To protect the property and security of homeowners who are subject to foreclosure proceedings.

AMERICAN HOUSING RESCUE AND FORECLOSURE PREVENTION ACT OF 2008

The ACTING PRESIDENT pro tempore. Under the previous order, the
Senate will resume consideration of the House message to accompany H.R.
3221, which the clerk will report.
The assistant clerk read as follows:

A message from the House of Representatives to accompany
H.R. 3221, an act to provide needed housing reform and for
other purposes.

Pending:

Reid (for Dodd/Shelby) amendment No. 4983, of a perfecting
nature.
Bond amendment No. 4987 (to amendment No. 4983), to enhance
mortgage loan disclosure requirements with additional
safeguards for adjustable rate mortgages with an initial
fixed rate and loans that contain prepayment penalty.
Dole amendment No. 4984 (to amendment No. 4983), to improve
the regulation of appraisal standards.
Sununu amendment No. 4999 (to amendment No. 4983), to amend
the United States Housing Act of 1937 to exempt qualified
public housing agencies from the requirement of preparing an
annual public housing agency plan.

[[Page S6098]]

Kohl amendment No. 4988 (to amendment No. 4983), to protect
the property and security of homeowners who are subject to
foreclosure proceedings.

Mr. GRASSLEY. Mr. President, I ask unanimous consent to speak as in
morning business.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered. The Senator is recognized.

Oversight

Mr. GRASSLEY. I am here today to discuss a very serious matter that
goes right to the heart of one of Congress's most important
responsibilities, the responsibility of constitutional oversight to see
that the laws are faithfully executed by the executive branch of
Government.
American taxpayers expect Congress to exercise oversight in order to
ensure that their hard-earned dollars are not wasted. To conduct more
effective oversight, Congress adopted the Inspector General Act in
1978, creating a system of inspectors general. I will probably refer to
them as everyone else does, as IGs.
We did this throughout many departments of Government. The IGs are
supposed to be watchdogs or, as I like to say, a junkyard dog. They are
our first line of defense against fraud, waste, and abuse. When it
happens, the IGs are supposed to report it to the agency head and to
Congress and to recommend appropriate corrective action.
IGs are the top cops inside of each agency in the executive branch of
Government. They police the Federal workforce. If rules are broken,
then they have to investigate allegations of misconduct and refer their
findings to proper authorities.
To be credible, IGs must be beyond reproach. Above all, they must
live by the rules they themselves enforce. They must set an example of
excellence in their personal conduct and they must always do so;
otherwise, they lack credibility. So I tend to, as a Member of the
Senate, watch the watchdogs. Over the years in doing oversight work, I
have found inspectors general who do not seem to meet these standards.
I am disappointed to have to report to the Senate today about a new IG
trouble spot.
There are allegations of misconduct in the upper echelons of the
Treasury's IG office. A tip from a whistleblower earlier this year
first alerted me to this problem. On February 12, 2008, I wrote a
letter to Acting Treasury IG Schindel asking for a copy of the
investigative report and all pertinent material bearing on the matter
that was reported to me.
I also asked Mr. Schindel to tell me how and when he intended to
address and resolve the issues raised in that report. Mr. Schindel
responded promptly, providing a redacted copy of the report on February
15. On February 29, he assured me that senior level officials involved
had been placed on paid administrative leave. They would remain on that
status, he told me, ``until all investigative matters have been
adjudicated,'' and ``one of them'' was reassigned to what appeared to
be a questionable post.
The report of investigation on this matter was prepared by the
Department of Labor IG. It is dated January 14, 2008. Since the
Treasury IG lacks an internal affairs unit, IG Schindel referred the
case to the Department of Labor IG for investigation. This was to
ensure maximum independence.
Acting IG Schindel made the referral on June 18, 2007. He was briefed
on the findings in the final report on September 26 of last year. The
Department of Labor report of investigations substantiated wrongdoing
on the part of senior Treasury IG officials. The allegations are very
serious. My staff has carefully reviewed all of the materials provided
by IG Schindel and interviewed a number of witnesses with knowledge on
the issue.
Based on the oversight investigation conducted by my staff, I wrote
to Treasury Secretary Paulson on February 28 this year. In that letter,
I expressed grave concern to Secretary Paulson about the way the Acting
IG Schindel appeared to be responding to the allegations that were
substantiated by the more independent review by the Labor Department
IG, as was reported in his writings.
This is what I said to my friend, Secretary Paulson:
Mr. Schindel stated that the report showed no corruption, criminal
activity, or serious wrongdoing on the part of the senior officials. I
am stunned that anyone with management responsibilities could make this
statement after reading the Labor IG report.
The Labor IG presented a compelling case of high-level IG misconduct
backed up with rock solid evidence. Mr. Schindel seemed unable to see
what the Labor inspector general sees. Is he turning a blind eye to an
obvious problem?
Secretary Paulson responded to my letter on March 10. He informed me
that he has been briefed on the Labor IG's report and ``communicated to
Acting IG Schindel'' his ``views'' on the matter.
The Labor IG report seems to leave little or no wiggle room. Based on
a continuous stream of information being provided to my staff, there is
growing concern about Acting IG Schindel's commitment to solving these
problems. I think of these as obvious problems.
Acting IG Schindel has known about the findings in this report for 9
months until now. To bring the issue into sharper focus, take a moment
to review the Labor IG's findings. This is what the Labor IG report
found:

Our investigation corroborated the allegation that senior
IG officials violated the Public Transit Subsidy program.

This program provides money in the form of fare cards to Government
employees to help cover the high cost of using public transportation to
get to work.
There is an added benefit to the public transit subsidy program. The
value of fare cards received in this program is not taxable. Subjects
of the Labor IG investigation signed applications to participate in the
public transit subsidy. In signing that document, they certified that
they would abide by the terms of the program. The public transit
subsidy program application forms, which these individuals sign, state:

Making a false, fictitious or fraudulent certification may
render the maker subject to criminal investigation under
title 18, United States Code, section 1001.

They allegedly took transit subsidies while accepting free rides to
work from fellow agents, sometimes in Government vehicles.
The findings of the Labor IG's report are of particular concern to me
for another reason, and this seems to be the most troubling part for
me. The senior Treasury IG officials involved in fare card abuse were
responsible for investigating and referring for criminal prosecution a
number of other Treasury Department employees who had allegedly
violated this same program called the Transit Subsidy Program.
As I said up front, the IGs must live by the rules they are sworn to
enforce. When they do not, then inspectors general lose credibility.
The Labor report also finds that the officials involved
``inappropriately intervened in closing [another] investigation'' of
alleged PTSP abuse. This one concerned an employee at another agency
who also allegedly violated the transit subsidy program. According to
the Labor IG's report, the senior Treasury IG officials ``escorted''
the agent in charge of this investigation to their office ``where they
discussed closing the case.'' They apparently ``instructed him to
cancel'' a key interview and ``told him the case would be closed.''
Since the investigation was essentially complete and there was
credible evidence to support the allegations, this meeting gave the
appearance of impropriety. The Labor IG's investigators interviewed the
Treasury IG officials about this meeting. The Treasury IG officials
reportedly cited high agent caseloads as an excuse for their attempt to
close it down. They also claimed the police at that agency ``were
capable of working the investigation'' and that ``there was no fraud or
loss.''
The Labor investigators make one point crystal clear: The claims put
forward by Treasury IG officials did not stand up to scrutiny. The
Labor IG's investigators determined that the Treasury IG's office had
worked similar cases involving this agency's employees in the past.
They found that special agents in the Treasury IG's office had a
typical caseload of 15 to 16 cases and not the usual 30 caseload
claimed by one of the subjects of this investigation.
I understand the employee involved in these allegations of public
transit subsidy program violations was given a

[[Page S6099]]

proposed notice of removal on June 18, 2008. This agency is trying hard
to crack down on such violations. This should be a wake-up call for Mr.
Schindel. The abuse of the public transit subsidy program alleged in
the Labor IG's report constitutes, at best, misuse or abuse of public
moneys and, at worst, outright theft.
There is one more very disturbing finding in the Labor IG's report I
should highlight. The Labor report ``questions the judgment'' of the
senior Treasury IG officials for their alleged involvement in the
reinvestigation of another employee misconduct case. This particular
investigation was originally conducted by the Treasury IG for Tax
Administration or TIGTA. Once again, this investigation was referred to
an outside agency to ensure greater independence.
According to the Labor report, the TIGTA investigation determined
that the Treasury IG agent ``misused his position, his issued vehicle,
and made false and misleading statements'' during the course of the
investigation. For a Federal law enforcement officer, making false
statements during an investigation, as alleged, could be a career-
ending mistake. As chronicled in the Labor IG's report, the senior
Treasury IG didn't like the TIGTA's findings and wanted them changed.
The Labor IG's report is very clear in stating that the only reason for
the reinvestigation was to change the findings of the original Treasury
IG for Tax Administration investigation. The Labor IG report concluded:

The appearance is that the sole purpose of intervening in
the aftermath of [the Treasury Inspector General for Tax
Administration's] investigation was to mitigate [the]
findings, particularly by undermining [the inspector
general's] apparently well supported finding that . . . [the
agent involved] . . . had made false statements.

The report goes on to say:

The evidence suggests that TIGTA's findings were correct.
It is clear that the only purpose of the reinvestigation . .
. was to change the findings of the investigation so [the
agent involved] would not have a Giglio issue.

The person involved in this case was suspended for 10 days 2 years
ago. The Labor IG also questioned the leniency of the agent's
punishment, noting that misuse of a Government vehicle alone normally
carries a 30-day suspension. The Treasury Inspector General for Tax
Administration also alleges that the legal counsel to the Treasury IG
may have been involved in an attempt to quash or alter TIGTA's final
report of investigation. TIGTA provided a document which indicates that
the Treasury IG's legal counsel ``disagreed with the results of the
investigation.'' He ``expected a draft ROI'' and ``asked if the Final
Report of Investigation could be changed.''
Fiddling with these kinds of reports ought to raise a lot of
questions among people in authority about whether things are being done
right.
He was informed by the agent in charge that TIGTA ``did not submit
draft ROIs and would not make any changes to the final ROI.'' The legal
counsel denies these allegations.
The Labor IG also found the legal counsel's ``advice to the DOT-OIG
questionable regarding the investigation.'' The Labor IG reached this
conclusion because the legal counsel had listened to the tape-recorded
interview, during which the subject allegedly ``made a false statement
under oath to the TIGTA agent.''
The three substantiated allegations I have laid out, which are
presented clearly in the Labor IG's report, are each disturbing in
their own right. But if you take them all together, they paint a truly
awful picture of what is going on in that office. This report is the
result of an independent investigation conducted by professional law
enforcement officers. The results of this investigation demand serious,
thorough, fair, and prompt action. I met with Acting Treasury IG
Schindel on March 13 to review this matter. He assured me he would take
decisive action to clean up this mess. More recently, I was told the
Acting Treasury IG is wrestling with new allegations. Addressing the
Department of Labor IG report must be a first priority to show us in
Congress that he is carrying out his responsibilities. He needs to sink
his teeth into that material and close it out once and for all. In a
letter on May 30, I asked the acting inspector general again to proceed
with his review of this matter ``as quickly as possible.'' I also
insisted it be done by the book, ``consistent with all applicable rules
and regulations.''
I call on Acting Treasury Inspector General Schindel to keep his
word. That is all I ask, just keep his word, do what he told me he was
going to do. I want him to stick to his repeated assurances--in his
letters of February 15 and February 29, at our March 13 meeting, and
again in a letter of June 2. I expect no more and no less.
Indecision is costing the taxpayers money. To date, these officials
have collected 3 months' worth of paid administrative leave. They are
senior executives earning top dollar. Their administrative leave has
already cost the taxpayers about $90,000, and the number is climbing.
Continuing mismanagement and indecision in the Treasury IG's office is
wasting precious taxpayer dollars. Acting IG Schindel has a
responsibility to show he runs a first-class inspector general's
office, one that is beyond reproach. He cannot operate effectively as
an IG until he gets his own house in order. His job is to deter, to
detect, and report waste but not to do it himself.
I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Nelson of Nebraska). The clerk will call
the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. ALEXANDER. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. ALEXANDER. I ask unanimous consent that I be allowed to speak for
up to 10 minutes as in morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.

Supply and Demand

Mr. ALEXANDER. Mr. President, I have received 600 e-mails and letters
from Tennesseans in response to a request I put out asking them to
share their personal stories about high gas prices. It has been my
practice each week to put a few of those into the Congressional Record
to remind my colleagues and to remind our country that we understand
that people are hurting. Tennesseans are hurting in their jobs, in
their families, and in their homes. Mr. President, $4-plus gasoline is
a big problem for Tennesseans.
Today, I wish to submit for the Congressional Record five more
letters from among the nearly 600 that I have received, and I ask
unanimous consent that following my remarks these letters be printed in
the Record.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mr. ALEXANDER. The first comes from Christy Long in Maynardville, TN.
She works at the East Tennessee Children's Hospital in Knoxville, but
she is worried about the cost of her commute. She is a diabetic. She is
having trouble paying for her insulin shots due to the rising gas
prices. She says:

Gas for work or insulin to live. That is the decision I
have had to make several times daily.

James Edwards from Charlotte, TN: James drives a rural route for the
Postal Service, and he uses his own car, but the $26-a-day allowance
doesn't cover the gas he uses anymore. He says that since the 10-
percent ethanol mandate, he gets less mileage and has to use more gas.
His wife's 40-mile commute to and from work every day is also cutting
into their budget.
Kaye Nolen in Dyer, TN: Kay used to drive across the country once a
year to see her family in Illinois, Utah, and New Mexico, but can't
afford to do that this year. She says she is afraid that she will not
be able to spend Thanksgiving with her family this year and that she
will not be able to afford gas to make it to work if the prices keep
going up.
Ruthann Booher of Crossville, TN: Ruthann and her husband have had to
make significant cuts in their driving and grocery buying because of
escalating costs. Her husband, who is 62, is now considering quitting
his job at Wal-Mart and drawing Social Security since driving to work
is so expensive. They can't afford the payment on a new car with better
mileage.
Brenda Northern in Walland, TN, which is in the same county in which
I live: Brenda is 60. She can barely afford to drive to visit her
mother, who is 79 now, and it is getting harder and harder to make all
of her payments. Her

[[Page S6100]]

husband has to use diesel for his truck because he moves mobile homes
for a living and diesel prices keep going up too.
She says: I just do not know how we are going to make it.
I want Christy and James and Kaye and Ruthann and Brenda to know that
I believe Senators on both sides of the aisle care about this matter,
understand what is happening, and are ready to deal with it. I know on
the Republican side, here is what we believe: We believe the answer to
$4 gas prices is to find more and use less; that is, find more oil and
use less oil.
Economics 101 taught us the law of supply and demand. The problem
today fundamentally--and most Americans understand this; Americans know
this--our problem is our supplies worldwide are not growing as fast as
our demand worldwide for oil, and so the price of gasoline is going up.
So if we had more supplies, and if we used less oil, the price of
gasoline would go down. So we say on the Republican side: Find more,
use less.
There seems to be a lot of agreement on both sides of the aisle about
the using less part. For example, last year, the Senate did the most
important thing it could do to reduce our dependence on foreign oil by
passing higher fuel efficiency standards that said that cars and trucks
had to be up to 35 miles a gallon by 2020. We did that together,
Republicans and Democrats.
We on the Republican side are ready to try to make plug-in electric
cars commonplace. I had a TVA Congressional Caucus hearing on that the
other day in Nashville. Major car companies such as General Motors,
Toyota, Nissan, and Ford are making plug-ins that are going to be
available next year. TVA and other utilities have plenty of extra
electricity at night to plug in, so literally you can plug your car in
at night for 60 cents and fill it up with fuel instead of $70 worth of
gasoline. I believe tens of thousands of Tennesseans and millions of
Americans are going to be doing that.
If we set as our goal and take all the steps we need to take in the
Senate to make plug-in electric cars and trucks commonplace, we could
use less. Many estimates from General Motors and others is that just
the plug-in electric vehicles would cut our imported oil by one-third,
which is now about 12 million barrels a day. That is a significant
reduction.
We can use less oil if we have a crash program in advanced biofuels.
There is a lot of concern about ethanol and its effect on food prices.
Well, we can grow a lot of crops that we don't eat such as switchgrass,
for example, and with more research on cellulosic ethanol we can use
less oil.
The other half our strategy to lower gas prices is finding more. That
is where we have a difference of opinion. It seems that the other side
of the aisle wants to repeal half the law of supply and demand. It is a
new form of economics. Maybe we could call it ``Obama-nomics'' or some
other name. But we say: All right, we agree on using less; now let's
talk about finding more. What about, for example, allowing other
States, such as Virginia, whose legislature says it wants to, to do
what Texas, Louisiana, Mississippi, and Alabama do, which is to explore
for oil offshore. We have a lot of it. We permitted an enlargement of
that in the Gulf of Mexico a couple of years ago. Already the money is
beginning to come in from the bids, and 37\1/2\ percent of the money
goes to the States for their use for education or to nourish their
beaches or whatever, and one-eighth goes to the Land and Water
Conservation Fund.
The Presiding Officer and I both were Governors of our States.
Neither one of us was fortunate enough to have an ocean on our State,
so we don't have any potential for offshore drilling. I can't speak for
the former Governor of Nebraska, but I can for Tennessee. If we had the
opportunity in Tennessee to put oil and gas rigs 50 miles offshore
where we couldn't see them and explore for oil and gas, and keep 37\1/
2\ percent of the revenue and put it in a fund for our universities to
make them among the best in the world, and to keep taxes low, and to
use the money for greenways or to nourish the beaches or for other
purposes, we would do it in a minute. I would think sooner or later
Virginia will say they would like to do that. Maybe North Carolina
will. Maybe Florida will.
Our proposal is simply, if the State wants to do it, the State can do
it. No one is saying Virginia must do it or North Carolina must do it.
It simply gives them the option, and it gives us more American oil and
more supply to help stabilize and bring down the price of $4 gasoline.
But Senator Obama and most of the Democrats on the other side of the
aisle say: No, we can't. No, we can't to offshore drilling. No, we
can't to oil shale, which is in four Western States. There is,
conservatively speaking, according to the Department of the Interior, 1
million barrels a day that we could get from offshore exploration and 2
million barrels a day that we could get from oil shale. If we added 3
million barrels a day to our production in the United States, we would
increase by one-third the production that we have in the United States.
We would be making more of our contribution to the world supply of oil.
We are the third largest producer of oil in the world. Why should we
go begging the Saudis to drill more when we can produce more ourselves.
That is part of it: Find more, use less.
So we need to come to some conclusion. We want a bipartisan result.
We know in the Senate we have to get 60 votes to make anything happen.
But I would be hopeful that the Democratic leadership, which is in
charge of the agenda, would allow us in July to bring up these matters
and act like a Senate. Let's vote. Let's debate. Let's talk about ways
to use less. We could find substantial agreement, whether it is on
plug-in vehicles, research for advanced biofuels, or conservation.
Senator Warner has suggested that the Federal Government ought to use
less as a good example for the rest of the country. That is a good
idea. Senator McCain and others have lots of good ideas as well.
Let's talk about finding more, too, for gasoline in terms of offshore
drilling or in terms of oil shale. We can leave drilling in Alaska out
of the discussion if that keeps us from having a bipartisan agreement,
although it is the fastest way to get 1 million new barrels of oil a
day. Let's put it aside for just a moment and say we want to work
across the aisle to get a bipartisan agreement. We know we can't reach
that agreement with ANWR included, so we will put that aside for the
moment. But can we not as a Senate, in a bipartisan way, agree that we
should be finding more and using less and not be saying when it comes
to offshore exploration, no, we can't, and not be saying when it comes
to oil shale: No, we can't. When Senator McCain says we need to double
our number of nuclear plants, we can't say that we have enough clean,
carbon-free electricity to deal with clean air, global warming, and
plug-in cars, but from the other side comes: No, we can't. We cannot
say ``no, we can't'' to finding more if we want to bring down $4
gasoline prices.

So I say to Christy, James, Kaye, Ruthann, Brenda, and the 600
Tennesseans who have written me about $4 gasoline, over this Fourth of
July recess, a good thing to say to your Members of the Senate and
Members of Congress is: Find more and use less. Yes, we can find more.
Yes, we can use less. Yes, we can bring down the $4 price of gasoline.
Some have said it will take 10 years. Well, President Kennedy didn't
shy away from asking us to take 10 years to go to the Moon. President
Roosevelt didn't shy away from putting in the Manhattan Project to
split the atom and build a bomb to win the war even though he knew it
would take several years. What is wrong with it taking several years?
Are we supposed to sit here and let our 2-year-old grandchildren have
the same energy crisis to deal with 10 years from now that we have
today? Leadership is about looking ahead. It might take 1, 2, 5, or 10
years, but the time to start is today. The way to do it is working
across the aisle. The formula for it is economics 101: More supply,
less demand, find more, use less. Today, the Republicans are ready to
do that. We are ready to do both, find more and use less. But the
Democrats are not.
Mr. President, I yield the floor.

Exhibit 1

1. Christy Long, Maynardville, TN--Christy works at the
East TN Children's Hospital in Knoxville but is worried about
the

[[Page S6101]]

cost of the commute. She is a diabetic and is having trouble
paying for her insulin shots due to the rising gas prices:
``Gas for work or insulin to live . . . that is the decision
that I have had to make several times daily.''
2. James Edwards, Charlotte, TN--James drives a rural route
for the Postal Service and uses his own car, but the $26-a-
day allowance doesn't cover the gas he uses anymore. He says
that since the 10% ethanol mandate, he gets less mileage and
has to use more gas. His wife's 40-mile commute to and from
work everyday is also cutting into their budget.
3. Kaye Nolen, Dyer, TN--Kaye used to drive across country
once a year to see her family in Illinois, Utah and New
Mexico, but can't afford to do that this year. She says she
is afraid that she won't get to spend Thanksgiving with her
family this year and that she won't be able to afford gas to
make it to work if prices keep going up.
4. Ruthann Booher, Crossville, TN--Ruthann and her husband
have had to make significant cuts in their driving and
grocery buying because of escalating costs. Her husband, who
is 62, is now considering quitting his job at Wal-Mart and
drawing Social Security since driving to work is so
expensive. They can't afford the payment on a new car with
better mileage.
5. Brenda Northern, Walland, TN--Brenda is 60 and can
barely afford to drive to visit her mother (who is 79)
anymore, and its getting harder and harder to make all her
payments. Her husband has to use diesel for his truck because
he moves mobile homes for a living and diesel prices keep
going up too. She says, ``I just do not know how we are going
to make it!''
____

Hi my name is Christy Long, the gas prices are very hard to
deal with. I work 40 hrs a week at East TN Childrens Hospital
in Knoxville TN and make decent money. However, between my
health insurance, daycare, school fees, groceries, my
medicine because I am a diabetic on insulin, plus my house
payment, electric, water etc . . . Then buy gas for me to get
back in forth to work on . . . Humm lets just say that I
wished I could have government benefits for the other stuff
so that I could afford my gas. My husband and I whom he works
60 hrs a week at his job have considered me quitting work and
staying home due to the fact that we can not afford the gas
for me to get back and forth to work, plus eat, my medicine,
his medicine and just to live. It is really sad when you have
to pick do I want to buy my insulin prescription for $60 this
month or do I want to buy $60 worth of gas so that I can get
back and forth to work for a week. That has happened a couple
of times in the last 6 months to my family. Luckily I have
had a good doctor that has given me samples several times to
get me thru. Because as anybody would know without my insulin
I can not live.
You see my story is not my family can not go on vacation
this year or anything, my story is that I do not make enough
money to live and work. It is one or the other. . . Gas for
work or insulin to live . . . That is the decision that I
have had to make several times lately.
Sincerely,
Christy Long,
Maynardville, TN.
____

The high gas price is having a great impact on me and my
family. I work for the U.S. Postal Service. I have a rural
route, which means I use my own vehicle.
I am responsible for the maintenance, insurance and fuel
for my vehicle. Even though I receive a vehicle allowance to
operate my vehicle for the U. S. Postal Service, it is not
adequate.
My allowance is $26.60 per day. Since I am continuously
running, starting, stopping my vehicle, I go through about 5-
6 gallons of gas a day. At $3.87 a gallon (this what I paid
yesterday) and having to fill up my vehicle every other day,
it is costing me about $25.00 per day (that's $125.00 per
week or $500.00 per month.
That is only for the fuel. I also have to replace brakes,
tires and other items for frequently because of the nature of
the job I perform.
My wife works at Fort Campbell, Ky and we live about 40
miles from her work. The cost for gas for her runs about
$120.00 per week.
Since it was mandated to add 10% ethanol to gasoline, we
get less miles per gallon so this means we use more gas.
Since there is a greater price we pay for gas, everyday
life (food, utilities, etc.) is more expensive. I served over
21 years in the military and I am proud of this service.
America is noted for its compassion for helping other
nations, however, we are doing our own country a disservice
by not taking care of our own.
This my story and I hope with enough stories like this we
can convince the powers that be we need to take care of
business soon. By this, I mean do more drilling and build
more refineries in America and stop depending on other
countries for our own survival.
Thanks for your concern and taking your time to address
this issue.
Sincerely,
James R. Edwards, Sr.,
Charlotte, TN.
____

Dear Sir, You asked how the high gasoline prices are
hurting me?
I can't afford to drive to Moline, Illinois to see my three
daughters nor to see two granddaughters graduate from high
school. I can't drive to Utah to see my Dad and sister. I
can't drive to New Mexico to see my mother. I can't even make
the trip to Branson, MO to help my elderly Aunt and Uncle
every other month. I used to make the round trip drive from
TN to MO to NM to UT to MO to TN once a year. Not now! Can't
afford the gasoline!! I used to go to IL to spend
Thanksgiving with my daughters. I don't think I can afford
that trip this year.
I am barely affording the gasoline to go to work four days
a week, shopping once a week and to Church on Sunday. That
all costs me around $48 a week. Soon I will have to quit my
job because I can't afford the gasoline to drive the 28 miles
a day. If I quit my job, what do I have left?
Goodness sakes! When will this all end? I can't afford to
go to work and eat one meal a day!! I am willing to work, if
I have a way to get there!
Thanks for asking my opinion on this horrible state of
affairs.
Sincerely,
Kaye Nolen,
Dyer, TN.
____

Dear Senator Alexander: My husband and I have lived in
Crossville, TN for 19 years. Never before have we had the
problems making ends meet as we are having now. My husband
works full time at WalMart. He doesn't make a whole lot of
money, but we were getting by. With the gas prices
skyrocketing day by day and the trickle down effect on
everything else, we have had to really tighten our belts. I
used to be able to go to the store a few times a week for
groceries that we would run out of. Now I only go once a
week. If I have forgotten something, or we run out, we have
to do without until I can go the next week. The price of
groceries is another factor and I realize it is mostly
because of the cost of transporting the goods to the stores.
It is also the cost of harvesting the crops due to the
gasoline used for farm equipment. It's hurting all of us.
My husband is 62 and is now seriously considering drawing
his Social Security and working 3 days a week. We would have
more money, but he would have to take a reduced amount
instead of waiting until he's 66 and being able to draw the
full amount. We have also considered getting a more fuel
efficient vehicle, but can't afford to make the payments.
We're actually caught between a rock and a hard place. And
there will be no vacation for us this year, or any year the
fuel prices are this ridiculous. We will just have to stay
home.
Thank you for the opportunity to vent my frustration. I
think you are doing a great job for the people of Tennessee
and I think you would make a great president.
Sincerely,
Ruthann Booher,
Crossville, TN.
____

From: Northern, Brenda
Sent: Mon 6/16/2008 12:54 PM
To: Alexander, Senator (Alexander)
Subject: My family's Crisis!
Sen. Alexander, I appreciate the opportunity to address the
issue of increasing Gas & Diesel prices on my family in
particular, even though everyone is experiencing the same
problem.
I fill my car up each week and the price just keeps going
up, 2 weeks ago it was $53.00, the next week $61.00, and this
week $64.00 and my tank was not all the way empty either
time.
I drive to work the supermarket and stop by to check on my
Mother who is 79 now, and go to Church. I am 60 years old and
would love to have the opportunity to spend more time with my
Mother, my Husband, Children & Grandchildren, but Gasoline
keeps rising, which makes everything else more expensive, so
we have trouble meeting our payments, and no recreation at
all.
My Husband uses Diesel in his vehicle and also his Work
Trucks, and now that cuts down on his profit! He is just a
small business man who moves mobile homes, this is what he
has done for 44+ years, and makes less and less.
We are just simple Christian people with families trying to
make a living on two paychecks, we're a prime example of
those who are rapidly approaching retirement age and yet will
not be able to retire and have a few enjoyable years together
here on earth. I just do not know how we are going to make
it! I would love to spend time with my family, enjoy the few
years I figure I have left without having to struggle just to
buy gasoline to be able to get to work to get a payday that
buys less and less of the necessities of life.
One thing that would help save on gasoline would be, make
the work week 4 (10 hour shifts) instead of 5 (8 hour
shifts).
Since we are already there 2 more hours would not matter if
it would save us a day's supply of gasoline getting there and
back, also would save the companies in electricity etc.
Sincerely,
Brenda Northern,
Walland, TN.

Mr. ALEXANDER. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. DODD. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.

[[Page S6102]]

The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. DODD. Mr. President, if I may, I will inform Senators as to where
we are on the housing bill. Most of my colleagues know that we voted
for cloture yesterday with a substantial vote of 83 to 9--not something
that occurs with great frequency, getting that kind of strong,
bipartisan support for the housing bill, which Senator Shelby and I
have spent weeks crafting, with the support of our members on the
Banking Committee. The most recent vote was 19 to 2, on a committee
with 21 members, where we ended up with strong, bipartisan support to
deal with the foreclosure crisis in this country, to reform government-
sponsored enterprises, and to provide for an affordable housing
program. That is not to mention other provisions that came out of the
Finance Committee, under the leadership of Senator Baucus and Senator
Grassley, to deal with mortgage revenue bonds, tax incentives, first-
time home buyers, and counseling services. As well, we have expanded
the numbers to assist individuals who are seeking to stay in their
homes and are trying to achieve workouts with lenders at a cost that is
affordable for them.
There are many aspects of this important bill. There is no more
important issue before us today than dealing with our economy. One need
only look at the headlines of the major newspapers in the Nation this
morning saying that consumer confidence is the lowest it has been,
according to some, in 40 years. The prospects people see for themselves
and their families are very low. That in itself is a source of great
concern, and it ought to be to every Member of this body--that our
fellow citizens don't see a very bright future for themselves and that
we need to take some steps on energy and health care costs and housing.
We have 8,400 people every day filing for foreclosure. That ought to
alarm everybody. We need to take some steps to allow people to work
this out and stabilize this cascading housing problem.
When you have home values falling by the hour and you have problems
with the lack of new starts, unemployment rates occurring, with it
spreading to student loans and commercial lending, this problem has at
its center the housing crisis and foreclosure crisis all across our
country, and it is not localized in one or two areas.
The fact we have been able to put together a major proposal that
addresses this issue, and yet as we stand here, I am stymied because
one Senator has decided this bill is not going to go forward--one--
because it takes unanimous consent for us to move to the bill.
We already worked out a number of amendments on this bill. People
have ideas they want to bring to it, and I welcome those. We wish to
get to those ideas, even take the agreements we have reached with
Republican and Democratic Senators. One Senator is saying: You can't do
that. Again 8,000 more people are about to lose their homes today, but
one Senator has said: No, I am sorry, but my bill is more important
than the 8,000 of you yesterday or the 8,000 tomorrow who will come up.
We are trying to get this bill done. There are several other
Senators, Democrats and Republicans, who have ideas they wish to bring
to this debate. Some we can agree to, some we cannot. But they deserve
a debate and a vote on their idea. I welcome the opportunity to have
that conversation with them. In many cases, we will try to work them
out if we can. Where that is impossible, then this body has a right or
obligation to vote them up or down, whether or not to accept those
ideas.
We had very constructive conversations with the House of
Representatives. I am very grateful to Speaker  Nancy Pelosi who has
welcomed our work here as we try to work out the differences between
the House-passed bill and our bill, which are not substantial, in my
view. We ought to come to some agreement on those differences.
Congressman Barney Frank from Massachusetts, chairman of the Financial
Services Committee in the House, has been working with us so we can
resolve these differences. I had hoped before we left for the
Independence Day recess we would have been able to send a bill to the
President for his signature. What greater signal could we send, as I
said yesterday, to the American people than this Congress--highly
divided, partisan beyond belief in too many cases--was able to come
together on an issue that affects so many of our fellow citizens. We
are this close to doing it. But I cannot offer an amendment today or
invite Members to resolve their differences because one Senator has
decided we should not do anything except his bill.
Unfortunately, that is how this institution works too often. As
people know, I have been sitting here patiently for the last day and a
half, along with Senator Shelby, trying to resolve these matters. We
have to wait until the end of this day. We will go another 5 or 6 hours
doing nothing, sitting around in quorum calls and listening to speeches
until we run out the clock and then have an opportunity to get to these
issues.
I know there are people who care about Medicare. They care about the
supplemental appropriations bill. People care about the Foreign
Intelligence Surveillance Act. The majority leader has laid this out in
clear, concise terms that we need to deal with these matters before we
leave, and we are going to do it the hard way or the easy way. But it
requires cooperation. It requires people being able to put aside their
differences and let us get to the matters before us.
No other issue is more important. I apologize for getting emotional
about this issue, but it is awfully difficult to go back home when
people are facing gasoline prices that have gone through the ceiling,
they are watching their fellow citizens lose their homes, the values of
theirs, if not losing them, are declining, joblessness rising in the
country, and they are wondering why we cannot manage to get anything
done on their behalf.
While we cannot solve every problem, here we have a collection of
bills worked out in one package, crafted by Democrats and Republicans
coming together, and we cannot even get to debate the issue or bring up
ideas other Members have on how we might improve this legislation.
I wanted to inform my colleagues as to why we have not been able to
get much done here. It is not for the lack of leadership by Harry Reid.
He has been leading and asking the other side to work with us to get
this job done. As he said last evening, there are moments, we all
understand, when partisan politics take over. There are other moments
when you have to set that aside, and this is one of those moments.
So my urging at this moment at 11:15 this morning is, would this one
Senator reconsider what he is objecting to and allow us to get to this
matter. That Senator has had four different opportunities to vote on
his bill. I happen to support his bill, by the way. I think I am a
cosponsor of it. If not a cosponsor, I certainly have been supportive
of it. I also understand there are other issues with which we have to
grapple, and the housing issue is a major one for us.
We are right on the brink. In a couple of hours, we can resolve this
matter, vote on it, send it to the House, and hopefully they will
agree, and send that bill to the President. We can do that literally in
the next 2 or 3 hours if I can only get an opportunity to raise these
matters on the floor of the Senate.
I am deeply grateful to the majority leader who has done everything
conceivable to make this happen. What we are lacking is the kind of
cooperation required to get this bill done. This is not a bill I would
have written on my money, nor would Senator Shelby. There are 100 of us
here. We all have our ideas on how we would frame these matters. But we
are elected to a body that includes 99 other Members, and you have to
sit down with each other and work to achieve anything. When you refuse
to do that, you make it impossible to step forward.
My urging at this hour of the morning is let us get to this bill,
allow these Members--Democrats and Republicans--to have their ideas
brought up, resolved, or voted on so we can conclude this work, send it
to the House, and hopefully to the President of the United States for
his signature.
Mr. President, I ask unanimous consent that the time the Senate
spends in quorum calls during today's session count toward the time
postcloture.

[[Page S6103]]

The PRESIDING OFFICER (Mr. Casey). Without objection, it is so
ordered.
Mr. DODD. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. CRAIG. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. CRAIG. Mr. President, I ask unanimous consent to speak as in
morning business for up to 10 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.

Emergency Supplemental Appropriations

Mr. CRAIG. Mr. President, I am filing at the desk today an amendment
to the emergency supplemental that will be coming over, or is already
here, from the House to reinsert a provision that the Senate put in our
version of the emergency supplemental before it went to the House for
their consideration. This amendment includes a 1-year funding for the
Secure Rural Schools and Community Self-Determination Act. What that
simply means is timber-dependent communities and school districts
across the country would receive their level of funding for one more
year until such time as we can fully reauthorize the act.
The Senate Finance Committee, in the extender legislation, has a
reauthorization in it. But we don't know whether that will come
immediately following the Fourth of July recess or some time into the
summer. Here is the reality of the emergency funding about which we are
talking.
There are 775 counties and 4,400 school districts in 42 States that
is now making critical hiring decisions for the coming school year that
will start at the end of August. These school districts need this
money. It is quite simple. They have no other way of raising the
resource that is now terminated as a result of our inability to move in
the appropriate fashion.
What we are talking about is 9 million schoolchildren who will be
affected. In my State, numerous school districts and potentially
several hundred teachers are getting their termination notices because
there simply is no money to hire or to continue to hire them. What are
we talking about? A timber-dependent county, a county where 90 percent
of its landscape is owned by the Federal Government and 10 percent is
owned in fee simple and pays taxes into the school district, and they
have no possible way of raising enough revenue when a third or a half
of the revenue came from those public lands originally through timber
sales.
Senator Wyden and I some years ago created this legislation. It is
known as Craig-Wyden or Wyden-Craig. We have helped these school
districts, and we are fumbling here trying to accomplish that. We put
it in our version of the supplemental. Now the supplemental comes back.
It is not a pure document. It is not exclusively a military funding
document. It has veterans money in it. It has emergency money in it for
FEMA to handle the disastrous flooding going on in the State of Iowa.
In my State of Idaho, in Clearwater County, we have a disaster. It
isn't flooding. It isn't the Clearwater River over its banks. It is a
school district that is dramatically having to diminish the quality of
education because this Congress has not acted in a timely fashion, and
we simply roll over and say: Oh, well, we will probably get it done in
July, but then again it might be August.
It is now we must act because in August, that school will be back in
operation and that schoolteacher who was teaching some level of
academics in that high school or grade school will be gone because the
money has not been replenished. I call that an emergency. I call that a
need to address the supplemental.

I have talked with the chairman of the Appropriations Committee, I
have talked with the ranking member. They, too, view this as a crisis.
I know we all have our priorities, but in this case Senator Crapo,
Senator Smith, Senator Domenici, Senator Stevens, Senator Murkowski,
Senator Bennett, and others agree with me. And there are numerous
Senators on the Democratic side of the aisle. I have spoken a few
moments ago with Senator Wyden. The State of Oregon will be in crisis
if we don't resolve this in a reasonable fashion.
This is simply a 1-year extension of funding at current levels. It is
not a new reauthorization. It represents about $400 million in the
chairman's mark that moved out of here before. So this amendment, as I
speak, will be filed at the desk, and I would hope, in our effort to
move legislation and finish the supplemental, the emergency
supplemental, that we also recognize there are some domestic
emergencies here at home, such as the flooding on the Mississippi, such
as tornado-ravaged areas, such as school districts having to fire
needed and necessary educators to provide for the quality of education
of their children because Congress did not responsibly fund public
land, Federal public land-dependent counties, and created the crisis by
our inaction.
With those comments, I yield the floor, and I suggest the absence of
a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. DORGAN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. DORGAN. Mr. President, I ask unanimous consent that following my
presentation, if there is a Republican speaker on the floor, they be
recognized next, as has been the course, and that Senator Brown of Ohio
be recognized as the next Democratic speaker.
The PRESIDING OFFICER. Without objection, it is so ordered.

Department of Defense Contracting

Mr. DORGAN. Mr. President, yesterday, there was a hearing in the
Congress, on the House side, dealing with someone I have spoken about
on the floor at some length, and I wish to talk about that hearing and
what it means. Then, following that, I wish to speak about the bill I
introduced yesterday dealing with the price of gas and oil and oil
speculation.
First, let me talk about the hearing yesterday and what we learned
about the Defense Department and the State Department and others
dealing with this man. This man's name is Efraim Diveroli. He is 22
years old and the president and chief executive officer of a firm that
was awarded $300 million in contracts by our Federal Government. So
this is a guy who took over a shell corporation that his dad had, and
he was awarded $300 million in Defense Department contracts. He was the
president of the company at age 22. He had a vice president, though. It
is not as if the company was understaffed. This is a photograph of his
25-year-old vice president, who is a massage therapist--David Packouz.
He was called a masseur, or massage therapist. So these two guys ran a
company in Florida that had an unmarked office door. At one point, Mr.
Diveroli, the CEO, says he was the only employee and at another point
it was he and his vice president, the massage therapist.
They got $300 million from the Federal Government, from the Defense
Department, and they were to provide weapons and ammunition to the
Afghan fighters because our Defense Department wanted to help the
Afghan fighters take on the Taliban in Afghanistan. Well, here is what
these folks provided to the fighters in Afghanistan--40-year-old
Chinese cartridges which came in boxes that were all taped and falling
apart--this is an example. They were made in China in the mid-1960s. It
is pretty unbelievable. The fighters in Afghanistan said this was junk
coming from this company that got $300 million in contracts from the
Defense Department.
Now, I had the three-star general come to my office. I am on the
Appropriations Subcommittee on Defense, and we shovel a lot of money
out the door for a lot of these Defense needs, some legitimate, some
not, and I had a lengthy meeting with the three-star general who was in
charge of this. I said: How on Earth could you have given a contract to
a company run by a 22-year-old, who had very little experience, running
a shell company his dad owned, a company where his vice president was a
massage therapist? This is a joke, except it is not a joke when the
American taxpayers are fleeced. He gave me a hundred excuses, this
three-star general did.

[[Page S6104]]

But all he would have had to do is go to MySpace. Pull this man up on
MySpace, the president of this company, and here is what he says on
MySpace.

I like to go clubbing, go to a movie. I have taken a really
liking towards fine Scotch whiskey. I have had problems in
high school, so I was forced to work most of my teen years.

He probably grew up a little fast.

Got a decent apartment. Am content for the moment.

Go to MySpace. Is this the CEO of a company you want to give $300
million in contracts to?
This is an outrage. So a hearing was held yesterday, and here is what
the hearing disclosed. There was a watch list at the State Department.
This company--these guys--had small contracts with the State
Department, and the State Department had compiled a watch list of
80,000 individuals and companies suspected of illegal arms
transgressions and other things, including this company. Well, the fact
is, the Defense Department never checked the State Department.
Contracts have been pulled from this little company, but the Defense
Department never checked, so they give them a $300 million contract, or
a series of contracts, worth $300 million.
The reason they say it didn't show up is because they don't check on
contractors that maybe are bad contractors if the contract is less than
$5 million. That is, apparently, an asterisk.
I mean, I don't understand this at all. Government officials failed
to review several of these contracts from this little company that had
been canceled or delayed. They never raised red flags because they fell
under the $5 million contract value that was the warning threshold. The
contracting officer with the Army Sustainment Command had overruled a
contracting team that raised concerns about this company. They said
there was substantial doubt, but nonetheless the company got the
contracts. Listen, this is shameful. We ought to do--and, yes, we in
the Senate as well--ought to do a detailed investigation. We should
bring people here under subpoena, if necessary, to find out who made
these judgments and why they are still working for the Federal
Government. Why aren't they long ago gone from the Federal payroll?
This is not the end of it or all of it. I have spoken about dozens and
dozens of contracts that are similar to this.
At any rate, yesterday, this hearing occurred in the House. I commend
Congressman Waxman, who has been doing some of the most significant
work in the Congress in investigating this. We need to investigate this
on the defense spending side as well, those who appropriate this
funding. This is shameful, and I think everybody involved in it ought
to be embarrassed. We are shoveling money out the door to support the
war in Iraq and Afghanistan.

I have shown pictures on the floor of the Senate of one-hundred
dollar bills wrapped in Saran Wrap the size of bricks, and the guy
distributing that cash in Iraq said he told contractors our motto was:
We pay in cash, you bring a bag. It was like the Wild West, he said.
You think money isn't wasted? You think there isn't stolen money over
there, when you are distributing money out of the back of a pickup
truck and we are airlifting one-hundred dollar bills on C-130s, flight
after flight, full of cash?
This is unbelievable what is happening with this contracting abuse,
and this is one, small example.
I think all those involved in it ought to be brought before
congressional committees and that we demand answers from them. Who is
responsible, who is accountable on behalf of the American taxpayer? If
they can't answer, they ought not be on the public payroll.
That takes care of my need for therapy to talk about this issue. It
is almost unbelievable that the American taxpayer, en masse, is not
gathering outside this Capitol saying, when we hear this kind of thing,
we are outraged. So let me be outraged on behalf of them and say this
cannot be allowed to continue.

Speculating on Oil and Gas

Mr. President, I came to the floor to talk about the issue of the
price of gasoline. I had a guy in my office the other day that was the
president of one of the larger corporations and this company was
engaged in trading and all these issues. He was a fast talker. I mean,
it was unbelievable to me. When he finished talking, I was out of
breath. He was one of these guys who talked and talked and talked. His
point was: Look, everything is working fine. The price of oil, the
price of gas, that is what the market says it is. I said: Well, it
appears to me there are substantial amounts of speculation. Over a
period of time in this world we have seen some dramatic growth in
speculation in certain areas. When it happens, the markets break and
you have to come back and herd the speculators out and have markets
available for the legitimate transactions.
This person said: Speculation, are you kidding me? These are normal
transactions on the commodities market, the futures market for oil, as
an example. There is supply, demand, and people are involved. I said:
Well, tell me this, if you would: What has happened in the last 15
months? Tell me what has happened with respect to supply and demand
that justifies doubling the price of oil in the futures market? Can you
tell me? Then he spoke for 45 minutes, almost uninterrupted, and had
not answered the question.
I said: That makes my point. At the end of this meeting, you can't
answer the question because nothing has happened in the last 15 months
that demonstrably alters the supply-and-demand relationship or that
justifies what has happened with the price of oil. Nothing justifies
doubling the price of oil in the last 15 months. The only conclusion
you can come to--and many have and I certainly have--is that we have a
carnival of speculation in the futures market by a lot of big-time
speculators interested in making money. They do not want to own oil or
take possession of oil. They do not want to use oil. They wouldn't be
able to recognize oil at first blush. They wouldn't even be able to
lift a 30-gallon drum of oil. They just want to make money speculating
on oil.
So if we have a bunch of speculators in this carnival of greed who
rush into these markets and drive up prices well beyond what the
fundamentals would justify, it breaks the market. If the market is
broken, we have a responsibility to set it right. When the commodities
market for oil was established in 1936 by legislation, Franklin Delano
Roosevelt said we have to be careful to have the tools to stop the
speculators from taking over these markets. There is a specific piece
in the 1936 act that talks about excessive speculation.
There is excessive speculation in the marketplace now, and it is
running up the price of oil and gas. It is hurting every single
American family, it is damaging this economy, it is dramatically
injuring industries--such as airlines, truckers, farming, and others.
The question is, What should we do about it?
Should we sit here somewhere in a crevasse between daydreaming and
thumbsucking and decide to do nothing? Or should we finally decide we
have to take some action when a market is broken?
Let me go through a couple charts. I have used them before so it is
repetitious, but it seems to me it is useful repetition in describing a
very serious problem.
Here is what has happened to the price of oil. There is no event in
here that suggests this should be the price of oil. You double the
price. There is nothing in here that justifies doubling the price. The
fact is, people are driving less in this period. There were 4.5 or 5
billion fewer miles driven in this country in a 6-month period; 4.5 to
5 billion fewer miles driven, less gasoline used. That means lower
demand. At the same time, in the first 4 or 5 months of this year, we
saw crude inventory stocks rise, not fall. If inventory is going up and
demand is going down, what is happening to the price of oil and
gasoline? It is going up? That doesn't make any sense. That is not
logical. That is a market that is broken.
Let me analyze what all that means. This is what a commodity exchange
looks like. This is the New York Mercantile Exchange, called NYMEX.
There are a bunch of folks who trade. They come to work and do a
legitimate job. They are trained to do this job, and they are trading
on behalf of others. But what has changed is, instead of it being just
a legitimate market for

[[Page S6105]]

hedging between those who produce and those who consume, wanting to
hedge a physical commodity, we have now people in this market who have
no relationship to this commodity.
Will Rogers described it a decade ago. He described people who buy
things they will never get from people who never had it, making money
on both sides. That is speculation.
Here is what some folks have said about these issues. Let me
describe, first, before I describe what some other folks have said
about it, the 1935 act. It says, this is the commodities act that
establishes this--

This bill authorizes the Commission . . . to fix
limitations upon purely speculative trades and commitments.
Hedging transactions are expressly exempted.

The point is the underlying bill authorizes the regulator, the
Commodity Futures Trading Commission, to fix limitations on purely
speculative trades. That is exactly what the Commission is supposed to
do. But the Commission has largely taken a vacation from reality. It
seems to have no interest in regulating. I am talking especially about
the chairman and those who control the Commission.
Here is Fadel Gheit, 30 years as the top energy analyst for
Oppenheimer & Co. He testified before our committee. I have spoken to
him a couple times by phone. Here is what he says:

There is absolutely no shortage of oil. I'm convinced that
oil prices should not be a dime above $55 a barrel. I call it
the world's largest gambling hall. . . . It's open 24/7. . .
. Unfortunately, it's totally unregulated. . . . This is like
a highway with no cops on the beat and no speed limit and
everybody's going 120 miles an hour.

I encourage my colleagues, if you want to understand what is
happening in this market, call Mr. Gheit. He has been involved as an
energy trader with the large companies. He will give you an earful. I
have had the opportunity to hear him not only in committee, but I
called him as well and had a conversation about speculation.
The president of Marathon Oil Company: ``$100 oil isn't justified by
the physical demand of the market.''
I am going to have a hearing this afternoon with the head of the
Energy Information Administration, EIA. I fund this agency in my
appropriations subcommittee--Mr. Caruso heads it. I wish to show what
the EIA has projected on all these occasions for the price of oil and
gasoline.
In May of last year, they projected this yellow line. That is where
the price would go. In July of last year, they projected this yellow
line. In September, they projected this. Do you see what the momentum
is? In terms of what they are projecting, in every case they are
demonstrably wrong--not just wrong by a little, wrong by a lot.
We spend over $100 million for this agency to get the best and
brightest, to determine as best they can what is going to happen to the
price of oil. They have always believed the price is essentially going
to remain about the same or go down. The price, however, has gone way
up. Why? Because unbridled speculation exists in this market with
speculators driving up these prices.
Despite that, the EIA testifies and has testified repeatedly: They
see some speculation but not very much.
If they believe this represents the fundamentals in the marketplace,
how on Earth could the best estimators in an agency we spend $100
million a year on--how could they be this wrong? There is something
fundamentally wrong with that piece.
Finally, 2 days ago, the House released a report that was done by a
House subcommittee that talked about the explosion of speculation on
the futures market. It went from 37 percent speculative trades in 2000
to 71 percent of the trades now that are ``speculation.''
I describe all that to say I have introduced legislation. I am
talking to Republicans and Democrats in the Senate, hopeful of
garnering cosponsors to move this legislation that addresses this issue
by saying to the Commodity Futures Trading Commission: You have the
authority to do the following, and you should do the following, just
going back and reading the underlying law that created you. No. 1,
identify those trades that represent legitimate hedging trades between
a producer and a consumer with a physical product in which they wish to
hedge risk. That is precisely what the market was established for.
Distinguish that kind of trading from all other trading which
represents nonlegitimate hedging, or speculation.
Once you have determined what body of trading represents speculative
trading--and it has been a carnival of greed, in my judgment, rushing
and pushing up the amount of speculative trading, as I have shown--once
you have done that, I suggest we impose a 25-percent margin on the
speculative trading that is going on, in order to try to wring some of
that excess speculation out of this market.
No. 2, I suggest the regulator have the opportunity to use their
authority to either revoke or modify all their previous actions,
including their ``no action'' letters, in order to shine the light on
and see and regulate all the transactions that have to do with American
products or trading in this country.
Strangely enough, the Commodity Futures Trading Commission itself
said, for example, the Intercontinental Exchange, largely owned by
American interests, that trades in London--that you can come here, you
can set up an office in Atlanta, you can trade on computers in Atlanta,
and we will decide of our own volition that we will not regulate you
and you will be outside the purview of our sight. That is an
unbelievably bad decision, and it needs to be revoked--not just that
decision but so many others similar to it.
It would be nice if we would have a regulatory body that says our job
is to regulate. We pay for regulatory bodies for the purpose of wearing
the striped shirts; they are the referees, they call the fouls.
I think, having taught some economics in college, that the best
allocator of goods and services in this country that I know of is the
marketplace. Markets are wonderful. I am a big supporter of markets.
But when markets are broken, the Government has a responsibility to
act. We have a regulator that has been oblivious to open markets, in
fact has accelerated and actually helped break them. I believe our
responsibility at this point is to set this regulator straight and
decide here are the conditions by which we own up to the
responsibilities of the original act--allowing for legitimate trading
and hedging but trying to shut down the speculation that has driven up
the price of gasoline and that injures every family and every business
in this country and damages the American economy.
My hope is, in the coming couple days and weeks, that Congress, and
the Senate especially, will be able to consider the bill I have
authored. There are other good ideas as well. I welcome all of them.
But I think this is not a circumstance in which one of the options for
the Congress is to do nothing. The American people expect more and
deserve more and I think should get more from this Congress.
I have spoken to Senator Reid and many others, who are also very
interested in moving on these issues. I hope it will be bipartisan. I
am very interested in having Republicans and Democrats work on
perfecting these issues so we can take action very soon.
I yield the floor.
The PRESIDING OFFICER. The Senator from Oklahoma.
Mr. INHOFE. Mr. President, I ask unanimous consent that I be
recognized as in morning business to be followed by the Senator from
Ohio, Mr. Brown, and he would be followed by the Senator from New
Hampshire, Mr. Gregg.
The PRESIDING OFFICER. Is there objection?
Mr. FEINGOLD. Mr. President, I ask I be added after Senator Gregg.
Mr. INHOFE. And the Senator from Wisconsin be after Senator Gregg.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. INHOFE. First of all, it is my intention--which I will not do
right now because I know what would happen--to introduce an amendment
to the housing bill that makes eminent sense. But I know and I have
been told it would be objected to, so I will not do it, but I will
explain it in hopes that at a later time we will be able to get this
in.
The amendment I have is simply a one-page amendment. What it does, it
would prohibit individuals who annually make more than $75,000 and
couples making more than $150,000 from

[[Page S6106]]

receiving taxpayer-backed bailouts of troubled mortgages. The main
provision of the housing bailout bill is a program to allow troubled
mortgage holders to refinance their mortgage into a Government-insured
loan through the FHA. The bill allows the FHA to take on up to $300
billion in troubled mortgages, into the taxpayer-backed program.
In this bill, as currently written, the value of an eligible loan
under the FHA is $550,000. The nationwide average value of a home is
roughly $200,000. The average value of a home in Oklahoma is just under
$150,000.
I believe it is bad policy to put taxpayers on the hook for borrowers
who took on more than they could afford and lenders who made bad loans
to begin with. It is entirely unacceptable to have the Government put
taxpayers on the hook for someone who qualified for a loan more than
two or three times what the average American can afford.
When Congress passed the economic stimulus package, Democrats
vehemently argued certain people make too much money to benefit from a
handout from the U.S. Government; specifically, eligibility for the
full-time stimulus was capped at $75,000 for an individual and $150,000
for couples. So this amendment says that if you are too rich to get a
full stimulus check, you are too rich to get a bailout.
Another provision of the housing bill provides an interest-free loan
of $8,000 for first-time home buyers and applies income limits of
$75,000--there it is again--for individuals and $150,000 for couples.
It is perfectly reasonable to apply those same income standards for
individuals who are getting a taxpayer-backed bailout on their
mortgages.
Someone with a $550,000 mortgage pays approximately $3,300 a month on
housing alone--that is assuming a 30-year fixed-rate mortgage at a 6.3-
percent interest rate. That comes to $39,600 a year in mortgage
payments alone. According to the Bureau of Economic Analysis, average
per capita income in the United States, in 2007, was $38,600;
therefore, someone with a $550,000 mortgage will be spending around
$1,000 more on their home alone than the average American makes in an
entire year.
The Congressional Budget Office came out and warned that 35 percent
of the loans refinanced through the program will eventually default
anyway. CBO also highlighted the perverse incentives in this bill,
noting that banks will use the program to offload their highest risk
loans to taxpayers. CBO said:

. . . the cumulative [default rate] for the program would
be about 35 percent and that recoveries on defaulted
mortgages would be about 60 percent of the outstanding loan
amount. Those rates reflect CBO's view that mortgage holders
would have an incentive to direct their highest risk loans to
the program.

Washington should not be holding folks who have been responsible for
their mortgage liability responsible for the irresponsible decisions of
others. We should not be putting taxpayers on the hook for bad loans
made by irresponsible lenders and borrowers. We most certainly should
not be putting taxpayers on the hook for individuals who can afford two
or three times what the average taxpayer can afford.
This is especially true when there is no guarantee the program would
not have to be bailed out after the additional taxpayer dollars. There
is a very good chance, in fact, that this program will require
additional tax dollars; that this is just the beginning.
On June 10, the New York Times reported that the FHA--the agency we
are mandating in this bill to take on the worst loans made during the
subprime housing crisis--currently faces $4.6 billion in losses, four
times the amount of losses than the previous year and over 20 percent
of its capital reserves.
The day before the New York Times story, Reuters reported that the
head of FHA, Brian Montgomery, has serious concerns about the housing
legislation we are now considering:

Some in Congress are advancing legislation . . . that could
be problematic for the economy and the country.

He further said:

FHA is designed to help stabilize the economy . . . it is
not designed to be a lender of last resort, a mega-agency to
subsidize bad loans.

Yesterday the Wall Street Journal reported the FHA is having serious
trouble with the bad mortgages that are already on the books and will
likely require an appropriation of over 1 billion in Federal tax
dollars as soon as next year.
This would be the first instance of a government subsidy for the FHA
since it was created in 1934.
The Journal reported:

The FHA, which essentially is filling the void left by the
collapse of the subprime market, will request a Government
subsidy for the first time in its 74-year history. The agency
says it will need $1.4 billion next year.

The American taxpayer, the taxpayers in my State of Oklahoma, should
not be put in a position where they are ultimately responsible for the
irresponsible decisions of others, and they certainly should not be on
the hook for relatively well-off individuals, not to mention large
lending companies that made poor financial decisions.
Lastly, let me say we are using the same standard, this $75,000 per
individual or $150,000 for a joint return, that would be the same level
we are using in the rest of this bill and other programs, including the
economic stimulus program.
I yield the floor.
The PRESIDING OFFICER. The Senator from Ohio.

Minimum Wage

Mr. BROWN. Mr. President, 70 years ago today President Roosevelt
signed the Fair Labor Standards Act into law. After two decades of
devastating Supreme Court opposition, a Supreme Court in those days
with a similar bias against workers that our Supreme Court has today--
think of Ledbetter and so many other cases they have made. But after
two decades of devastating Supreme Court opposition, and 3 years after
that Supreme Court declared the National Industrial Recovery Act
unconstitutional, Americans finally were assured of a minimum wage,
reasonable work hours, and an end to child exploitation.
Senator Hugo Black, who sat at this desk in the Senate in the 1920s
and 1930s, was fundamental in this historic achievement. Black, in the
early 1930s, prior to Roosevelt becoming President, had introduced
legislation calling for a 6-hour workday. It was considered so radical
and so controversial that the 8-hour workday signed into law by
President Roosevelt was considered more reasonable and more palatable,
and the Congress went along.
Black, by this time, by the time the minimum wage actually went into
effect, was a member of the Supreme Court appointed by President
Roosevelt. Black, in those years leading up, joined with President
Roosevelt, Labor Secretary Frances Perkins, and labor leader Sidney
Hillman to craft legislation that would withstand judicial challenge.
It was not an easy fight, but progressives stood firm for social
justice and for economic justice. They said ``no'' to worker
exploitation and they created a path to the American dream for
millions. As the minimum wage floor was established, other wages went
up also, and more and more workers joined the middle class and as a
result came out of poverty and joined the middle class. For the first
time in our Nation's history, people who worked hard were assured of a
reasonable standard of living and decent labor conditions.
Where is that commitment today? Today's low- and middle-income men
and women have been hit hard by the failed economic policies of the
last 7 years, bad trade policy, bad tax policy, all up and down. We see
what has happened to our economy in the Presiding Officer's home State
of Pennsylvania, my State of Ohio, from Lima to Zanesville, and
everywhere in between.
With gas at $4 a gallon, rising health care costs, skyrocketing food
prices, it is more and more difficult for hard-working Americans to
keep pace. Now 70 years of progress is eroding. Income inequality is
the worst it has been in this country since before Roosevelt, since the
Depression and the New Deal gave birth to the minimum wage.
Tim, from Cleveland Heights, OH, a suburb southeast of Cleveland,
used to donate to food banks, soup kitchens, and charities before his
family fell on hard times. He never thought he would need that help
from others. But as the cost of living went up, Tim, who has a full-
time job--his wages did not keep

[[Page S6107]]

pace. It took 3 months of financial strain before Tim and his family
realized they needed to use the food bank he had been contributing to
in the past.
Tim used to consider himself middle class. He does not picture
himself that way anymore. But there is reason for hope. In 2007, this
Congress, the House and the Senate, passed the first minimum wage
increase in 10 years. Workers now earn $5.85 an hour, and will get a
raise of 70 cents next month. This is a positive step but just the
first. We must continue to push for a living wage for all of Ohio and
America's hard-working men and women.
Today someone earning a minimum wage and working full time makes only
$10,700 a year. That is $6,000 below the poverty line for a family of
three. That, put mildly, is unacceptable. Congress must work to index
the minimum wage to inflation to give workers relief in these hard
times.
Under current policy, wages stay low as prices go up. Wages in real
dollars are far below the minimum wage, and in real dollars are far
below what it was 40 years ago. Hard-working Americans are at the mercy
of politics and business lobbies for an increase in pay, while CEOs of
corporations such as Exxon are reporting record paydays. This is
unconscionable.
Franklin Roosevelt said:

A self-supporting and self-respecting democracy can plead
no justification for the existence of child labor, no
economic reason for chiseling workers' wages or stretching
workers' hours.

Like Roosevelt, we must stand for social and economic justice. If
social justice and economic justice works for hard-working Ohio
families, hard-working American families, and social and economic
justice builds a better society, we must do our part to ensure that
those who want to work can make a living wage.
We must fight in this Chamber for families who are struggling to stay
above the poverty line, families who work full time and play by the
rules, pay their taxes, are involved in their communities, raising
their kids. We must ask ourselves what kind of country we want this
great country to be.
I yield the floor.
The PRESIDING OFFICER. The Senator from New Hampshire is recognized.
Mr. GREGG. Mr. President, I want to speak on the bill, not in morning
business.
I am concerned we are not getting to a lot of the issues in this bill
we should get to. Although I am supportive of the underlying bill, one
of the issues we are not getting to, and I do not understand it, is the
need to extend the renewable tax credits.
Senator Ensign and Senator Cantwell have brought forward an amendment
to accomplish this. The renewable tax credits are those tax credits
which create an incentive for using things that are more energy
efficient: making your home more energy efficient, using solar, using
wind, using wood pellet stoves, things which are basically alternative
sources of energy, or doing additions to people's homes which make
their homes more energy efficient.
At a time when gas prices are extraordinarily high, and oil prices
are going through the roof, especially home heating oil--in fact, it is
estimated home heating oil will be about $4.77 this week--it is
essential that we do whatever we can as a government to encourage the
use of alternative sources and renewables and to encourage people to be
more energy efficient as they either build a new home or they refurbish
and renovate their old homes.
That seems to be common sense to me. It has such common sense that
this proposal, the extension of the renewable tax credits, passed this
body with 88 votes. However, for some reason it is not being allowed to
be brought up on this bill.
It is very appropriate for this bill, it is even germane to this
bill, as I understand it, which is a pretty heavy test to pass. But it
is not being allowed to be brought up for a vote. I cannot understand
that. This is such an important action from the standpoint of giving
consumers and people who are struggling with high energy cost options.
It is something we should rush to do. It is not something that should
be delayed by the leadership of the other side of the aisle. But that
is what is happening.

I join with Senator Ensign and Senator Cantwell and strongly
encourage the leadership of the Senate Democrats to allow a vote on
this amendment and let it pass. If the House does not want to take it,
that is their choice. But I suspect the House will, because, again, it
is common sense, and commonsense ideas usually lead to common ground,
which leads to something happening around here.
When you have got 88 votes for something, it should be done. In the
larger context of the energy crisis which we face, this type of step is
critical. It is not going to solve the whole problem, we know that, but
it is certainly part of the matrix of moving to a more positive result
and getting our energy costs under control.
People in New Hampshire--this is true across the country, but people
in New Hampshire are thinking about next winter and the cost of home
heating oil is going to be extraordinary. It looks as if this will add
tremendous stress, especially on people who live on a fixed income but
even those who were able to adjust their income through working are
going to find it difficult. They are going to find it difficult,
because at $4 a gallon, if they have to commute to work--and most
people in New Hampshire have to commute; it is a rural State from the
standpoint of moving around--they are going to find it much more
expensive to commute. Most people use oil to heat their homes, and with
home heating oil at over $4.50 a gallon, you are talking about a
doubling of the oil costs from last year. That is going to overwhelm
the pocketbooks and the economic situation for a lot of people in New
Hampshire. It is going to be a real hardship. We need to do something
which will relieve that.
This is one element of extending the renewable energy tax credits.
But another major element of it is for us to have an energy policy at
the national level which essentially promotes American production of
energy. We should produce more American energy and obviously we should
consume less. There is no question that conservation is a critical
element, as are renewables. But on the production side, there is no
reason that we as a nation have locked up our capacity to use our
resources in order to relieve the pressure on America's people who are
now having to pay these outrageous prices for energy, and with the
revenues from those purchases going overseas, in many instances to
nations which do not like us all that much.
In addition, obviously every time we send a dollar overseas, it is a
dollar that can't be invested here in more jobs, in more economic
activity, and the fact that we have now tripled what we are exporting
in the way of resources, in the way of dollars, again to countries in
some instances that do not have a great deal of admiration for us, in
many ways are antagonistic to us--the exportation of those huge amounts
of dollars, over $300 billion a year, is money which we need here in
America to make ourselves stronger.We are heading down a very dangerous
road here when we do not recognize that we need to produce American
energy and keep those dollars in the United States, rather than
shipping them overseas.
Now, from the other side of the aisle we heard these proposals, we
heard it from the Senator from North Dakota, that the way to address
this is to litigate; the way to address this is to regulate; the way to
address this is to tax.
Well, none of those initiatives add more resources to the mix. And
this is, in large part, an issue of supply and demand. The world is
expanding. India and China have a population base of almost 2.5 billion
people between them. We have 300 million people. They are growing
economically, and they are using a lot of energy to do that.
We have to recognize that if we are going to remain competitive and
productive and strong, we have got to produce energy here, we have got
to conserve it--we have to produce more of it, and we have to use less.
As part of that initiative, we need to look at ways and places that
we can produce more, areas such as oil shale, for example. We have more
reserves in oil shale, three times as much reserves in oil as Saudi
Arabia. The estimate is between 2 and 3 trillion barrels of reserves in
oil shale alone. We have huge

[[Page S6108]]

reserves in Outer Continental Shelf oil and gas. But both of those
types of resources are being locked down by opposition, again
regrettably by the other side of the aisle, which says we cannot drill
in the Outer Continental Shelf except in the Gulf of Mexico, and we
cannot use the oil shale reserves which are available.
In fact, 100 percent of the oil shale reserves have been put off
limits by policies of the other side of the aisle, supported by their
national Presidential candidate, Mr. Obama, and 85 percent of the oil
in the lower 49 that is potentially out there on the Outer Continental
Shelf has been put off limits, again, by the other side of the aisle
and, again, supported by Senator Obama. That is a huge amount of
reserves which we are leaving in the ground while we buy oil at
exorbitant prices from Venezuela, a country led by an individual who
hates America; oil from Iran, a country where the entire government
hates America and anything western.
Why do we do that? That makes no sense at all. Clearly, we have these
reserves here, and they can be recovered in an environmentally safe and
sound way. The example on the Outer Continental Shelf was shown when we
saw Katrina, a horrific disaster, a force 5 hurricane that came up the
Gulf of Mexico and wiped out one of our great cities, New Orleans.
Virtually no oil or gas was spilled as a result of Hurricane Katrina.
Yet it went right across the Gulf of Mexico where all the major oil and
gas rigs are. That proved beyond any question that gas and oil can be
produced on the Outer Continental Shelf with environmental safety.
There is a lot of it out there that has been locked down. Eighty-five
percent of the potential leaseholds are no longer available because of
the position taken by the other side. In the area of oil shale, these
huge reserves which may be available to us are recoverable by drilling
underground and by doing almost all the effort to recover that oil
underground so that what actually comes out of the ground is virtually
the product that is used. We could essentially get all the oil we need
in order to operate the armed services of the United States, the
biggest consumer of oil in this country, simply from oil shale because
it is a heavy oil which is diesel-like fuel. Yet that is locked down;
100 percent of that is locked down by the policies of the other side of
the aisle.
We can move on, of course, to another source that we need to use,
which is nuclear power. Nuclear power is essential if we are going to
produce the electricity necessary to make this country productive and
prosperous and to meet the need to reduce greenhouse gases which are
creating problems for us as a culture and for the world. The other side
of the aisle has resisted and stopped construction of new nuclear
powerplants. We are uniquely familiar with this in New Hampshire. We
had the last nuclear powerplant that went on line, Seabrook. It took us
an extra 10 to 15 years to build that plant beyond what it should have
required. It cost us almost $1 billion more than it should have cost,
and almost all of those costs and delays were a function of protests
undertaken by very activist elements led primarily by the Democratic
Party within the State of New Hampshire.
There has never been an apology for what they did to the people of
New Hampshire--over a billion dollars of extra energy costs put on the
people of New Hampshire, a direct tax, and yet Seabrook, once it was
turned on, has delivered power for almost 18 years and has delivered it
safely and at a fair price, to the point where New Hampshire actually
exports energy to surrounding States as a result.
We know nuclear power can be safe. Nobody has ever died from nuclear
power as compared with other types of power sources. We should not bar
its development; we should encourage its development. We need new
nuclear powerplants. We need new sources. We need to find and explore
for new sources of energy such as are available on the Outer
Continental Shelf and in oil shale.
Yet, regrettably, what we run into here is that everybody can agree
on the need for conservation, but it doesn't appear we are going to
agree on the need for renewables because that amendment is being
stopped. But the idea that we should go out and produce more American
energy so we are not buying energy from Venezuela and from Iran, that
is rejected, regrettably, by the other side of the aisle.
The policy presented in their energy plan was taxation, litigation,
and regulation. We heard it again today. We just regulate our way into
a surplus of supply. That is not going to happen. You can't take a
trial lawyer and stick him in your oil tank, in your house, and get
energy. The simple fact is, giving the trial lawyers the ability to sue
Venezuela isn't going to produce any more energy for the United States.
What it is probably going to do is create an atmosphere where
countries that dislike us within the OPEC group are going to say: The
heck with you. You want to create a lawsuit against us, we don't have
to sell you the energy or, when you send us your money, we don't have
to reinvest in the United States. It is cutting off our nose to spite
our face. It is a policy that is virtually absurd on its face because
it will have so little productive effect on the price of energy.
The same could be said for taxation. We are going to create a
confiscatory tax on companies that produce energy, American companies.
Those companies only control about 6 percent of the world's reserves.
The rest of the world's reserves are controlled by nations such as
Saudi Arabia, Venezuela, and Iran. They are not going to be subject to
that tax, their companies. So that puts our companies immediately at a
competitive disadvantage.
What do these companies which have been so vilified around here and
such easy targets for the online press release really do with those
profits? They do two things: They reinvest them in trying to find more
energy, which will hopefully be American-produced energy, which is good
because more supply reduces cost, or they distribute those profits to
shareholders. Who are the shareholders? Most Americans are
shareholders, and most American shareholdings are in these companies.
If you have a 401(k), if you are a member of a pension fund, if you
are a union employee and you have a pension fund, the odds are good
that pension fund is invested in one of these companies that are going
to be subject to this brand new taxation coming from the other side of
the aisle. There will be less money to explore and less money to
distribute back to working Americans through their pension funds and
dividends. That is not going to produce any more energy; in fact, it
will produce less. That, again, accomplishes nothing except putting out
a press release which has nice cosmetics, but when you look behind it,
it has no substance as to addressing the fundamental issue.
The fundamental issue is this: We, as a country, need more American
energy production, and we need to consume a lot less. There are two
sides to the coin. We also need a renewable policy that works. That is
why this amendment offered by Senators Ensign and Cantwell, and which
has such broad support here, should be voted on. It is a no-brainer.
Let's at least move this part of the package of responsible energy
policy. I cannot understand why it is not being voted on, especially
since it is relevant to the housing bill. We should pass this in a
nanosecond because it will at least help in a small way toward moving
our energy policy in the right way, which is toward more renewables as
we address the issue of production and conservation along with it.
I yield the floor.
The PRESIDING OFFICER (Mr. Menendez). The Senator from Wisconsin.

FISA Amendments Act of 2008

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

[[Page S6109]]

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

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

House minority whip Roy Blunt said:

The lawsuits will be dismissed.

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

[[Page S6110]]

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

[[Page S6111]]

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

[[Page S6112]]

having it sunset in the next Presidential election year when partisan
politics will once again be at their worst. Or we could extend the
effect of any current PAA orders for 6 months or a year. All of these
options would address any immediate national security concerns.
What we do not have to do and what we should not do is pass a law
that will immunize illegal behavior and fundamentally alter our
surveillance laws for years to come.
I have spent a great deal of time over the past year--in the Senate
Intelligence Committee, in the Senate Judiciary Committee, and on the
Senate floor--discussing my concerns, offering amendments, and debating
the possible effects of the fine print of various bills. But this is
not simply about fine print. In the end, my opposition to this bill
comes down to this: This bill is a tragic retreat from the principles
that have governed Government conduct in this sensitive area for 30
years. It needlessly sacrifices the protection of the privacy of
innocent Americans, and it is an abdication of this body's duty to
stand up for the rule of law. I will vote no.
Mr. President, I yield the floor, and I suggest the absence of a
quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. REED. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. REED. Mr. President, I ask unanimous consent to speak as in
morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Rhode Island is recognized.
Mr. REED. Mr. President, we are at a critical moment. According to
the Mortgage Bankers, the rate of foreclosures and the percentage of
loans in the process of foreclosure are at the highest recorded level
since 1979.
The delinquency rate for all mortgage loans on one- to four-unit
residential properties stood at 6.35 percent of all loans outstanding
at the end of the first quarter of 2008. This is an increase of 151
basis points from 1 year ago--a 1.5-percent increase--which is usually
significant because it translates into thousands and thousands of
Americans who are facing foreclosure.
The percentage of loans in the foreclosure process was 2.47 percent
at the end of the first quarter, more than double what it was a year
prior.
In my own State of Rhode Island, 5.65 percent of all loans are past
due, and 2.75 percent are in foreclosure.
That is a staggering statistic. Rhode Island has the unfortunate
distinction of having the highest foreclosure rate in New England and
is fourth in the Nation for subprime foreclosures.
For many Rhode Islanders--in fact, the majority--their home is their
wealth, their nest egg. Unfortunately, with such a high foreclosure
rate, many Rhode Islanders are seeing their wealth erode as home prices
fall. Thousands more are in default because they are no longer able to
refinance or sell their homes since their mortgages are now worth more
than the appraised value of their homes.
This week, the latest Case-Schiller home price index was released.
Home prices in 20 U.S. metropolitan areas in April fell by 15.3 percent
from a year earlier, signaling that the housing recession is not over.
In fact, it continues unabated.
More foreclosures will further exacerbate the overall decline in
property values and have a dramatic and drastic effect on entire
communities. It is clear that this vicious cycle in the mortgage and
housing markets is negatively impacting the entire economy.
In addition, as a result of the credit crunch in the mortgage
markets, Fannie Mae and Freddie Mac are now the largest player in the
secondary housing market. Combined, they are purchasing and
securitizing almost 80 percent of the mortgage market right now and
almost single-handedly are keeping mortgage credit flowing throughout
the country.
Fannie Mae and Freddie Mac are at a critical juncture, and we need to
make sure they are well capitalized and overseen by a strong and
independent regulator with more bank-like regulatory authorities.
Finally, we do not just have a credit crunch and a mortgage meltdown,
we also have a continuing and persistent affordable housing crisis in
this country. The irony is, we had an affordable housing crisis when
prices were going up because people were being squeezed out of rental
properties. Rents were going up. People were being squeezed because
there was a real demand for upscale housing and not the same kind of
demand in the private market for affordable housing.
As the housing market declines, people are also squeezed. People lost
their homes and are moving into apartments. The activity to build and
develop affordable housing has not picked up at all. So we have the
situation where we also have to deal with affordable rental housing in
particular. In the wake of the foreclosure crisis, all of these factors
are compounding the plight of Americans across the board. Homeowners
are losing their homes, low-income Americans are struggling to find
properties to rent, and homeowners have seen the value of their housing
investment--which represented their plans for the future and the future
of their children--all being radically rewritten as we speak because of
a decline in the price of houses. We have seen for the first time a
reversal in what had been a positive trend in home ownership. That is
now declining.

So I think we are working hard to try to respond to all these issues.
How do we inhibit, prevent, as much as we can, this drumbeat of
foreclosures? How do we provide support for families who are looking
for affordable housing? How do we do it in a conscientious way and also
strengthen the regulatory structure that governs Fannie Mae and Freddie
Mac? I think we have achieved that in this legislation, and now the
time is to move forward. That is why I am encouraging all of my
colleagues to support the Housing and Economic Recovery Act of 2008.
This bill includes the Federal Housing Finance Regulatory Reform Act,
which will allow us to create a world-class regulator for Fannie Mae
and Freddie Mac and the Federal Home Loan Banks, the housing
government-sponsored enterprises. This regulator will have broad, new
authorities to ensure the safe and sound operations of all these
institutions. These powers will include establishing capital standards,
setting prudential management standards, enforcing orders through
cease-and-desist authority, civil monetary penalties and also the
authority to remove officers and directors, restricting asset growth
and capital distribution for those institutions which are
undercapitalized. It can place a regulated entity into receivership,
and it can review and approve new product offers. All of these are the
powers which we have extended historically to bank regulators, and now
these powers are being extended to the regulator of three of the most
prominent financial institutions in the country, although their focus
is on housing exclusively, or generally.
This legislation expands the number of families Freddie Mac and
Fannie Mae can serve by raising the loan limits in high-cost areas to
150 percent of the conforming loan limit. It also significantly
enhances the housing component of the GSEs' mission.
It includes provisions I authored that will dramatically expand
Fannie Mae's and Freddie Mac's affordable housing mission by creating a
new housing trust fund and capital magnet fund, financed by annual
contributions from the enterprises, which will be used for the
construction and rehabilitation of affordable rental housing. We expect
these programs to eventually provide between $500 million to $1 billion
per year for the development of housing for low-income families. These
affordable housing contributions are obtained by requiring Fannie Mae
and Freddie Mac to set aside less than half a cent on each dollar of
unpaid principal balance of the enterprises' total new business
purchases. Eventually, 75 percent of the funds collected will be used
for the affordable housing trust fund and 25 percent will be allocated
for the payment of Government bonds to keep the bill deficit neutral.
I was very pleased to have worked out a compromise with all my
colleagues, particularly Senators Dodd and Shelby, that would allow the
HOPE for Homeowners Program--the

[[Page S6113]]

program Senator Dodd has taken the lead in crafting which will resolve
or attempt to resolve some of these foreclosure difficulties--to be a
mandatory program that is deficit neutral and would not require any
payments from the Federal taxpayers because it would use the proceeds
from the Federal housing fund in the first 2 years to pay for this
foreclosure program. I think this program is a great way to accomplish
many of the objectives we have. First, we do want to help people facing
foreclosure, but we also do not want to necessarily engage taxpayer
funds in that process. This arrangement accomplishes those two
objectives.
As many of my colleagues know, I introduced a bill in November to
improve the mission of the GSEs that would, in fact, allocate all the
money to affordable housing. The bill before us would help this
affordable housing mission, but it would also allow, as I have said,
for the first 2 years, to allocate some of the resources to Senator
Dodd's proposal to prevent and assist in the foreclosure process.
Once we have the foreclosure program up and running, then, after 2
years, the resources will be devoted to affordable housing, with 65
percent being used to create a permanent housing trust fund. The
housing trust fund will be managed by the Secretary of Housing and
Urban Development, and it would distribute these funds to States via a
formula. At least 75 percent of the funds distributed to the States
must be targeted to extremely low-income families.
Thirty-five percent of the affordable housing funds will be allocated
to a capital magnet fund and will be used by the Secretary of the
Treasury to run a competitive grant program to attract private capital
for and increase investment in affordable housing. Applicants for
funding will need to show they can leverage the funding by at least 10
to 1. We believe this will result in the creation of many more units of
affordable housing than could be done otherwise. What we are requiring
these applicants to do is to enlist private capital in a ratio of at
least 10 to 1 to match the public capital and increase significantly
the scope of these programs and to house many more Americans. I think
this is a great way to incentivize and challenge private capital to
come into the field of affordable housing and to put more Americans in
decent, affordable rental housing.
The mission improvement section of the bill also strengthens Fannie
Mae's and Freddie Mac's affordable housing goals. In particular, it
would align their goals regarding the purchase of affordable mortgages
with current Community Reinvestment Act income targeting definitions
and ensure that these enterprises provide liquidity to both ownership
and rental housing markets for low- and very low-income families. We
want to make sure we target these resources to those Americans
particularly struggling in a very difficult economy--low- and very low-
income Americans.
The legislation requires the enterprises to serve a variety of
underserved markets, such as rural areas, manufactured housing, and
affordable housing preservation. It improves reporting requirements for
affordable housing activities, including expansion of a public-use
database, and strengthens the new regulator's ability to enforce
compliance with these housing goals.
All of these affordable housing provisions are premised on the fact
that with Fannie and Freddie's Government benefits come many important
responsibilities to the public.
As I mentioned earlier, this legislation also contains a bill
authorized by Senator Dodd called the HOPE for Homeowners Act. I wish
to commend him for his hard work in crafting these provisions and also
commend him for the judicious way he has managed this legislation.
In the last several weeks, this legislation has called for very
critical judgments about procedures and timing and substance. On every
one of those occasions, Senator Dodd, working closely with Senator
Shelby, has made some remarkable, wise, and judicious judgments, and I
commend him for that--both of them, and for their stewardship of this
legislation.
Now, this legislation Senator Dodd is proposing, the HOPE for
Homeowners Act, would create a new temporary, voluntary program within
the Federal Housing Administration to back FHA-insured mortgages to
distressed borrowers. The program is vitally important and could not
come at a more important time.
Two weeks ago, the OCC--the Office of the Comptroller of the
Currency--put out a report documenting the scope of the failure of the
Bush administration's efforts to stem the mortgage crisis. The
administration has been relying on a voluntary industry effort called
HOPE Now. HOPE Now has been reporting that it has produced in excess of
1 million loan modifications through this program. They have had events
to tout it in the public and the press. They always mention this
number.
The credibility of the HOPE Now numbers has been under attack for a
while, primarily because they are self-reported numbers and because
HOPE Now includes in its numbers ``payment plans,'' which are not loan
modifications but only delay troubled home borrowers. Apparently, the
regulators themselves have begun to feel a little uncomfortable, and
the OCC decided to do its own report with its own numbers. They
reported that voluntary mortgage industry efforts have resulted in only
52,000 loan modifications out of 3 million seriously delinquent loans.

In addition to the 3 million seriously delinquent loans--loans over
60 days or in bankruptcy or foreclosure--there are also 1.5 million
foreclosures in process, and new foreclosures initiated during the same
period total almost 300,000. In effect, foreclosures are running six
times ahead of loan-modification efforts. Looking at it another way,
loan modifications are less than 2 percent of seriously delinquent
loans and only about 3 percent of foreclosures.
It is clear that the administration's argument that no new action is
needed has been proven wrong. The OCC data also clearly demonstrates
that helping mitigate the effects of this mortgage mess cannot be left
completely up to the mortgage industry and voluntary efforts. ``Fuzzy
math'' and a lack of transparency are what got us into this mess. It
should not be used to try to cover up the fact that there is still a
major problem.
That is why Senator Dodd's HOPE for Homeowners Program is so
important. It is going to enable approximately 400,000 homeowners to
refinance into 30-year fixed mortgage products with FHA mortgage
insurance. Many of these homeowners have no other financing option
since their homes are now worth less than their mortgage. They are
``underwater.''
Any lender who participates in the HOPE Program Senator Dodd is
advancing will have to write down the value of the mortgage to 90
percent of the current appraised value of the home. They will write off
the loss, and then the new loan for the homeowner will have to be for
30 years at a fixed rate and with FHA mortgage insurance. In exchange
for getting a new loan with built-in equity, homeowners will have to
share future appreciation equally with the FHA.
The intent of the legislation is to set a floor on lender losses
while at the same time putting families into 30-year fixed rate
mortgages that will allow them to keep their homes. This legislation,
we hope, will help stabilize the housing markets in parts of the
country that need the help the most.
In addition, most of the provisions from the Foreclosure Prevention
Act of 2008 that passed the Senate by a vote of 88 to 8 on April 10 are
included in this legislation. This section of the bill contains the
Banking Committee's legislation to modernize, streamline, and expand
the reach of the FHA mortgage insurance program.
The FHA modernization section includes provisions I authored that
would expand access to home ownership counseling, provide for
technology and staffing improvements at FHA, and update the FHA Home
Equity Conversion Mortgage--HECM--Program, allowing seniors to safely
tap into the equity of their home for other necessary expenses.
The FHA loan limit is increased from 95 percent to 110 percent of
area median home price, with a cap at 150 percent of the GSE limit in
high-cost areas, which currently will be $625,000. This should allow
families in older areas of the country to access home

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ownership through FHA. It also requires a downpayment of at least 3.5
percent for any FHA loan.
In addition, the Foreclosure Prevention Act section of the bill
provides $3.92 billion in funding to communities hardest hit by
foreclosure and delinquencies to purchase foreclosed homes at a
discount and rehabilitate or redevelop the homes to stabilize
neighborhoods and stem the significant losses in house values of
neighboring homes. It also contains $150 million in additional funding
for housing counseling.
It contains some important provisions to help our returning soldiers
avoid foreclosure by lengthening the time a lender must wait before
starting the foreclosure process and providing the veterans--soldiers,
sailors, marines, airmen of the current conflict--with 1 year of relief
from increases in mortgage interest rates. In addition, the Department
of Defense is required to establish a counseling program to ensure
these veterans can access assistance if facing financial difficulties.
The legislation also increases the VA loan guarantee amount, so that
veterans have additional home ownership opportunity.
I am also pleased that the bill contains a provision I authored in my
bill, S. 2153, to amend the Truth in Lending Act to improve home loan
disclosures. This provision will ensure that consumers are provided
with timely and meaningful disclosures in connection with not just home
purchases but also for loans that refinance a home or provide a home
equity line of credit. The bill requires that mortgage disclosures be
provided within 3 days of application and no later than 7 days prior to
closing. This should allow borrowers to shop for another mortgage if
they are not satisfied with the terms. If the terms of the loan change,
the consumer must be notified 3 days before closing of the changed
terms.
If consumers apply for adjustable rate or variable rate payment
loans, there will now be an explicit warning on the 1-page Truth in
Lending Act form that the payments will change depending on the
interest rate and an estimate of how those payments will change under
the terms of the contract based on the current interest rate. The bill
also provides a new disclosure that informs borrowers of the maximum
monthly payments possible under their loan. The bill provides the right
to waive the early disclosure requirements if the consumer has a bona
fide financial emergency that requires they close the loan quickly and
increases the range of statutory damages for TILA violations from the
current $200 to $2,000 to a range of $400 to $4,000.

Finally, it requires lenders to include a statement that the consumer
is not obligated on the mortgage loan just because they received the
disclosures. This will give consumers the opportunity to truly shop
around for the best mortgage terms for the first time ever. They will
be able to compare the payments and costs associated with a certain
loan product and decide not to sign on the dotted line if they do not
like the basic terms of the loan.
I believe that giving consumers the information they need regarding
the maximum payment is absolutely critical. Borrowers need to better
understand the full financial impact of entering into a particular loan
early in the process and before they actually consummate the loan.
There are many borrowers today who signed up for a loan with teaser
rates with a monthly payment they could well afford and then were
shocked 18 months later to get the adjusted rates that were staggering
to them and were, for many, unaffordable. Many in good faith relied on
what they thought would be the initial introductory loan. I do not
think they should be in that position. I think all the details, the
maximum loan amount under the current rate should be available upfront,
not hidden in a pile, literally a foot high, of closing documents.
They also have to have a chance to back out of the loan, if the terms
are not acceptable to them, before closing the loan at the conference
room table.
I am pleased my Republican colleagues have agreed with the need to
improve mortgage disclosures also.
Finally, this legislation includes some important tax provisions that
should enhance and strengthen the low-income housing tax credit program
and the mortgage revenue bond program. It also has a refundable first-
time home buyer credit of up to $8,000 to help reduce the stock of
existing unoccupied housing and a nonitemizer tax deduction for State
and local property taxes from Federal income tax.
It is my hope this legislation will help more families to refinance
out of bad loans, help stabilize the housing market, and improve the
laws and regulations so this type of foreclosure crisis never happens
again.
As a member of the Banking Committee, I wish to particularly thank
Chairman Dodd and Senator Shelby for including a number of bills and
initiatives that I have been working on in the Housing and Economic
Recovery Act that is before us today, and I hope we are going to be
able to pass this important legislation in very short order.
The American people need a lot more than the current HOPE Now
program, they need help now. I encourage all my colleagues, we should
move forward deliberately--today, I hope--on this important legislation
and send it to our colleagues in the House.
I know Chairman Frank and his colleagues have done a remarkable job
on their side to pass legislation that is very close to ours. Together,
we should be able to send something to the President that he will, I
hope, sign and will send a message to the American people that hope is
not just a fiction of rhetoric, but it is a reality--and not just hope,
but help is on the way.
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. CRAPO. Mr. President, I ask unanimous consent the order for the
quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEAHY. That was going to be my first unanimous consent request.
My second one would be I ask consent that I be recognized following the
remarks of the distinguished Senator from Idaho.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Idaho is recognized.
Mr. CRAPO. Mr. President, I ask unanimous consent to speak for 10
minutes as in morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.

County Payments Act

Mr. CRAPO. Mr. President, I rise to discuss the increasingly dire
need to reauthorize the Secure Rural Schools and Community Self-
Determination Act of 2000. It is commonly called the County Payments
Act. We also need to fully fund the payment in lieu of taxes
provisions, otherwise commonly called PILT funding.
One hundred years ago, legislation was enacted to provide for the
return of a percentage of the U.S. Forest Service gross receipts to the
States to assist counties that are home to our national forests with
school and road services. The reason for this legislation was that
these States, where there are very high percentages of Federal
ownership of property, have a much smaller property tax base for their
communities. Particularly, many of these rural communities exist in
counties where most of the county--in some counties in Idaho over 90
percent of the county--is owned by the Federal Government. They have
virtually no property base. Yet they have all the other issues that
come with the land base to deal with in their counties--schools, roads,
law enforcement, and the like. It was recognized that since the Federal
Government was immune from paying property taxes, the Federal
Government--which was the beneficiary from these counties and which had
such significant land holdings in these counties--should provide some
kind of compensation to the counties as an alternative to property
taxes, which they would pay if they were not the Federal Government and
exempt from paying those taxes. That is where you get the payment in
lieu of taxes, or PILT payment. The Secure Rural Schools and County
Self-Determination Act was something that followed up on the PILT
legislation. Without these funds, many rural communities that neighbor
national forests would be unable to fully meet school and road needs of
local communities. In recent years, however, timber receipts have
eroded

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to the point where the Federal obligation to local rural communities is
not met through these receipts alone.
To compensate for the shortfall and to prevent the loss of essential
county schools and roads infrastructure, Congress enacted the Secure
Rural Schools and Community Self-Determination Act. This law has
provided assistance to communities whose regular Forest Service and
Bureau of Land Management receipt-sharing payments have declined
significantly. Unfortunately, it expired at the end of 2006. While
funding to continue the program for 2007 was thankfully included in
last year's emergency supplemental, this funding has run out.
I stood on the floor of this Senate almost 5 months ago asking my
colleagues to make this overdue extension and funding a top priority or
Congress. However, this extension has still not been achieved, and
counties and school districts that were facing job losses 5 months ago
are in an increasingly more difficult situation. People are losing
their jobs and families across the Nation are being impacted. The
education of children across this Nation is being affected. This is
unacceptable.
In April, I joined a bipartisan group of Senators who sent a letter
to the Senate Appropriations Committee seeking the inclusion of an
extension and funding for the Secure Rural Schools and Self-
Determination Act of 2000 in the Fiscal Year 2008 Emergency
Supplemental Appropriations Act. The Emergency Supplemental that was
passed by the Senate last month contained $400 million to continue
county payments for another year. This funding would ensure the
continued assistance for rural communities struggling to provide
necessary services in areas with large amounts Federal land. This
bridge funding is essential to ensure the continuation of needed school
services in rural communities throughout the country while work
continues on a longer term extension. I understand that unfortunately
this funding was stripped out of the supplemental in negotiations
between the House and the administration.
I remind this body that a multiple year extension and funding for
county payments and PILT has the overwhelming support of a bipartisan
majority of the Senate. In fact, 74 Senators voted in favor of an
amendment to provide a mu1ti-year extension and funding in last year's
emergency supplemental appropriations bill. However, as previously
mentioned, this extension was pared back to one-year funding in the
version that came out of conference and was enacted into law. Now,
there is no funding and far less time.
What does a failure to extend the Secure Rural Schools and Community
Self-Determination Act mean? It means the loss of more than 20,000
county and school employee jobs across the Nation. It means nearly
7,000 teachers and educational staff are estimated to lose their jobs.
More than 100 teaching positions in Idaho alone will likely be
affected. It means that 600 counties and more than 4,000 school
districts in 42 States will not have the funds to fully provide needed
services. It means incredible uncertainty to rural communities,
counties, and families across the Nation during these difficult
economic times. It means more than 8,000 road miles will not be
maintained in Idaho alone. It means children in rural communities will
have decreased access to quality education.
To help visualize the impact on rural communities of a failure to
extend the program, I want to share some Idaho examples that were
shared with me from my constituents: Shoshone County, ID, with a
population of 15,000, expects 15 school instructional staff and as much
as 55 percent of the county's road department employees to be affected.
In Boise County, with a population of close to 7,000, the Road and
Bridge Department will have to lay off the majority of its employees--
one half to three-fourths of the employees--within 1 year and only
perform those activities that are necessary to public safety.
Clearwater County, with a population of approximately 8,000, faces the
loss of more than $500,000, which will greatly impact public safety
because of lost services for road maintenance and law enforcement. I am
told that Boundary County, with a population of 11,000, will not be
able to blacktop roads and will have to let them deteriorate to gravel-
based roads. We simply cannot allow this to occur in any State in this
Nation.
Congress needs to demonstrate it is serious about getting this done.
Families in rural communities across this Nation deserve no less. It is
shameful that Congress may be recessing once again and Members will be
heading home to their home States without passing an extension. The
word disappointing is an understatement. This puts services in rural
communities across this Nation in jeopardy, and it is simply wrong. We
all need to work together to make this more of a priority. Over the
years, this has been a bipartisan effort, and that simply must
continue. This takes the commitment of all of us, including
administration, House and Senate leadership to get this done.
I understand that other domestic spending has been included in the
supplemental. I won't for a second diminish the need for those funds,
but I must point out that county payments are vitally important and
deserve to be included in the supplemental as well. I will continue to
work with my colleagues to press for the inclusion of county payment
funds. In December, Senators Craig, Smith, Murkowski, McCaskill, Dole,
Stevens and Bennett joined me in urging the Senate leadership to attach
a reauthorization of county payments and PILT funding to any
legislative vehicles expected to be enacted before Congress concluded
work for the year.
I continue to believe, as I did then, that we must pursue every
opportunity to achieve enactment and attach an extension to every
moving legislative vehicle. The counties of the United States which
host our Federal properties are not allowed by Federal law to impose
property tax on them for the services that those properties require.
This legislation honorably and fairly has met these responsibilities
over the years until the last few years when Congress has struggled so
hard to find its way through to extension and funding of these
important needs.
I encourage my colleagues to act quickly, to act now, and to assure
that we give the necessary priority to this county funding to get us
past this crisis.
I yield the floor.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. Mr. President, we have received a request that the
distinguished senior Senator from Missouri, Mr. Bond, wishes to be
recognized upon the conclusion of my remarks.
I ask unanimous consent that Senator Bond be recognized upon the
conclusion of my remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.

FISA

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

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

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

[[Page S6117]]

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

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

[[Page S6118]]

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

[[Page S6119]]

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

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

[[Page S6120]]

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

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

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

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

[[Page S6121]]

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

[[Page S6122]]

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

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

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

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

[[Page S6124]]

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

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

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

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

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

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

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

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

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

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

[[Page S6126]]

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

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

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

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

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

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

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

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

[[Page S6127]]

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

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

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

H.R. 6304, FISA AMENDMENTS ACT OF 2008

Section-by-Section Analysis and Explanation

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

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

Overall Organization of Act

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

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

Title I. Foreign Intelligence Surveillance

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

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

[[Page S6132]]

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

[[Page S6133]]

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

Overview of Sections 104 through Section 109. FISA Streamlining

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

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

Title II. Protections for Electronic Communication Service Providers

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

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

Title III. Review of Previous Actions

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

Title IV. Other Provisions

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

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

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

[[Page S6137]]

I thank the Presiding Officer and yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. DODD. Madam President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. DODD. Madam President, I see my good friend from West Virginia on
the floor. While I have some disagreement with him on the effort he has
made on the FISA bill, I commend my friend from West Virginia. He has
the thankless task of heading up the Intelligence Committee, which is a
difficult job. I wish to acknowledge that and recognize that. My
respect for him and the work he is doing and trying to do on this issue
is something I respect immensely. Unfortunately, we don't agree on one
aspect--at least one aspect--of this bill, but that in no way
diminishes my respect for the effort he has made to try to produce as
good a bill as he can under the circumstances. You only have to try and
manage a bill around here to understand how difficult that can be, as
someone who is engaged right now in this housing proposal.
Senator Shelby and I have spent weeks putting together a bill that
has enjoyed almost unanimous support in our committee--19 to 2--coming
out of the Banking Committee. We had the vote of 83 to 9 the other day
on a cloture motion to deal with a proposal we put together covering
everything from mortgage revenue bonds and tax incentives for people to
buy foreclosed properties, not to mention the GSE--the government
sponsored enterprises--reform, an affordable housing program in
perpetuity to assist rental housing opportunities in the Nation, as
well as the HOPE for Homeowners Act to deal with the foreclosure
crisis. Here we are now approaching the late afternoon of Wednesday. We
had the cloture vote yesterday morning, about 30 hours ago. We have yet
to have one amendment I can deal with because one Senator is insisting
that his bill be paramount, that we disregard the efforts we have made
to listen to ideas, to take additional suggestions that have come from
other Members to incorporate as part of this bill.
Senator Kohl of Wisconsin has a very good proposal which we have
worked out. Senator Sununu has made a proposal as well and we have been
able to modify it and work with him to be a part of it. Senator Isakson
has made a proposal we are working on to deal with a date in this bill
that could make a difference. Senator Bond has a proposal we are
working on dealing with disclosures. Senator Kohl and Senator Nelson
are working on a proposal dealing with 401(k)s. All of these ideas have
to be held in abeyance because one Senator won't even let us consider
these matters on the floor, to bring them up and to deal with them.
It is awfully difficult to understand, when you consider that between
8,000 and 9,000 people every day are filing for foreclosure in this
country. This is the center of our economic problems in the Nation.
The Wall Street Journal reported today in a banner headline that
consumer confidence in this Nation is at the lowest point it has been
since the late 1980s, early 1990s. A report yesterday actually takes it
back to 1967. We are also told that home values are declining by the
hour in this country. The Case-Schiller Index indicates that home
values may decline by as much as 30 percent over the next 2 or 3 years.
This is affecting student loans, it is affecting municipal finance, and
it is affecting commercial borrowing. We are literally in a stall with
the economy growing worse and the level of optimism and confidence of
the American people declining at a rapid rate.
There is nothing more important we could do before adjourning for the
next week to go home for Independence Day than to deal with this bill.
We could literally complete this housing bill in about an hour. That is
about all it would take to consider the amendments we can agree to, to
adopt the ones we have, and then move this bill off this floor, out of
this Chamber to the point that I think the House may accept what we
have done, and send the bill to the President for his signature.
What better message to send to those who are facing potential
foreclosure, of losing their most important and valuable asset that the
overwhelming majority of Americans will ever have, not just in
financial terms, but in the context of having a home for their
families. This is something most Americans wish for their children,
wish for their grandchildren, wish to have themselves, that idea of a
home where you grow up and live. The fact that between 8,000 and 9,000
people--not on a weekly basis, not on a monthly basis, but every single
day--every day we are home next week, every day we are gone from here,
remind yourselves that another 9,000 people are beginning to file
foreclosure and losing their homes. Neighborhoods collapse, values in
these neighborhoods go down, and we see the continued suffering that
goes on in our country, all because I can't even bring up and allow
consideration of some amendments on this bill.
We have been at this now since January, trying to put this together
and here we are in late June and still unable to get even consideration
of amendments or to vote on some we may disagree with. There are many
others of our colleagues here who have some ideas. I failed to mention
Senator Voinovich. We have proposals from Senator Levin and Senator
Stabenow involving important projects in their State, not to mention
Massachusetts as well. There are a number of other things included in
this legislation providing the kind of support for those who are out
there, including counseling to people going through foreclosure or who
could go through foreclosure. All of these elements could make a
difference; the community development block grants to mayors, county
supervisors, and Governors that could provide some targeted help in
neighborhoods that have foreclosed properties.
We learn from screaming headlines on a daily basis--you need not hear
my voice; just listen to what is going on in almost every State in the
country. Now the States of California and Nevada are particularly hard-
pressed, as well as Arizona, Florida, Michigan, and Ohio are seeing
these numbers at record levels. The State of Nevada, in fact, I think,
on a per capita basis has the worst foreclosure rate in the country,
what that State is going through and the people are suffering from in
that jurisdiction, with 10, I am told, centers around the State trying
to help people hang on to their homes if they can.
Here we have a proposal that would provide that kind of relief, a
system that would allow for workouts where people could have a new
mortgage they could afford to pay, as well as paying into the program
at some cost, and the lenders taking, of course, a significant cut in
what they would otherwise be getting. But it would allow us to keep
people in their homes.
So in those States that are feeling this particularly, I want them to
know there are those of us here--and they ought to know the majority
leader of this body, Senator Harry Reid, has been on the forefront of
trying to get this bill up, trying to allow us to vote on it to get the
job done. I wish to thank him for that, as the chairman of the Banking
Committee, to have a majority leader who understands this priority is
at the top of our list. I am deeply grateful to him for making it
possible for us to get as far as we have.
But to know we are down here with a few remaining hours before we
will be leaving for a week or 10 days; knowing that in that period of
time, unnecessarily, in my view, more Americans may end up paying that
awful price, watching their home value decline, watching them possibly
lose their homes; that idea of being able to build that equity and
provide for your children's education, to contribute to your
retirement, to deal with an unexpected illness in the family where that
equity could make a difference, all of that is eroding because we can't
get off the dime because we have a colleague who wants to insist that
his proposal be paramount, that we drop everything else and deal with
that bill. I say that respectfully. I have been here 27 years and this
happens periodically. But at this moment, at this time, facing the
worst crisis in housing since the Great Depression, this is not the
kind of reaction we ought to be getting.
I am going to come here periodically as long as we are here to talk
about this. I will make unanimous consent requests, or the leader will,
to try and

[[Page S6138]]

let us move on this. When objection is heard, then that Senator ought
to have the courage, in my view, to stand up and express that objection
on why we can't deal with this housing bill. Even if you disagree with
the bill, allow us to vote. Allow your colleagues to offer their
amendments. They need to explain to the American people why it is that
after all of this effort, with an 83-to-9 vote yesterday, that
Democrats and Republicans want to do something about housing, but we
can't get a bill up and can't consider these outstanding amendments.
I apologize to my colleagues for this, but they ought to know what is
going on and why it is. Members have asked me: Why aren't we voting?
Why can't we bring up these matters? The reason is because I need
unanimous consent to do so and one Senator can object, and because they
object, none of these other amendments, Republican or Democratic
amendments, can be considered or modified, even, in this context. So
that is why we are here and where we are. If people are wondering why,
after this long time, despite the efforts of bringing people together,
we are not managing to get this bill done, that is the reason. My hope
is that common sense and reasonableness may prevail in the coming hour
or so that will allow us to get to this. But if we are unable to do so,
then that is the reason.
With that, I yield the floor and note the absence of a quorum.
The PRESIDING OFFICER. (Mr. Nelson of Nebraska). The clerk will call
the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. BOND. Madam President, I ask unanimous consent the order for the
quorum call be rescinded.
The PRESIDING OFFICER (Ms. Stabenow). Without objection, it is so
ordered.
Mr. BOND. Madam President, I am hoping very shortly we will vote on
or act on or somehow pass an amendment that I have offered, offered on
the previous housing bill which, incidentally, I thought was a much
better bill than this one.
I ask unanimous consent to speak for--well, Madam President, I am
going to continue to tell you that.
The teaser rate problem is one which has afflicted many borrowers in
Missouri. They get these offers for loan rates. They are told,
verbally, that they can get a good rate when the time expires. The
problem is, it is not in writing. So we would require full disclosure
in advance, written down. If the people are going to make a
representation, it has to be a binding representation. My amendment is
designed to advise consumers, before they purchase a home, what they
are going to have to pay.
I understand there is a modification that will make this amendment
acceptable to all sides. I think it is terribly important to avoid
putting so many people, in the future, in the trap that they now find
themselves, that we require they disclose what the rates will be, and
if they want to offer good terms, they put them in writing.
I urge my colleagues to support this amendment as modified.
I yield the floor.
The PRESIDING OFFICER. All time postcloture has expired.
Mr. BOND. Madam President, I 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. Madam President, I ask unanimous consent the order for the
quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. REID. I ask unanimous consent the pending amendments be
withdrawn.
The PRESIDING OFFICER. Is there objection? Without objection, it is
so ordered.
The question is on the motion to concur, with an amendment.
Mr. McCONNELL. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The clerk will call the roll.
Mr. REID. Madam President, are we in a quorum call?
The PRESIDING OFFICER. We are not.
Mr. REID. I 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. Madam President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. REID. I ask unanimous consent that the previous order which was
entered regarding the withdrawing of the amendments we vitiated.
The PRESIDING OFFICER. Without objection, it is so ordered.

Amendment No. 4987, As Modified, Amendment No. 4999, As Modified, and
Amendment No. 4988, As Modified

Mr. REID. I ask unanimous consent that the pending amendments No.
4987, Bond; No. 4999, Sununu; and No. 4988, Kohl, be agreed to, as
modified, with the changes at the desk.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendments, as modified, were agreed to, as follows:

amendment no. 4987, as modified

On page 522, line 2, before the period insert the
following: ``,including the fact that the initial regular
payments are for a specific time period that will end on a
certain date, that payments will adjust afterwards
potentially to a higher amount, and that there is no
guarantee that the borrower will be able to refinance to a
lower amount''.

Amendment No. 4999, as modified

On page 538, between lines 6 and 7, insert the following:

TITLE VII--SMALL PUBLIC HOUSING AUTHORITIES PAPERWORK REDUCTION ACT

SEC. 2701. SHORT TITLE.

This title may be cited as the ``Small Public Housing
Authorities Paperwork Reduction Act''.

SEC. 2702. PUBLIC HOUSING AGENCY PLANS FOR CERTAIN QUALIFIED
PUBLIC HOUSING AGENCIES.

(a) In General.--Section 5A(b) of the United States Housing
Act of 1937 (42 U.S.C. 1437c-1(b)) is amended by adding at
the end the following:
``(3) Exemption of certain phas from filing requirement.--
``(A) In general.--Notwithstanding paragraph (1) or any
other provision of this Act--
``(i) the requirement under paragraph (1) shall not apply
to any qualified public housing agency; and
``(ii) except as provided in subsection (e)(4)(B), any
reference in this section or any other provision of law to a
`public housing agency' shall not be considered to refer to
any qualified public housing agency, to the extent such
reference applies to the requirement to submit an annual
public housing agency plan under this subsection.
``(B) Civil rights certification.--Notwithstanding that
qualified public housing agencies are exempt under
subparagraph (A) from the requirement under this section to
prepare and submit an annual public housing plan, each
qualified public housing agency shall, on an annual basis,
make the certification described in paragraph (16) of
subsection (d), except that for purposes of such qualified
public housing agencies, such paragraph shall be applied by
substituting `the public housing program of the agency' for
`the public housing agency plan'.
``(C) Definition.--For purposes of this section, the term
`qualified public housing agency' means a public housing
agency that meets the following requirements:
``(i) The sum of (I) the number of public housing dwelling
units administered by the agency, and (II) the number of
vouchers under section 8(o) of the United States Housing Act
of 1937 (42 U.S.C. 1437f(o)) administered by the agency, is
550 or fewer.
``(ii) The agency is not designated under section 6(j)(2)
as a troubled public housing agency, and does not have a
failing score under the section 8 Management Assessment
Program during the prior 12 months.''.
(b) Resident Participation.--Section 5A of the United
States Housing Act of 1937 (42 U.S.C. 1437c-1) is amended--
(1) in subsection (e), by inserting after paragraph (3) the
following:
``(4) Qualified public housing agencies.--
``(A) In general.--Except as provided in subparagraph (B),
nothing in this section may be construed to exempt a
qualified public housing agency from the requirement under
paragraph (1) to establish 1 or more resident advisory
boards. Notwithstanding that qualified public housing
agencies are exempt under subsection (b)(3)(A) from the
requirement under this section to prepare and submit an
annual public housing plan, each qualified public housing
agency shall consult with, and consider the recommendations
of the resident advisory boards for the agency, at the annual
public hearing required under subsection (f)(5), regarding
any changes to the goals, objectives, and policies of that
agency.
``(B) Applicability of waiver authority.--Paragraph (3)
shall apply to qualified public housing agencies, except that
for purposes of such qualified public housing agencies,
subparagraph (B) of such paragraph shall be applied by
substituting `the functions described in the second sentence
of

[[Page S6139]]

paragraph (4)(A)' for `the functions described in paragraph
(2)'.
``(f) Public Hearings.--''; and
(2) in subsection (f) (as so designated by the amendment
made by paragraph (1)), by adding at the end the following:
``(5) Qualified public housing agencies.--
``(A) Requirement.--Notwithstanding that qualified public
housing agencies are exempt under subsection (b)(3)(A) from
the requirement under this section to conduct a public
hearing regarding the annual public housing plan of the
agency, each qualified public housing agency shall annually
conduct a public hearing--
``(i) to discuss any changes to the goals, objectives, and
policies of the agency; and
``(ii) to invite public comment regarding such changes.
``(B) Availability of information and notice.--Not later
than 45 days before the date of any hearing described in
subparagraph (A), a qualified public housing agency shall--
``(i) make all information relevant to the hearing and any
determinations of the agency regarding changes to the goals,
objectives, and policies of the agency to be considered at
the hearing available for inspection by the public at the
principal office of the public housing agency during normal
business hours; and
``(ii) publish a notice informing the public that--

``(I) the information is available as required under clause
(i); and
``(II) a public hearing under subparagraph (A) will be
conducted.''.

Amendment No. 4988, as modified

On page 538, between lines 6 and 7, insert the following:

TITLE VIII--FORECLOSURE RESCUE FRAUD PROTECTION

SEC. 2801. SHORT TITLE.

This title may be cited as the ``Foreclosure Rescue Fraud
Act of 2008''.

SEC. 2802. DEFINITIONS.

In this title:
(1) Commission.--The term ``Commission'' means the Federal
Trade Commission.
(2) Foreclosure consultant.--The term ``foreclosure
consultant''--
(A) means a person who makes any solicitation,
representation, or offer to a homeowner facing foreclosure on
residential real property to perform, for gain, or who
performs, for gain, any service that such person represents
will prevent, postpone, or reverse the effect of such
foreclosure; and
(B) does not include--
(i) an attorney licensed to practice law in the State in
which the property is located who has established an
attorney-client relationship with the homeowner;
(ii) a person licensed as a real estate broker or
salesperson in the State where the property is located, and
such person engages in acts permitted under the licensure
laws of such State;
(iii) a housing counseling agency approved by the
Secretary;
(iv) a depository institution (as defined in section 3 of
the Federal Deposit Insurance Act (12 U.S.C. 1813));
(v) a Federal credit union or a State credit union (as
defined in section 101 of the Federal Credit Union Act (12
U.S.C. 1752)); or
(vi) an insurance company organized under the laws of any
State.
(3) Homeowner.--The term ``homeowner'', with respect to
residential real property for which an action to foreclose on
the mortgage or deed of trust on such real property is filed,
means the person holding record title to such property as of
the date on which such action is filed.
(4) Loan servicer.--The term ``loan servicer'' has the same
meaning as the term ``servicer'' in section 6(i)(2) of the
Real Estate Settlement Procedures Act of 1974 (12 U.S.C.
2605(i)(2)).
(5) Residential mortgage loan.--The term ``residential
mortgage loan'' means any loan primarily for personal,
family, or household use that is secured by a mortgage, deed
of trust, or other equivalent consensual security interest on
a dwelling (as defined in section 103(v) of the Truth in
Lending Act (15 U.S.C. 1602)(v)) or residential real estate
upon which is constructed or intended to be constructed a
dwelling (as so defined).
(6) Residential real property.--The term ``residential real
property'' has the meaning given the term ``dwelling'' in
section 103 of the Consumer Credit Protection Act (15 U.S.C.
1602).
(7) Secretary.--The term ``Secretary'' means the Secretary
of Housing and Urban Development.

SEC. 2803. MORTGAGE RESCUE FRAUD PROTECTION.

(a) Limits on Foreclosure Consultants.--A foreclosure
consultant may not--
(1) claim, demand, charge, collect, or receive any
compensation from a homeowner for services performed by such
foreclosure consultant with respect to residential real
property until such foreclosure consultant has fully
performed each service that such foreclosure consultant
contracted to perform or represented would be performed with
respect to such residential real property;
(2) hold any power of attorney from any homeowner, except
to inspect documents, as provided by applicable law;
(3) receive any consideration from a third party in
connection with services rendered to a homeowner by such
third party with respect to the foreclosure of residential
real property, unless such consideration is fully disclosed,
in a clear and conspicuous manner, to such homeowner in
writing before such services are rendered;
(4) accept any wage assignment, any lien of any type on
real or personal property, or other security to secure the
payment of compensation with respect to services provided by
such foreclosure consultant in connection with the
foreclosure of residential real property; or
(5) acquire any interest, directly or indirectly, in the
residence of a homeowner with whom the foreclosure consultant
has contracted.
(b) Contract Requirements.--
(1) Written contract required.--Notwithstanding any other
provision of law, a foreclosure consultant may not provide to
a homeowner a service related to the foreclosure of
residential real property--
(A) unless--
(i) a written contract for the purchase of such service has
been signed and dated by the homeowner; and
(ii) such contract complies with the requirements described
in paragraph (2); and
(B) before the end of the 3-business-day period beginning
on the date on which the contract is signed.
(2) Terms and conditions of contract.--The requirements
described in this paragraph, with respect to a contract, are
as follows:
(A) The contract includes, in writing--
(i) a full and detailed description of the exact nature of
the contract and the total amount and terms of compensation;
(ii) the name, physical address, phone number, email
address, and facsimile number, if any, of the foreclosure
consultant to whom a notice of cancellation can be mailed or
sent under subsection (d); and
(iii) a conspicuous statement in at least 12 point bold
face type in immediate proximity to the space reserved for
the homeowner's signature on the contract that reads as
follows: ``You may cancel this contract without penalty or
obligation at any time before midnight of the 3rd business
day after the date on which you sign the contract. See the
attached notice of cancellation form for an explanation of
this right.''.
(B) The contract is written in the principal language used
to solicit or market the services to the homeowner.
(C) The contract is accompanied by the form required by
subsection (c)(2).
(c) Right To Cancel Contract.--
(1) In general.--With respect to a contract between a
homeowner and a foreclosure consultant regarding the
foreclosure on the residential real property of such
homeowner, such homeowner may cancel such contract without
penalty or obligation by mailing a notice of cancellation not
later than midnight of the 3rd business day after the date on
which such contract is executed or would become enforceable
against the parties to such contract.
(2) Cancellation form and other information.--Each contract
described in paragraph (1) shall be accompanied by a form, in
duplicate, that--
(A) has the heading ``Notice of Cancellation'' in boldface
type; and
(B) contains in boldface type the following statement:
``You may cancel this contract, without any penalty or
obligation, at any time before midnight of the 3rd day after
the date on which the contract is signed by you.
``To cancel this contract, mail or deliver a signed and
dated copy of this cancellation notice or any other
equivalent written notice to [insert name of foreclosure
consultant] at [insert address of foreclosure consultant]
before midnight on [insert date].
``I hereby cancel this transaction on [insert date] [insert
homeowner signature].''.
(d) Waiver of Rights and Protections Prohibited.--
(1) In general.--A waiver by a homeowner of any protection
provided by this section or any right of a homeowner under
this section--
(A) shall be treated as void; and
(B) may not be enforced by any Federal or State court or by
any person.
(2) Attempt to obtain a waiver.--Any attempt by any person
to obtain a waiver from any homeowner of any protection
provided by this section or any right of the homeowner under
this section shall be treated as a violation of this section.
(3) Contracts not in compliance.--Any contract that does
not comply with the applicable provisions of this title shall
be void and may not be enforceable by any party.

SEC. 2804. WARNINGS TO HOMEOWNERS OF FORECLOSURE RESCUE
SCAMS.

(a) In General.--If a loan servicer finds that a homeowner
has failed to make 2 consecutive payments on a residential
mortgage loan and such loan is at risk of being foreclosed
upon, the loan servicer shall notify such homeowner of the
dangers of fraudulent activities associated with foreclosure.
(b) Notice Requirements.--Each notice provided under
subsection (a) shall--
(1) be in writing;
(2) be included with a mailing of account information;
(3) have the heading ``Notice Required by Federal Law'' in
a 14-point boldface type in English and Spanish at the top of
such notice; and
(4) contain the following statement in English and Spanish:
``Mortgage foreclosure is a complex process. Some people may
approach you about saving your home. You should be careful
about any such promises. There are government and nonprofit
agencies you may contact for helpful information about the
foreclosure process. Contact your

[[Page S6140]]

lender immediately at [____], call the Department of Housing
and Urban Development Housing Counseling Line at (800) 569-
4287 to find a housing counseling agency certified by the
Department to assist you in avoiding foreclosure, or visit
the Department's Tips for Avoiding Foreclosure website at

http://www.hud.gov/foreclosure
for additional assistance.''
(the blank space to be filled in by the loan servicer and
successor telephone numbers and Uniform Resource Locators
(URLs) for the Department of Housing and Urban Development
Housing Counseling Line and Tips for Avoiding Foreclosure
website, respectively).

SEC. 2805. CIVIL LIABILITY.

(a) In General.--Any foreclosure consultant who fails to
comply with any provision of section 2803 or 2804 with
respect to any other person shall be liable to such person in
an amount equal to the greater of--
(1) the amount of any actual damage sustained by such
person as a result of such failure; or
(2) any amount paid by the person to the foreclosure
consultant.
(b) Class Actions Prohibited.--No Federal court may certify
a civil action under subsection (a) as a class action under
rule 23 of the Federal Rules of Civil Procedure.

SEC. 2806. ADMINISTRATIVE ENFORCEMENT.

(a) Enforcement by Federal Trade Commission.--
(1) Unfair or deceptive act or practice.--A violation of a
prohibition described in section 2803 or a failure to comply
with any provision of section 2803 or 2804 shall be treated
as a violation of a rule defining an unfair or deceptive act
or practice described under section 18(a)(1)(B) of the
Federal Trade Commission Act (15 U.S.C. 57a(a)(1)(B)).
(2) Actions by the federal trade commission.--The Federal
Trade Commission shall enforce the provisions of sections
2803 and 2804 in the same manner, by the same means, and with
the same jurisdiction, powers, and duties as though all
applicable terms and provisions of the Federal Trade
Commission Act (15 U.S.C. 41 et seq.) were incorporated into
and made part of this title.
(b) State Action for Violations.--
(1) Authority of states.--In addition to such other
remedies as are provided under State law, whenever the chief
law enforcement officer of a State, or an official or agency
designated by a State, has reason to believe that any person
has violated or is violating the provisions of section 2803
or 2804, the State--
(A) may bring an action to enjoin such violation;
(B) may bring an action on behalf of its residents to
recover damages for which the person is liable to such
residents under section 2805 as a result of the violation;
and
(C) in the case of any successful action under subparagraph
(A) or (B), shall be awarded the costs of the action.
(2) Rights of federal trade commission.--
(A) Notice to commission.--The State shall serve prior
written notice of any civil action under paragraph (1) upon
the Commission and provide the Commission with a copy of its
complaint, except in any case in which such prior notice is
not feasible, in which case the State shall serve such notice
immediately upon instituting such action.
(B) Intervention.--The Commission shall have the right--
(i) to intervene in any action referred to in subparagraph
(A);
(ii) upon so intervening, to be heard on all matters
arising in the action; and
(iii) to file petitions for appeal in such actions.
(3) Investigatory powers.--For purposes of bringing any
action under this subsection, nothing in this subsection
shall prevent the chief law enforcement officer, or an
official or agency designated by a State, from exercising the
powers conferred on the chief law enforcement officer or such
official by the laws of such State to conduct investigations
or to administer oaths or affirmations, or to compel the
attendance of witnesses or the production of documentary and
other evidence.
(4) Limitation.--Whenever the Federal Trade Commission has
instituted a civil action for a violation of section 2803 or
2804, no State may, during the pendency of such action, bring
an action under this section against any defendant named in
the complaint of the Commission for any violation of section
2803 or 2804 that is alleged in that complaint.

SEC. 2807. LIMITATION.

No violation of a prohibition described in section 2803 or
a failure to comply with any provision of section 2803 or
2804 shall provide grounds for the halt, delay, or
modification of a foreclosure process or proceeding.

SEC. 2808. PREEMPTION.

Nothing in this title affects any provision of State or
local law respecting any foreclosure consultant, residential
mortgage loan, or residential real property that provides
equal or greater protection to homeowners than what is
provided under this title.

appraisal standards

Mr. SHELBY. Madam President, I rise to engage Senator Dodd in a
colloquy discussing the amendment offered by Senator Dole concerning
appraisal standards. I would like to acknowledge the distinguished
Senator from North Carolina for her efforts in crafting this amendment.
In December of last year, Attorney General Cuomo of New York, along
with Fannie Mae, Freddie Mac and OFHEO entered into an agreement to
create a mortgage appraiser code of conduct. I applaud the work of the
attorney general of New York for being proactive in trying to come up
with a code of conduct in order to deal with some of the problems in
the mortgage appraisal process.
While the ``code of conduct'' moves things in a positive direction,
Fannie Mae and Freddie Mac are secondary market players, and the
attorney general of New York has authority to deal with the conduct
that touches upon the State of New York. In order to fully address the
issue and create a unified standard affecting all mortgage originators,
there must be a process involving all of the appropriate regulatory
authorities including the Federal banking regulators who participate in
the congressionally authorized Federal Financial Institutions
Examination Counsel, FFIEC, subcommittee on appraisals. This would also
provide regulated institutions with adequate opportunity to participate
in the process.
The National Bank Act authorizes national banks to engage in mortgage
lending, subject to OCC regulation. Since the early 1990s, each of the
Federal banking regulators has had standards in place that deal with
the conduct of mortgage appraisers. These standards were put in place
to address many of the safety and soundness concerns that we are
grappling with today. While I recognize the need to update and
strengthen these standards, I believe that we need to be mindful of
that structure, and rely upon it as part of the effort to reform the
appraisal process.
The appraisal is a key component in ensuring sound underwriting both
for banks and the consumer. I believe that the key concept of appraisal
independence is laudable and although incorporated into Federal banking
regulation, perhaps this construct needs to be strengthened.
Our goal should be to ensure that a standard exists that avoids
inconsistencies, provides stronger consumer protection, and protects
the safety and soundness of lending institutions. I believe that as a
wake-up call to the regulators that their standards must be revamped
and their enforcement stepped up.
Mr. DODD. I thank my colleague and agree with him on several fronts.
The first is that I commend Attorney General Cuomo for his aggressive
pursuit in ferreting out fraudulent appraisal practices. Law
enforcement has said repeatedly that unscrupulous appraisers are the
``enablers'' of mortgage fraud.
Appraisers, seeking new business, are eager to ``hit the number''
needed to make sure a mortgage is approved. If they fail to give the
lenders and brokers the appraisal needed to close the loan, they simply
don't get any more referrals from those lenders. As a result,
appraisers were inflating their estimates of house value, adding to the
frenzy that created the housing bubble.
The guidelines negotiated by Attorney General Cuomo with Fannie and
Freddie, and approved by OFHEO, seek to ensure that this kind of
pressure cannot be brought to bear on appraisers. They are designed to
ensure independence and address the significant evidence of collusion
between lenders and appraisers that Mr. Cuomo uncovered.
I understand there is great concern about the process for the reforms
the attorney general is demanding. I also understand that some people
don't like the new standards which will affect the practices of the
lenders that sell their mortgages to Fannie and Freddie.
As a result, I agree with my colleague that the Federal banking
agencies have a role in this process. These agencies already have
regulations in place that set forth appraisal standards for their
lenders. However, the appraisal fraud over the past couple of years,
and the attorney general's action, should serve as a wake-up call to
the regulators that their standards must be revamped and their
enforcement stepped up.

Amendment No. 4984 Withdrawn

Mr. REID. I ask unanimous consent that the Dole amendment be
withdrawn.
The PRESIDING OFFICER. Without objection, it is so ordered.

[[Page S6141]]

Vote on Motion to Concur

Mr. REID. Madam President, is the matter now the concurrence in the
substitute amendment?
The PRESIDING OFFICER. That is correct. The question is on agreeing
to the motion to concur in the House amendment, with amendment No.
4983, as amended.
The yeas and nays have been previously ordered.
The question is on agreeing to the motion.
The clerk will call the roll.
The legislative clerk called the roll.
Mr. DURBIN. I announce that the Senator from West Virginia (Mr.
Byrd), the Senator from New York (Mrs. Clinton), the Senator from
Massachusetts (Mr. Kennedy), and the Senator from Illinois (Mr. Obama)
are necessarily absent.
Mr. KYL. The following Senator is necessarily absent: the Senator
from Arizona (Mr. McCain).
The PRESIDING OFFICER (Ms. Cantwell). Are there any other Senators in
the Chamber desiring to vote?
The result was announced--yeas 79, nays 16, as follows:

[Rollcall Vote No. 157 Leg.]

YEAS--79

Akaka
Alexander
Allard
Baucus
Bayh
Bennett
Biden
Bingaman
Boxer
Brown
Cantwell
Cardin
Carper
Casey
Cochran
Coleman
Collins
Conrad
Corker
Craig
Dodd
Dole
Domenici
Dorgan
Durbin
Feingold
Feinstein
Graham
Grassley
Gregg
Hagel
Harkin
Hatch
Hutchison
Inouye
Isakson
Johnson
Kerry
Klobuchar
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Lugar
Martinez
McCaskill
McConnell
Menendez
Mikulski
Murkowski
Murray
Nelson (FL)
Nelson (NE)
Pryor
Reed
Reid
Roberts
Rockefeller
Salazar
Sanders
Schumer
Sessions
Shelby
Smith
Snowe
Specter
Stabenow
Stevens
Sununu
Tester
Voinovich
Warner
Webb
Whitehouse
Wicker
Wyden

NAYS--16

Barrasso
Bond
Brownback
Bunning
Burr
Chambliss
Coburn
Cornyn
Crapo
DeMint
Ensign
Enzi
Inhofe
Kyl
Thune
Vitter

NOT VOTING--5

Byrd
Clinton
Kennedy
McCain
Obama
The motion was agreed to.

____________________