimization, and certification procedures. Now, some have said we just ought to extend the Protect America Act. As a sponsor of the Protect America Act, I thought it was pretty good. But if we were simply to extend the Protect America Act, would that not [[Page S432]] eliminate or at least delay any of the additional protections against reverse targeting, providing court review, and preventing reverse targeting of U.S. persons? Mr. CHAMBLISS. Again, Mr. President, I respond to the vice chairman that reverse targeting is not prohibited under the Protect America Act. It is a procedure that some allege could occur under the Protect America Act, but which is clearly prohibited under this act. Anybody who is concerned about extending and protecting the rights of individuals ought to be a lot more concerned about getting this bill enacted into law than they should be about extending the Protect America Act. So this is one of those situations where it is totally unexplainable to me for someone to say: I don't think we ought to pass this law because it doesn't go far enough, when it goes further than current law and the Protect America Act which we already have voted for. Now there is an attempt being made to extend the Protect America Act for an additional period of time. Mr. BOND. Mr. President, I ask my colleague why it has taken so long to get us to this point when the Protect America Act expires on February 1? Mr. CHAMBLISS. As the Senator has said on the floor over the last several days, we are ready to pass this bill tonight if our friends on the other side of the aisle will simply get together with us and let us vote it up or down. When it comes to the issue of 60 votes, I have only been in this body for 5 years, but I cannot think of one single major piece of legislation that I have seen on the floor of the Senate during those 5 years that didn't require 60 votes for all major amendments. I was the manager of the farm bill recently. That is a long way away from this sophisticated piece of legislation, but every major amendment we had required 60 votes. That was the most recent, large piece of legislation we have had on the floor. So every time we have a major bill, a 60-vote requirement is reasonable and is going to be called for. I think for us not to have it in this particular situation would be extremely unusual. Mr. BOND. Mr. President, I might ask, isn't there a danger that if there is an amendment not subject to the 60-vote point of order, it is possible, with various Senators absent, that we could adopt, perhaps, on a 47-to-46 vote, an amendment that would make it impossible for the intelligence collection required by the intelligence community to go forward, and if such were adopted, what would happen to the legislation? Mr. CHAMBLISS. Mr. President, if I may respond, the Senator is exactly right. If we did not have a 60-vote requirement on amendments, or dealing with any issue in this bill, then it is possible that we could adopt amendments, by less than a majority of the Members of the Senate, which could hamper our intelligence community. And on this critical, sensitive, most important piece of legislation, for us to pass an amendment without a 60-vote requirement really makes no sense at all. I think all of us would certainly be remiss and derelict in our duties if we didn't insist on a 60-vote requirement. Mr. DURBIN. Will the Senator yield for a question? Mr. BOND. Of course. Mr. DURBIN. Mr. President, is the Senator proposing to change the Senate rules that all amendments will now take 60 votes? Is that the proposal before the Senate? Mr. BOND. Mr. President, if I may respond, as my friend from Georgia pointed out, in order to pass very important legislation such as this, it has been the practice in this body to require 60 votes, and as my colleague from Georgia just said, the farm bill passed with 60 votes on the amendments. When we passed the Protect America Act, we had to get 60 votes. This bill could be enacted into law and will undoubtedly have to have 60 votes to be signed by the President. I say to my distinguished colleague from Illinois, if there are changes made with less than a 60- vote margin, if they destroy the ability of the intelligence community to operate the collection system as we have prescribed, then that bill will never be signed into law. We would have to start all over again, and we would thus be leaving our intelligence community without the tools to protect us. We are not saying we are changing the rules of procedure. We are following the practice that has been adopted in this Senate. Mr. DURBIN. If the Senator will further yield, I am new here; I have only been here 11 years. So I am trying to learn a little about how this works. I recall that somehow the Republic survived and the Nation did well, we kept our armies in the field and built our highways and passed our bills, and we did that for a long period of time without requiring 60 votes on every amendment. Then there came this age of the filibuster, where the Republican minority last year had 62 filibusters, breaking a record in the Senate. Well, to stop the filibuster, you need 60 votes. So now I assume what the Senator is suggesting is that we are in a new age in the Senate, and it is going to take 60 votes for everything. If that is the proposal, I suggest a rules change. Let's get on with it and find out if there are enough votes here to make that the rule. If it is going to be the age of filibusters again this year, the public won't like it much. We were in the minority not that long ago. But if that is your goal, if you want to make this a 60-vote requirement, it is a different Senate, and it will be, unfortunately, adding to the frustration many people have when they look at Washington and say: Why don't you pass something, or why don't you do something about health care or about other issues? We will have to tell them we don't have 60 votes. Mr. BOND. Mr. President, if that was a question--and I assume it was a question--let me say that requiring 60 votes is something which has occurred frequently in previous years, when this side had the majority and the other side was in the minority. We found that it was very difficult to pass legislation without 60 votes. Thus, we have seen that practice before. But this is not an ordinary piece of legislation. Had we dealt with this in a timely fashion, this could have been handled on a different basis. But the Director of National Intelligence, whom I will refer to as the DNI, submitted to the Intelligence Committee, in April, a measure that he felt was necessary to modernize FISA. That bill was not brought up. The DNI testified in person before the committee in open hearing in May. Despite my request, no legislation was developed in the committee. The DNI came before the Senate in closed session, in a confidential room, in July of this year, to say how important it was. No bill came out of the Intelligence Committee. So the DNI proposed a short-term fix, which I brought to the floor on his behalf at the end of July, the first of August, and we were able to pass the bill, but we had to pass on a 60-vote basis. When there are very important pieces of legislation, with strong feelings on both sides--as my colleague from Georgia has pointed out, he handled a very important and difficult farm bill--those measures had to have 60 votes. Now, the fact is, we could have a bunch of simple majority votes, and there are many we can take on a simple majority. But if there are amendments which, if adopted, would prevent the bill from being passed and signed into law, as a practical matter, it makes sense to have a 60-vote margin. We are waiting for a response to the offers we have made to the other side because, frankly, February 1 is coming. I hope we will agree on it. I understand the House is sending us a 15-day extension. I say to my friend from Illinois that I hope we can adopt the 15-day extension and a collaborative agreement between the two sides on how we are going to proceed to finish this bill. I see the distinguished assistant majority leader has some information. I am happy to yield to him for that. ____________________ [Congressional Record: January 29, 2008 (Senate)] [Page S433-S434] FISA Mr. BOND. Mr. President, I thank my colleague from Georgia. I thought maybe, if anybody is still listening, we would talk a little bit about the intent of the Foreign Intelligence Surveillance Act. I hope maybe we can clarify some of the misunderstandings. First, I believe that when the distinguished Senator from California, a valued member of the committee, Mrs. Feinstein, spoke on the origins of FISA, she correctly noted that it was created, at least in part, in response to the disclosed abuses of domestic national security surveillance. However, as the legislative history makes clear, FISA was never intended to regulate the acquisition of the contents of international or foreign communications where the contents are acquired by intentionally targeting a particular known U.S. person who is in the United States. The legislative history states: This bill does not afford protections to U.S. persons who are abroad, nor does it regulate the acquisition of the contents of international communications of U.S. persons who are in the United States, where the contents are acquired unintentionally. The Committee does not believe this bill is the appropriate vehicle for addressing this area. The standards and procedures for overseas surveillance may have to be different than those provided in this bill for electronic surveillance within the United States, or targeted against U.S. persons who are in the United States. In essence, then, FISA, as originally drafted, was a domestic foreign intelligence surveillance act. Congress was concerned about targeting persons inside the United States with interceptions conducted inside the United States. The FISA Act amendments legislation we are considering today is a very different animal, and it could be better characterized as an international foreign intelligence surveillance act. The bill is concerned mainly with targeting persons outside the United States when interception might occur inside the United States. What do I mean by that? The legislation will regulate how the President may conduct electronic surveillance of foreign terrorists operating in foreign countries when their communications just happen to pass through the United States on wire communications networks. This strange interference with the intelligence community's and, indeed, the President's authority to conduct foreign intelligence activities appears to arise from an overabundant concern about the ``rights'' of persons in the United States whose communications are incidentally collected when they talk to terrorists overseas. It is odd that we are creating a new law in this area that departs from the original construct of FISA because in the international surveillance realm, there have been no significant abuses of the intelligence community's ability to collect overseas foreign intelligence. Unfortunately, two factors have compelled us to make these changes to FISA. First, we need to ensure that the critical intelligence gaps identified by the DNI last year do not reappear. The Protect America Act effectively closed those gaps last summer, but there was bipartisan agreement that we could improve on its provisions, especially in the area of carrier liability protection, and that is what our committee did. Second, this legislation is also required because we must address the practical reality that electronic communications service providers are now insisting on a formal process to compel cooperation in the foreign arena in order to obtain prospective liability protection similar to that enjoyed for domestic intelligence and criminal wiretaps. That is why the carrier liability protection and prospective liability protection provisions of this bill are so important. Another area where we are departing from the original intent of FISA is the targeting of U.S. persons abroad. FISA, as passed in 1978, left the targeting of American citizens abroad to the President's Executive order applicable to the intelligence community and the procedures approved by the Attorney General. In this legislation for the first time in history, we build into the FISA new laws that govern the targeting of U.S. persons overseas who are agents, officers or employees of foreign powers when a significant purpose of the acquisition is to obtain foreign intelligence information. These new procedures are sometimes referred to as 2.5 procedures because they are based in part upon section 2.5 of Executive Order 12333, which has long governed the electronic surveillance of U.S. persons overseas by requiring the approval of the Attorney General based upon a finding of probable cause that the target is a foreign power or agent of a foreign power. These 2.5 changes were part of the overall bipartisan compromise and now require prior court review by the Foreign Intelligence Surveillance Court of all surveillance conducted by the U.S. Government targeting U.S. persons overseas. Americans will still be on their own with respect to being surveilled by foreign governments overseas, but at least they can remain confident that if they are not working for a foreign power as a spy or terrorist, their own Government will not be listening to their conversations. The last area that merits discussion on the issue of FISA's original intent is the Foreign Intelligence Surveillance Court. We refer to it as the FISC. According to section 103 of FISA, the FISC was established as a special court with nationwide jurisdiction to ``hear applications for and grant orders approving electronic surveillance anywhere within the United States.'' That is it. As evidenced by the application and order requirements in FISA, each application is for a ``specific target'' for the significant purpose of obtaining foreign intelligence information. The court was originally structured so its seven judges would provide geographical diversity. The post-9/11 expansion of the FISC from 7 to 11 judges enhanced that diversity. Judges are nominated by the chief judge of their circuit to promote ideological balance on the FISC. It was clearly recognized that only one or two judges would be in Washington, DC, on a rotating basis at any given time. This was intended to discourage judge shopping and make it unlikely that an application for the extension of an order would be heard by the same judge who granted the original order. The FISC was never envisioned as a court that would or should handle protracted litigation. It possesses neither the staff nor the facilities to preside over such litigation. Moreover, it is very likely that such prolonged litigation would interfere with the main business of the FISC, which is to ensure the timely review and approval of individual operational FISA applications for court orders. We need to remember that the FISC was set up to review domestic electronic surveillance and later physical searches, an area that has numerous parallels to the similar reviews conducted by district court judges when they are asked to authorize criminal wiretaps. As I mentioned previously, even the FISC has acknowledged its lack of expertise in the foreign-targeting context, which is, they say, better left to the executive branch. The Court's recent opinion in the case of In re: Motion for Release of Court Records stated: . . . even if a typical FISA judge had more expertise in national security matters than a typical district court judge, that expertise would still not equal that of the Executive Branch, which is constitutionally entrusted with protecting the national security. We should be very hesitant to disregard the Court's own assessment of its competency in the overseas intelligence realm, especially given the original intent of FISA. I urge all my colleagues to be mindful of the Court's own words as we consider some of the [[Page S434]] proposed amendments, particularly those that would allow the court to assess compliance with minimization procedures used to target foreign terrorists. For example, amendment Nos. 3920 and 3908, and would require the court to determine the good faith of those providers who allegedly assisted the Government with the Terrorist Surveillance Program. As examples, amendment Nos. 3919 and 3858. In conclusion, I offer these observations mainly to ensure the record reflect the legislation departs from FISA's original intent in a deliberate and carefully tailored manner. While there are some practical considerations, including a desire for a strong bipartisan bill, that have driven the need for this legislation, we should be extremely careful about adding new or changing existing provisions in the bill that could negatively impact the operational effectiveness of our intelligence community or provide unwarranted protection to overseas terrorists and spies. Mr. President, I will not propound a unanimous consent request now, but I advise my colleagues that if we cannot reach agreement, I will ask unanimous consent that all amendments to the FISA bill be brought up and decided at a 60-vote threshold so we can move forward on this important legislation. I am not making that request now. I alert my colleagues on the other side of the aisle, I hope that will not be necessary, but we have not had a response to our proposal on how we move forward. We have been at this a week now, and we only have, at best, two full working weeks before we go on recess. We must get this bill done, sent to the House, conferenced, and passed before we leave for the President's Day recess. Failure to do so could leave our intelligence community without the tools they need and, thus, America without the protection it needs. I yield the floor. The PRESIDING OFFICER (Mr. Menendez). The Senator from Colorado. ____________________ [Congressional Record: January 29, 2008 (Senate)] [Page S439-S440] FISA Mr. COBURN. Mr. President, at the end of this week, Americans may find themselves at greater risk of a terrorist attack when the Protect America Act expires on February 1. On that date, we will be forced to revert to the antiquated 1978 Foreign Intelligence Surveillance Act, or FISA, to monitor the communications of suspected terrorists, unless this Congress moves quickly to make permanent changes to that law. It is therefore critical for Congress to enact permanent modernizations to FISA so that our intelligence officials will have every tool they need to monitor the communications of terrorists who seek to destroy the United States. The consequences of allowing the Protect America Act to lapse could be deadly. The PAA was passed last August to modernize FISA so that the statute could do in practice what it was always intended to do--govern certain foreign intelligence surveillance activities directed at persons in the United States, without inadvertently burdening those activities directed at persons overseas. FISA, however, has not kept up with technological advances that have been made since 1978. As a result, prior to the PAA, intelligence officers were often forced to obtain a court order before beginning surveillance against a terrorist or other foreign target located in another country. This unnecessary and burdensome requirement caused U.S. intelligence agencies to lose about two-thirds of their ability to collect communications intelligence against al-Qaida. Thankfully, the Protect America Act helped to close the inexcusable gap that left this country blind to the plans our enemies were making against us. As Director of National Intelligence Michael McConnell said, the PAA has ``allowed us to obtain significant insight into terrorist planning.'' To allow such a vital antiterror tool to lapse at this time would be the ultimate dereliction of duty. The United States must remain vigilant against a terror threat that is real and constant. The National Intelligence Estimate on ``The Terrorist Threat to the US Homeland,'' released just 6 months ago, concluded that this country will face a ``persistent and evolving'' terrorist threat over the next 3 years, particularly from Islamic terrorist groups and cells like al-Qaida. No person in America is unfamiliar with the capabilities and determination of such terrorist groups, and Americans trust us to make the right decisions to protect them and their children. Without making permanent changes to FISA to ensure the fast and effective intercept of foreign intelligence information, little else we do will matter. Retroactive immunity is in the best interest of this Nation's security and must be included in FISA modernization, as it was in the Intelligence Committee bill. Following the attacks of September 11, 2001, President Bush authorized the National Security Agency to intercept international communications into and out of the United States of persons linked to al-Qaida or related terrorist organizations. The administration's obvious and stated purpose of this authorization was to ``establish an early warning system to detect and prevent another catastrophic terrorist attack on the United States.'' Therefore, the administration made requests for telecom companies to cooperate with its intelligence activities. The companies complied with the government's request for help, relying on written assurance from the executive branch that their actions were both necessary and legal. Now these companies face multibillion dollar lawsuits challenging their actions. Such lawsuits not only create potentially staggering liability for the companies, they also create the risk that sensitive details about our intelligence sources and methods will be revealed through discovery. Moreover, failing to protect those who cooperate with the Government to thwart terrorist activity will undermine the willingness of others to cooperate in the future. A powerful op-ed authored last October by former Attorneys General Benjamin Civiletti, Dick Thornburgh, and William Webster, said it best: 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. Recognizing the gravity of the situation, the bipartisan Senate Intelligence Committee voted 13 to 2 to include retroactive immunity in its bill. This overwhelming vote came after the committee reviewed the classified documents on which these companies relied. The committee ultimately concluded that the Government ``cannot obtain the intelligence it needs without assistance from [telecommunications] companies.'' Protecting the corporate good citizens who answered the call to assist our intelligence community during a time of great danger to this country is the right thing to do. Anything short of full immunity for those companies that, at the Government's request, on the written assurance that such action had been authorized by the President and deemed lawful, would undermine the security of the United States is simply unacceptable. The carefully crafted, bipartisan Senate Intelligence Committee bill protects privacy interests without undermining our intelligence community's ability to do its vitally important job. The bill was approved by a vote of 13 to 2 after careful consideration of complicated issues and classified documents. It will allow our intelligence professionals to continue collecting foreign intelligence against foreign targets located outside the United States without requiring prior court approval. This is consistent with the intent of the legislators who enacted FISA in 1978 and represents no change in the way that the NSA has always conducted foreign surveillance. In so doing, the bill will also continue to protect the civil liberties of Americans in this country, surveillance of whom has always required prior court approval. Nothing we are considering in the Senate today would alter that. In the event that communication from a U.S. person is inadvertently intercepted, the intelligence community uses ``minimization procedures'' to suppress the data. The result is that the communication is never used or shared. These procedures have been used effectively for 30 years and will remain in place after permanent FISA changes are enacted. Enacting permanent modernizations to FISA is one of the most important duties the Senate will undertake this year. We have known for 6 months that the Protect America Act would expire on February 1 and have no excuse for not getting this done correctly before that date. The stakes in this debate could not be higher. Although the details can be complicated, the basic issue is pretty simple. As Andy McCarthy said in a recent piece for the National Review Online, ``Osama bin Laden doesn't need to apply to a sharia court before blowing up an American embassy; the president shouldn't need to apply to a federal court to try to stop him.'' Unfortunately, I was unable to make it back to town in time for the two cloture votes that were held yesterday. [[Page S440]] Had I been here, I would have voted for cloture on Rockefeller amendment No. 3911, the Intelligence Committee's FISA bill, and against cloture on Reid amendment No. 3918, to temporarily extend the Protect America Act. I suggest the absence of a quorum. The PRESIDING OFFICER. The clerk will call the roll. The assistant legislative clerk proceeded to call the roll. Mr. REID. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded. The PRESIDING OFFICER (Mr. Whitehouse.) Without objection, it is so ordered. ____________________ [Congressional Record: January 29, 2008 (Senate)] [Page S457] EXTENSION OF THE PROTECT AMERICA ACT OF 2007 Mr. REID. Mr. President, I ask unanimous consent that the Senate proceed to the consideration of H.R. 5104, a 15-day FISA extension, received from the House earlier today; that the bill be read a third time, passed, and the motion to reconsider be laid upon the table; that any statements relating to this matter be printed in the Record. The PRESIDING OFFICER. Without objection, it is so ordered. The bill (H.R. 5104) was ordered to be read a third time, was read the third time, and passed. Mr. REID. Mr. President, I appreciate the cooperation of my colleagues, especially Senator McConnell. We are going to do our very best to have an agreement shortly so we can move to finish Senate action on this. There has been a lot of time spent on this by a lot of people--people in the Intelligence Committee, Democrats and Republicans; members of the Judiciary Committee, Democrats and Republicans. There is an effort to try to resolve this. We have had a number of good meetings today. This will allow us to do that. Our goal is to get it done quickly so we can get it to the House and complete a conference prior to the 15 days being extended. ____________________