A bill entitled "The Protect America Act of 2007".

Mr. President, I thank the distinguished majority leader and the distinguished Presiding Officer.

Mr. President, the Rockefeller-Levin bill before the Senate will provide the Director of National Intelligence, Mike McConnell, the temporary authorities he needs to expand his ability to collect time- sensitive intelligence against foreign targets as the Congress continues to work on a more lasting effort to reform the Foreign Intelligence Surveillance Act, or FISA, after 6 months has passed.

I wish to make this very clear. The Rockefeller-Levin bill is the bill of the Director of National Intelligence, who was appointed by the President to be in charge and make all decisions with respect to this matter. In the statement DNI McConnell put out at 4:39 this evening, he said:

I urge Members of Congress to support the legislation I

provided last evening to modify FISA and equip our

intelligence community with the tools we need to protect our

Nation.

Mr. President, I ask unanimous consent to have printed in the Record the DNI's full statement at the conclusion of my remarks.

He is talking about our bill, the bill I am now talking about. The Rockefeller-Levin bill is the bill the DNI is referring to in his statement. I am not shy about saying that; I am proud of it. The bill he provided to us last evening--that is our bill, not the other one, our bill--is not the Bond bill that was filed 2 days ago. It is our bill.

Our bill takes the DNI's preferred bill and modifies it in a limited number of ways to make it stronger without in any way diminishing the fundamental intelligence authorities the DNI needs. Our bill includes a sunset provision of 6 months, the same sunset provision or period that is contained in the Bond bill, I might add, and we are told that the DNI accepted. In fact, he has told us specifically he accepts it.

Our modified DNI bill--Director of National Intelligence--would allow our intelligence community to begin the surveillance of terrorist suspects, targets located overseas, immediately upon the signing of the bill, even if those targeted calls enter the United States. In other words, you start immediately in the collection. Why is this? Because the collection is not complete. We are not going in all

places we should be, and that is the national requirement because of various warnings that have been issued. So there is no delay--immediate collection--provided there has been a determination by the Attorney General and the DNI that the target is foreign.

The only requirement in this bill on the collection is the requirement that the Foreign Intelligence Surveillance Court must be presented, for its review and approval, the Attorney General's guidelines on how the determination is to be made that targets of surveillance are overseas. So the Foreign Surveillance Intelligence Court remains very much a part of our bill, the bill the DNI prefers. This process of court review and authorization of procedures--not individual targeting determinations but a straightforward review that the procedures are reasonable--is at the heart of both the DNI's bill and ours.

While the DNI proposal of last night sets forth a 90-day period during which this intelligence collection can take place before the court needs to issue another authorizing of the collection, our bill modifies the time involved in this process--we thought that was too long--which we believe will be relatively straightforward and noncontroversial, so that the application, including the guidelines, is submitted to the FISA Court within 10 days after surveillance begins and that the court must act within 30 days, which the court could then extend if additional time is, in fact, needed.

All during this 30-day period of application submission and court review, the collection against foreign targets continues. I keep making that point because it was very hard for people to come to terms with that. This is not case-by-case review. Methods are established, authority is given, and collections can continue.

Moreover, once the court approves the guidelines, the Attorney General is not required to return to the court for further approval for the remainder of the 6-month period of this legislation.

This process provides minimal and yet essential oversight while not inhibiting or delaying the intelligence collection from proceeding. The Rockefeller-Levin bill accepts the DNI-requested authority to proceed during this FISA Court review.

The Bond bill, on the other hand--and I greatly respect and have strong affection for my vice chairman, but we have competing bills, and let the difference be known. The Bond bill, on the other hand, provides a weak and practically nonexistent court review of the procedures for how to determine that a target is foreign and not American. The Bond bill would not require the Attorney General to submit the application and guidelines in the FISA Court until 4 months into the 6-month life of the bill, and then the Bond bill would not require court approval until 6 months has gone by.

In other words, under the Bond bill, court approval of these simple and straightforward guidelines on how the Attorney General would determine whether a target is indeed foreign, guidelines that DNI has told me personally exist already--let me repeat, guidelines that he has said exist already--the guidelines that would have to exist before collection could begin in the first place for the surveillance to be legal under the Bond bill.

These guidelines would not have to be submitted until 4 months into the 6-month life of the bill and would not have to be approved by the court until the last day that the law would be in effect.

Is that meaningful court review over what is a straightforward matter of court review and can easily be handled within 30 days? It is, of course, not, and is, frankly, a farce.

The Rockefeller-Levin modified DNI bill makes sure the Attorney General has guidelines in place to address the concerns of many, including our intelligence officials, that surveillance of foreign targets not inadvertently result in the reverse targeting of Americans and their communications based on innocent communications swept up between Americans and individuals overseas. Our modified DNI bill also states right up front that a court order is not required for the surveillance of foreign-to-foreign communications, even if the interception of the communication occurs in the United States.

The DNI and others have made a huge point about keeping the surveillance of foreign-to-foreign communications outside the FISA process, and I agree. The Rockefeller-Bond bill made clear that this is the case.

I could spend additional time explaining why the Bond bill falls short of the bill that the DNI asked us to pass, in public, earlier this evening. I could spend additional time explaining the merits and protections contained in our bill. But time has run out.

Before us now is a very simple question, and I say this with some heat: Will the Senate pass a bill that the DNI wants, a bill that gives him the collection tool he needs for the next 6 months, and then we review the whole process again, a bill which both Republicans and Democrats can support and can rally around, to clearly demonstrate that we put national security above politics and that we are ready to break with the partisan gridlock of the past and produce results, results which give all Americans some comfort that we have our priorities straight? And we do.

I urge my colleagues to support the Rockefeller-Levin modified DNI bill, and I close, with some lack of subtlety, with the words of the DNI earlier this day:

I urge Members of Congress to support legislation I

provided last evening to modified FISA and equip our

intelligence community with the tools we need to protect our

Nation.

That is our bill; not their bill--our bill. Passage of the Rockefeller-Levin bill--not the Bond amendment, our bill--would give the DNI the tools he needs with the necessary court review and oversight as we continue over the next 6 months on more legislation to reform FISA.

Exhibit 1

Director of National Intelligence,

Washington, DC, August 2, 2007.

Statement by Director of National Intelligence

Subject: Modernization of the Foreign Intelligence

Surveillance Act (FISA)

I greatly appreciate the significant time many Members of

the Senate and the House of Representatives have taken to

discuss with me the urgent need to modernize FISA. I also

appreciate the bipartisan support for ensuring the

Intelligence Community can effectively collect the necessary

intelligence to protect our country from attack. In view of

the significance of this issue, its impact on the

Intelligence Community's ability to be effective and the

continuing dialogue to come to closure on an effective bill,

it is important for me to discuss the essential provisions

needed by the Intelligence Community.

We must urgently close the gap in our current ability to

effectively collect foreign intelligence. The current FISA

law does not allow us to be effective. Modernizing this law

is essential for the Intelligence Community to be able to

provide warning of threats to the country.

Critical Changes Needed

First, the Intelligence Community should not be required to

obtain court orders to effectively collect foreign

intelligence from foreign targets located overseas. Simply

due to technology changes since 1978, court approval should

not now be required for gathering intelligence from

foreigners located overseas. This was not deemed appropriate

in 1978 and it is not appropriate today.

Second, those who assist the Government in protecting us

from harm must be protected from liability. This includes

those who are alleged to have assisted the Government after

September 11, 2001 and have helped keep the country sate. I

understand the leadership in Congress is not able to address

before the August recess the issue of liability protection

for those who are alleged to have helped the country stay

safe after September 11, 2001. However, I appreciate the

commitment of the congressional leadership to address this

particular issue immediately upon the return of Congress in

September 2007.

Provisions that Harm Intelligence Community Operations

The Intelligence Community should not be restricted to

effective collection of only certain categories of foreign

intelligence when the targets are located overseas. We must

ensure that the Intelligence Community can be effective

against all who seek to do us harm.

The bill must not require court approval before urgently

needed intelligence collection can begin against a foreign

target located overseas. The delays of a court process that

requires judicial determinations in advance to gather vital

intelligence from foreign targets overseas can in some cases

prevent the rapid gathering of intelligence necessary to

provide warning of threats to the country. This process would

also require in practice that we continue to divert scarce

intelligence experts to compiling these court submissions.

Similarly, critical intelligence gathering on foreign targets

should not be halted while court review is pending.

However, to acknowledge the interests of all, I could agree

to a procedure that provides for court review--after needed

collection has begun--of our procedures for gathering foreign

intelligence through classified

methods directed at foreigners located overseas. While I

would strongly prefer not to engage in such a process, I am

prepared to take these additional steps to keep the

confidence of Members of Congress and the American people

that our processes have been subject to court review and

approval.

I appreciate the President's and the congressional

leadership's commitment to provide the Intelligence Community

the necessary tools to protect our country and keep us safe

from those who seek us harm. My most solemn duty is to

protect America, provide warning, and ensure that our

Intelligence Community acts within our Constitution and laws.

Has the distinguished vice chairman asked me a question?

I don't need to. The head of National Intelligence has made it very clear and has issued a public statement that he supports our bill. He says:

I reviewed the proposal that the House of Representatives

is expected to vote on this afternoon to modify the Foreign

Intelligence [et cetera]. The House proposal is unacceptable,

and I strongly oppose it. [et cetera] I urge Members of the

Senate to support. . . .

Does the vice chairman yield?

Mr. President, I yield myself 5 minutes. First, before my good friend, the chairman of the Intelligence Committee leaves the floor, through the Chair, may I address the chairman of the Intelligence Committee. The Director of National Intelligence is sitting right off the floor here, and he has not seen--he has just seen your bill. He does not support it. I ask if the chairman of the Intel Committee would step outside and talk to the Director of National Intelligence to see whether, in fact, he does or does not support the Rockefeller bill or the bill that we introduced on behalf of the DNI, which is now pending as amendment No. 1927.

Yes. Would you be willing to step off the floor to ask the

I, at this time, reclaim my time and thank the chairman for his answer. Let me tell you, none of us have seen this bill that is a total new draft of the measure until just a few minutes ago, and we are absolutely stunned that this bill adds new burdens to the already overburdened process of collecting against foreign targets. This bill says it can only apply to communications between foreign persons without a court order. You can't tell if it is a communication between foreign persons when you target a foreign source because you don't know with whom that person is communicating. That is why there are so many burdens now on the FISA Court.

The DNI has said explicitly--he has told us that he opposes the Rockefeller-Levin bill. The DNI has stated that the bill that Senator McConnell and I offered, S. 1927, which we filed on Wednesday night, is the bill that he supports.

Any one of my colleagues who wants to, I invite them to step out this northeast door and talk directly with Admiral McConnell because I think it is extremely important that you find out what his position truly is.

Let me be clear: The bill that was introduced by Senator McConnell and me was the bill that Admiral McConnell had modified after having comments to which he listened from several Democratic chairmen on Tuesday evening. He added the provisions for court review--they are court reviews within 120 days, 4 months--that would be adapted to the new requirements in FISA that did not exist before that will take some time to get together. And it also included a provision that there would be, in addition to that--that there would be the DNI who would be one of the people making the certifications--two things that were requested.

There is one other modification that I will ask unanimous consent to make, or offer an amendment to make, when we prepare to debate on the bills, and that is to include a 6-month sunset so we will have the opportunity to review this bill.

With that, I will have more to say about that later, but the DNI explicitly will tell anybody who steps outside that he does not support this bill.

It is in the bill, excuse me.

I thank the distinguished majority leader. But with that, I will yield the floor and allow other Members to communicate.

I reserve the remainder of my time.

Mr. President, I yield 4 minutes to the distinguished Senator from Virginia.

Will the distinguished Senator yield for a question?

Very quickly. Does the distinguished majority leader know that Admiral McConnell is here because three of his members specifically asked that he come over and comment on these bills, and at their request we invited him to come here to respond to their questions?

Mr. President, I yield 5 minutes to the distinguished Senator from Connecticut.

I yield to the Senator from California 2 minutes.

Mr. President, I yield 3 minutes to the Senator from Texas.

Mr. President, how much time remains on this side?

All right. Mr. President, first, I want to make a point clear. I had referred earlier to comments made by my good friend, the distinguished chairman of the Intelligence Committee, who thought the bill they introduced was a bill that Admiral McConnell had supported. Admiral McConnell has just released a statement saying that he appreciates the efforts to address critical gaps in our current intelligence capabilities: I cannot support the proposal. It creates significant uncertainty in an area where certainty is paramount in order to protect the country. I must have certainty

in order to protect the Nation from attacks that are being planned today to inflict mass casualties.

Really, there are a number of problems with the bill that has been presented on the other side. But the main problem is it says you do not need a court order to collect on communications between persons who are not located within the United States, and the rest of the collections are required to have a court order.

Now, this morning, I read on the Senate floor a declassified summary of an order issued by the FISA Court saying this provision, this statute, FISA, must be amended because due to uncertainties and technological changes, they are spending so much time having to work on orders for collection involving the foreign targets--foreign targets whose impact on the privacy rights of Americans is minimal.

Why is that a problem? The problem is, you do not know--if you are targeting a foreigner--whether that foreigner is going to call or communicate with another foreigner. If you do not, under the bill provided by Rockefeller and Levin, you would have to get a court order. You would have to get a court order if you could not prove the person they were communicating with was not in the United States. And you cannot do that. That is an impossibility. That is an impossibility. You cannot have an order that tells you they are going to be foreign communications only because you do not know until you intercept the communication to where it is going.

Now, there are a number of other questions about the bill. I just have to say the concerns that have been raised--and they are legitimate privacy concerns--are addressed by minimalization procedures. Under what is called the McConnell-Bond bill--which was requested by Admiral McConnell, who modified his original proposal--under that bill, if an American citizen is caught in a communication from an al-Qaida target or another foreign target, then that person's participation is minimized. And if it is not foreign intelligence, that is completely dumped.

Under our bill, like under the previous FISA provisions, you cannot target an American citizen or a U.S. person, including people here on green cards and here in the country, without getting a court order. That is what the FISA Court was set up to do--just to protect people in the United States.

There are protections for the U.S. persons who are caught, incidentally, and they are minimized. Their names are not even identified unless there is evidence of terrorist activities.

Now, the measure we have provided, the McConnell-Bond bill, S. 1927, is one which does meet the needs that were identified by the FISA Court and by Director McConnell to clear up the backlog because there is a huge backlog they cannot work through. The FISA Court is overburdened. They cannot work through and issue the orders because of the tremendous amount of paperwork.

So we must do this now. We must do this tonight to give the intelligence communities the powers they need to collect information at a time when the threat is heightened. If we do not do that, we are in great danger.

We have to do other things, and we will come back and revisit the other things, such as dealing with carrier liability and streamlining the process. Those we must do. That is why we included the sunset at a year.

Mr. President, I yield 1 minute to the Senator from Florida.

Mr. President, I yield 2 minutes to the Senator from Georgia.

Mr. President, I yield 2 minutes to the Senator from Pennsylvania.

Mr. President, I yield the remaining time on this side to the distinguished minority leader.

Mr. President, I move to reconsider the vote.

Mr. President, I ask unanimous consent that the Senate now proceed to debate concurrently S. 2011, now at the desk, and S. 1927, as amended with the changes now at the desk; that there be 60 minutes of debate equally divided between the two leaders or their designees; that no amendments or motions be in order with respect to either bill; that at the conclusion or yielding back of time, the bills each be read a third time and the Senate vote on passage of S. 1927, as amended, to be followed by a vote on passage of S. 2011; that if either bill fails to achieve 60 votes, then the vote on passage be vitiated and the bill be placed on the calendar in the case of S. 2011 or returned to the calendar in the case of S. 1927, as amended.

Mr. President, I ask on our time that Senator Rockefeller be given 10 minutes.

Mr. President, before my distinguished friend leaves the floor, I just spoke with Senator Leahy. He does not want his name as a sponsor. He is supportive of the deal, but he thinks it should be Rockefeller-Levin.

I yield.

Is Senator Levin ready to speak? Is Senator Feingold ready to speak? No.

Mr. President, I appreciate everyone's hard work. It has been a very difficult time to get here. I especially wish to extend my appreciation to Senators Rockefeller, Levin, Leahy, Feingold, Durbin, Mikulski, Feinstein, Nelson, and I am sure I have missed some people, but those are the ones whom I have heard from recently--and certainly Sheldon Whitehouse, who put in the graveyard shifts.

I wish to say, before I turn to my prepared remarks, I too have the greatest admiration for Admiral McConnell, but I have to say, I am concerned that we have Admiral McConnell here checking on us. I mean, he should not be--``do you want to go ask him how he feels about this legislation?''

I can't appreciate that. I think it is wrong that this man whom we put in this very important position is here roaming the halls finding out how we are going to vote, sending Senators out to find out how he feels about it?

I will in a minute.

Because he supports the legislation offered by my friends Senators McConnell and Bond and does not support

this does not mean this is bad legislation.

I will be happy to respond to a question. If you can use your time, that would be great.

I appreciate that. I misunderstood. I thought he was waiting in the hall to answer questions. You asked one Senator if he wanted to go ask him how he felt about the legislation. I think that is inappropriate.

I have the greatest respect for my friend. I wish to get my statement out while I have time. We are on a very limited timeframe. I know the Senator knows the details of it, but I have a few things I wish to say.

Mr. President, I may have to use a little bit of leader time because our time is fast ending. So I will do that as quickly as I can.

Mr. President, as we know from the briefings we have received from the Director of National Intelligence, the FISA law needs to be updated. But I underscore and certainly want to be made part of the statements made by my friend, the Senator from Wisconsin, Mr. Feingold.

Our intelligence community professionals are currently lacking, we are told, critical information and tools they need to protect this Nation from terrorism.

My goal, when I learned about the intelligence communities' concerns, was to pass the legislation that addresses DNI's legitimate concerns, asserts our oversight responsibility, protects the rights of American citizens, and is temporary in duration.

I believe the legislation offered by Senators Rockefeller and Levin achieves each of these goals, gives the communities all the tools they need, but at the same time it makes the independent FISA Court, not the Attorney General, the overseer of the methods and procedures used for collecting foreign intelligence.

Democrats and Republicans want to aggressively pursue al-Qaida and other terrorist organizations and other terrorists. This bill does that, but not at the cost of targeting American citizens without court authorization. We have had many conversations in the last several days with Admiral McConnell. I can say with great confidence that this legislation provides him with everything he asked for in these discussions, everything.

He told us he wanted the tool to collect foreign-to-foreign intelligence communications without a warrant. He got it. He told us he wanted the ability to compel compliance from communications providers with liability protection. He got it.

He told us he wanted the ability to collect all foreign intelligence information, not just intelligence related to terrorism. He got it. He told us he wanted the ability to temporarily begin the collection of intelligence without seeking a court order. He even got that.

In fact, the legislation was provided by the administration to Admiral McConnell, and that legislation, he said in a statement today, he strongly supports--which we have heard--served as the starting point for the Levin-Rockefeller legislation. That is what we have before us; it is a modified McConnell amendment.

What we have before us tonight, with very modest edits, is Admiral McConnell's proposal, what he told us he wanted, and what he gave us in writing.

I would hope it receives the broad support of the Senate. The Bond legislation, on the other hand, is not something I can support. It authorizes, in my opinion, warrantless searches of Americans' phone calls, e-mails, homes, offices and personal records and for however long it is appealed to the court of review and the Supreme Court takes. This process could take months or indeed years.

Even worse, the search does not have to be directed abroad, just concerning a person abroad, any search, any search inside the United States, the Government can claim to be concerning al-Qaida is authorized. I do not believe that is the right way, the strong way or the Constitutional way to fight the war on terrorism. I urge all Members to support the Rockefeller-Levin bill.

It does everything that Admiral McConnell has requested. It strikes the right balance between protecting the American people from terrorism and preserving their Constitutional fundamental rights.

Let the record be clear: Every Senator here tonight is patriotic and wants to get rid of these bad people and find out everything they are talking about, in a way that is in keeping with our Constitution. I appreciate the service of my friend from Missouri. He has been a valiant member of that committee and does a good job.

So let's not question tonight, and I hope I have not done that, anyone's patriotism or what they are trying to do. What we are trying to do is the right thing. But I believe the best way to go is by supporting the second vote, which will be Levin-Rockefeller.

How much time do we have on our side?

I yield 7 minutes to Senator Levin, 5 minutes for Senator Feingold.

I yield the Senator from Wisconsin 5 minutes.

Would you mind going next, Senator Bond? You have 16 minutes and we have 8.

I will yield her 1 minute.

When she completes her statement, we have 2 or 3 minutes left; is that right?

Mr. President, I yield 1 minute to the Senator from Maryland, Ms. Mikulski, leaving me with 1 minute.

Mr. President, I yield Senator Whitehouse 1 minute.

I yield back any remaining time.

I move to reconsider the vote, and I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Mr. President, there is general agreement on both sides of the aisle that we have a foreign intelligence surveillance problem that should be addressed. The difference between us is that on this side of the aisle we have consistently been willing to work cooperatively to solve the problem.

There is a model. In 1976, we faced a similar problem. The Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, known as the Church Committee, had found disturbing abuses of electronic surveillance. Congress and the administration set out to pass a law to prevent such abuses in the future, while still protecting our national security.

In 1976, I was the principal sponsor of the original bill that became FISA. When my colleagues and I first introduced the bill, we had a Democratic Congress, a Republican President, Gerald Ford, and a Republican Attorney General, Ed Levi. Attorney General Levi understood the need for Congress and the executive branch to work together. Members of the Judiciary Committee went down to the Justice Department at least four times to meet on the bill. There were discussions with Henry Kissinger, Don Rumsfeld, Brent Scowcroft, and George Bush among others.

We worked responsibly and cooperatively to develop legislation to protect our civil liberties and ensure that the Nation could use necessary surveillance. In the end, Attorney General Levi praised the bipartisan spirit of cooperation that characterized the negotiations and produced a good bill. That administration recognized the importance of working with Congress. The final bill was passed by the Senate by a vote of 95 to 1.

As this history demonstrates, our Nation is strongest when we work together for our national security. Unfortunately, the current administration has chosen a very different course. President Bush has refused all along to consult Congress on the development and implementation of its surveillance program, and now we find that it violated the law.

This is not an argument for granting expanded discretion to the administration. There is simply no basis for trusting this administration to respect the privacy of the American people. Nor do we have any confidence in the administration's competence to adopt a lawful and effective program.

When Attorney General Gonzales appeared before the Judiciary Committee in February 2006, I questioned him about FISA and the recently revealed warrantless eavesdropping program. I offered to work with him then. In fact, I asked him why he had not approached Congress sooner, given Attorney General Levi's success and given the cost of getting it wrong. He answered: ``We did not think we needed to, quite frankly.''

Well, we now know that wasn't true. I pointed out to the Attorney General at the time the benefit of having consensus on this issue and the importance of fostering a cooperative atmosphere. His answer to me was: ``I do not think that we are wrong on this.'' But they were wrong, which is why we are debating this issue at the eleventh hour today.

I told him then that the administration was sending the wrong message to the courts, that they were jeopardizing our ability to convict terrorists by using these illegal intelligence methods. The Attorney General said:

That is the last thing we want to do. We believe this program is lawful.

He was wrong again. The program is not lawful and administration needs Congress to fix it.

I did not stand alone on these issues. I had the support of many of my colleagues on the committee on both sides of the aisle. Yet the record is clear that the Attorney General repeatedly rebuffed our efforts to work with the Administration to get this legislation right the first time.

Instead, the Attorney General and the President have consistently rejected congressional input and oversight. They have repeatedly demanded that Congress rubberstamp their decisions and trust their discretion. We have seen where that leads, and we owe the Nation a better approach.

We should pass legislation today that closes the gap in current law and preserves the critical role of the Foreign Intelligence Surveillance Court in protecting our civil liberties.

Unfortunately, some of our colleagues, instead of using this opportunity to work together to safeguard the Nation, would prefer to pass yet another partisan assault on the rule of law and American civil liberties. They insist on diminishing the role of the FISA Court and increasing the unsupervised discretion of the Attorney General and the Director of National Intelligence. They want to trust Alberto Gonzales to ensure that the Government does not listen to the phone calls and read the e-mails of Americans without justification. We need to modernize FISA, not undermine it. Their proposal clearly contradicts the fundamental purpose of the initial legislation.

This administration railroaded us into war in Iraq, railroaded us into passing the PATRIOT Act and the Military Commissions Act and now it wants to railroad us into amending FISA without the time or information to consider the need properly.

We take a backseat to no one in wanting to keep our America safe. We know that our families, our friends, and our communities are at stake. We want to give our intelligence agencies the tools they need, but there is a right

way and a wrong way to do it. This eleventh-hour grandstanding by administration is the wrong way to do it.

We should remember how we reached this point. For 4 straight years, the Bush administration recklessly conducted warrantless surveillance in violation of FISA. The President acknowledged this surveillance only after it was reported in the press. Until January of this year, the administration refused to bring its surveillance program under the oversight of the FISA Court, despite the clear statutory requirement to do so.

The FISA Court has now reviewed the surveillance and has issued a ruling. It has declared that a significant aspect of the President's warantless surveillance program, in operation for 4 years without any oversight, violates the law and cannot continue. Without bipartisan congressional pressure to force that review, these and other despicable violations of the rule of law would have gone on and on. Even today, the Attorney General continues to mislead Congress on basic information about the program, and he refuses to provide the legal justifications on which he relied.

Now, after the FISA Court's clear ruling, the administration is urgently demanding that we correct their mistake. We can do that. We can reach the appropriate balance between modernizing the legislation to protect our national security and maintaining its basic protection of civil liberties. If the administration and its allies are serious about effectively protecting the country from terrorist threats, and doing so under the rule of law, they should support such legislation.

May I make a parliamentary inquiry?

Mr. President, we have before us two pieces of legislation; am I correct?

Would the Chair please state who the sponsors are of the two individual pieces of legislation?

I thank the Chair.

Would the Senator yield for another question? I also note in here S. 1927 basically gives a great deal----

Mr. President, the Rockefeller-Levin bill might not be precisely the bill I would have written to fix the problem, but it is a responsible and targeted fix to the Foreign Intelligence Surveillance Act, FISA, problem that has been identified. It is an appropriate response to the need expressed by Director of National Intelligence McConnell regarding our foreign intelligence collection overseas. In addition, it tries to preserve some balance and some protections for the civil liberties of Americans by keeping the FISA Court involved when there are significant communications to and from the United States.

I have been briefed by the DNI and his staff and met with him several times recently about a problem that our intelligence agencies are having in collecting information from overseas. I have said that I am willing to fix this problem, and I am. I have proposed ways to fix this identified problem. It might not be everything he would like, his wish list, but it solves his problem. The Congress has shown that it is willing and able to reform FISA when changes are needed. We have done so many times since FISA was first passed in 1978 and at least half a dozen times since September 11, 2001. I believe such a targeted, responsible fix is justified.

To achieve that fix, I would vote for Rockefeller-Levin. We could enact the needed change immediately. As I have indicated, it is not everything that I would have wanted or drafted precisely as I would have written it. But it does the job and achieves a better balance than any viable alternative. I have worked with Senator Rockefeller for weeks on this matter and appreciate his leadership on this matter, as well as that of Senator Levin.

The problem our intelligence agencies are having is with targeting communications overseas. We want them to be able to intercept calls between two people overseas with a minimum of difficulty. Obviously, the situation is complicated when people overseas might be talking to people here in the United States. These calls could be innocent conversations of businesspeople, tourists, our troops overseas to their families, or to other friends or family in the United States. We should want to give the Government great flexibility to listen to foreign-to- foreign calls, while still protecting privacy of innocent Americans by making sure the Government gets warrants when they are involved.

The Rockefeller-Levin bill accomplishes both of these things. It provides a very flexible standard up front for the Government--it is only required to go to the court for approval of procedures for how it will know that the targets are, in fact, overseas. There is no case-by- case application and approval of warrants for these overseas targets. There is even an initial emergency provision that would allow the Government to start these interceptions before the court has done anything.

To protect Americans, the House bill requires the Government to have guidelines--and show them to the Congress--for how it will determine when a target is having regular communications with the United States. Then they need to go back to the regular FISA procedures and show probable cause. Also, the Department of Justice inspector general must do an audit of the conduct under this bill to see how much information about people in the United States is being collected and must provide that audit to the court and Congress. Because this process has been so expedited and the issues involved are so significant, the bill would sunset in 180 days, so the Congress and the administration will have an opportunity to review it and act in a more deliberative way on these important issues.

Some things were added here that I might not have done. It now applies to all foreign intelligence targets, not just those involving international terrorism. It also does not require the court to review and approve the guidelines for handling significant communications with the United States, only the Congress sees this. These aspects trouble me. They are significant. The Director of National Intelligence has said that with these changes, the bill solves his problems and would significantly enhance our national security. This bill should resolve the matter, but this administration does not know how to take ``yes'' for an answer.

Regrettably, what has come over from the administration and has been introduced here by Senator Bond and Senator McConnell goes far beyond what the DNI said he needs and I fear would be very harmful to the civil liberties of Americans. The bill the administration has proposed is a vast rewrite of the FISA law that undercuts the purposes of that act in significant ways. What the administration has done is leverage a fixable problem into passage of a wish list of ways to give the Attorney General and through him the White House virtual unfettered authority to conduct surveillance. It would take away any meaningful role for the FISA Court for calls between overseas and the United States. In fact, because it is not restricted to terrorism but involves any foreign intelligence, the administration's bill gives them far greater authority than they had claimed in their secret, warrantless surveillance program.

This bill allows Attorney General Gonzales to order surveillance. This Attorney General is in charge of decisions about when to conduct surveillance and can instruct the court to enforce those decisions. In effect, the only role for the court under this bill is as an enforcement agent--it is to rubberstamp the Attorney General's decisions and use its authority to order telephone companies to comply. The court would be stripped of its authority to serve as a check and to protect the privacy of people within the United States. Their bill likewise requires no review or audit by the Justice Department or anyone else about the number of U.S. communications that are being gathered by these orders.

I believe it is important to solve the problem our intelligence agencies are having right now. It is also essential to preserve the critical role of the FISA Court in protecting civil liberties of Americans. The House bill will do both of these things better than its alternatives.