Foreign Intelligence Surveillance Substitution Act of 2007

Mr. President, first, let me say to my two good friends, Senators Rockefeller and Bond, I appreciate the job they do serving as chairman and ranking member of the Senate Intelligence Committee. I commend them for their efforts in this matter.

Having said that, I reluctantly rise to urge my colleagues to vote against cloture on S. 2248, the FISA Amendment Act, and I will explain why.

Opposing cloture is essential, because there is no unanimous consent agreement in place providing for the immediate adoption of the Judiciary Committee substitute amendment.

As you know, the Judiciary substitute amendment, among other things, strikes title II of the Intelligence Committee bill--the title which seeks to provide retroactive immunity to telecommunications companies who are alleged to have violated their customers' privacy rights by turning over information to the government without warrants.

I am fully aware that the majority leader has various parliamentary options at his disposal to move this legislation forward. It is his right to attempt to invoke cloture.

But I regret that decision, and I hope that my colleagues will join me in stopping this legislation.

Mr. President, why do I feel so strongly about this matter?

For the last 6 years, our largest telecommunications companies have been spying on their own American customers.

Secretly and without a warrant, they delivered to the Federal Government the private, domestic communications records of millions of Americans--records this administration has compiled into a database of enormous scale and scope.

That decision betrayed millions of customers' trust. It was unwarranted--literally.

But was it illegal?

That, Mr. President, I don't know. And if this bill passes in its current form, we will never know. The President's favored corporations will be immune.

Their arguments will never be heard in a court of law. The details of their actions will stay hidden. The truth behind this unprecedented domestic spying will never see light. And the book on our Government's actions will be closed, and sealed, and locked, and handed over to the safekeeping of those few whom George Bush trusts to keep a secret.

The bill that the majority leader will seek to make the pending business of the Senate later today--the FISA Amendments Act of 2007-- has a long and twisted history behind it. Its origins lie in President Bush's years of warrantless spying on Americans.

That abuse of power was exposed by the press in late 2005. The New York Times revealed that:

Under a presidential order signed in 2002, the [National

Security Agency] has monitored the international telephone

calls and international e-mail messages of hundreds, perhaps

thousands, of people inside the United States without

warrants over the past three years.

In fact, we later learned that the President's warrantless spying was authorized as early as 2001.

Disgraced former Attorney General Alberto Gonzales, in a 2006 white paper, attempted to justify that spying; his argument rested on the specious claim that, in authorizing the President to go to war in Afghanistan, Congress had also somehow authorized him to listen in on phone calls in America.

But many of those who voted on the original authorization of force found this claim to new executive powers to be a laughable invention. Here's what former Majority Leader Tom Daschle wrote:

As Senate majority leader . . . I helped negotiate that law

with the White House counsel's office over two harried days.

I can state categorically that the subject of warrantless

wiretaps of American citizens never came up . . . I am also

confident that the 98 senators who voted in favor of

authorization of force against al-Qaida did not believe that

they

were also voting for warrantless domestic surveillance.

Such claims to expanded executive power based on the authorization for military force have since been struck down by the courts.

In recent months, the administration has changed its argument, now grounding its warrantless surveillance power in the extremely nebulous ``authority of the President to defend the country'' that they find in the Constitution.

Of course, that begs the question: Exactly what doesn't fit under ``defending the country''? If we take the President at his word, we would concede to him nearly unlimited power, as long as he finds a lawyer willing to stuff his actions into that boundless category.

Rather than concede such power, Congress has worked to bring the President's surveillance program back where it belongs--under the rule of law.

At the same time, we have worked to modernize FISA and ease restrictions on terrorist surveillance. The Protect America Act, a bill attempting to respond to that two-pronged challenge, passed in August; but it is set to expire in February.

The bill now before us would create a legal regime for surveillance under reworked and more reasonable rules. But crucially, President Bush has demanded that this bill include full retroactive immunity for corporations complicit in domestic spying. In a speech on September 19, he stated that ``it's particularly important for Congress to provide meaningful liability protection to those companies.''

In October, he stiffened his demand, vowing to veto any bill that did not shield the telecom corporations. And this month, he resorted to shameful, misleading scare tactics, accusing Congress of failing ``to keep the American people safe.''

That month, the FISA Amendments Act came before the Senate Select Committee on Intelligence. Per the President's demand, it included full retroactive immunity for the telecom corporations. Senator Nelson introduced an amendment to strip that immunity, and instead allow the matter to be settled in the courts. It failed by a vote of 3 to 12.

But as it passed out of the Intelligence Committee, by a vote of 13 to 2, the bill still put corporations literally above the law and ensured that the extent of the President's invasions of privacy would remain a secret. I found retroactive immunity far beyond the pale, and I made my objections strongly and publicly.

But the bill also had to pass through the Judiciary Committee. There, Chairman Pat Leahy succeeded in reporting out a bill without the egregious immunity provision. Over the years, Pat Leahy has cemented his reputation as a champion of the rule of law; and I believe the stand he took last month will be honored for a long time to come.

However, I am still concerned that when Senator Feingold proposed an amendment to strip immunity for good, it failed by a vote of 7 to 12.

So here we are--facing a final decision on whether the telecommunications companies will get off the hook for good. The President's allies are as intent as they ever were on making that happen. They want immunity back in this bill at all costs.

But what they are truly offering is secrecy in place of openness. Fiat in place of law.

And in place of the forthright argument and judicial deliberation that ought to be this country's pride, two simple words from our President's mouth: ``Trust me.''

I cannot speak for my colleagues--but I would never take that offer, not even in the best of times, not even from a perfect President. I would never take that offer because our Constitution tells us that the President's word is subject to the oversight of the Congress and the deliberation of the courts; and because I took an oath to defend the Constitution; and because I stand by my oath.

``Trust me.'' It is the offer to hide ourselves in the waiting arms of the rule of men. And in these threatened times, that offer has never seemed more seductive. The rule of law has rarely been so fragile.

``It is a universal truth that the loss of liberty at home is to be charged to the provisions against danger . . . from abroad.'' James Madison, the father of our Constitution, made that prediction more than two centuries ago. With the passage of this bill, his words would be one step closer to coming true. So it has never been more essential that we lend our voices to the law, and speak on its behalf.

On its behalf, we say to President Bush that a Nation of truly free men and women would never take ``trust me'' for an answer, not even from a perfect President--and certainly not from this one.

In these times--under a President who seems every more day intent on acting as if he is the law, who grants himself the right to ignore legislation, who claims the power to spy without a warrant, to imprison without a hearing, to torture without a scruple--in these times, I would be a fool to take his offer.

But ``trust me,'' says President Bush. He means it literally. When he first asked Congress to make the telecoms' actions legally disappear, Congress had a reasonable question for him: Can we at least know exactly what we'd be immunizing? Can you at least tell us what we'd be cleaning up?

And the President refused to answer. Only he, his close advisors, and a handful of telecom executives know all of the facts. Congress is only asked to give token oversight. But if we are to do our constitutionally mandated job, we need more than token oversight; we need full hearings on the terrorist surveillance program before the Intelligence and Judiciary Committees.

Without that, we remain in the dark--and in the dark we're expected to grant the President's wish, because he knows best.

Does that sound familiar to any of my colleagues?

In 2002, we took the President's word and voted to go to war on faulty intelligence. What if we took his word again--and found, next year or the year after, that we had blindly legalized grave crimes?

If this disastrous war has taught us anything, it is that the Senate must never again stack such a momentous decision on such a weak foundation of fact. The decision we're asked to make today is not, of course, as immense. But between fact and decision, the disproportion is just as huge.

So I rise in determined opposition to this unprecedented immunity and all that it represents. I have served in this body for more than a quarter century. I have spoken from this desk hundreds and hundreds of times. I have rarely come to the floor with such anger.

But since I came to Washington, I have seen six Presidents sit in the White House--and I have never seen a contempt for the rule of law equal to this. Today, I have reached a breaking point. Today my disgust has found its limit.

I don't expect every one of my colleagues to share that disgust, or that limit. I wish they did--but had that been the case, we would never have come to this point.

I only ask them to believe me when I say if I did not speak today, my conscience would not let me rest.

The right to conscience is one of the Senate's most treasured allowances. It is perhaps this body's defining feature. The President has his dominating bully pulpit. Justice Robert Jackson famously wrote that ``in drama, magnitude and finality [the President's] decisions so far overshadow any others that almost alone he fills the public eye and ear. No other personality in public life can begin to compete with him in access to the public mind.''

But in this Chamber, a minority--even an impassioned minority of one--has the right to stand against all the combined weight and machinery of government and plead: ``Stop!'' Or at least: ``Wait.'' A minority can't stand forever, as surely as I can't speak forever. Ultimately, a minority has only one recourse--to make itself a majority. And I have faith that when the American people understand the full extent of this President's contempt for the law, they will share my outrage. This is a trusting and patient nation--and with more than two centuries of democratic tradition, rightly so. But that trust is not infinite; that patience is not endless; and after 7 years of this President, they are worn down to the nub.

If I didn't believe that, I wouldn't be standing here today. If the rule of law

were not my ruling passion, I wouldn't be standing here today. But I do, and it is.

``Law'' is a word we barely hear from the President and his allies. They offer neither a deliberation about America's difficult choices in the age of terrorism, nor a shared attempt to set for our times the excruciating balance between security and liberty.

They merely promise a false debate on a false choice: security or liberty, but never, ever both.

It speaks volumes about the President's estimation of the American people that he expects them to accept that choice. I think differently. I think that America's founding truth is unambiguous: security and liberty, one and inseparable, and never one without the other.

Secure in that truth, I offer a challenge to the President's allies: You want to put the President's favored corporations above the law. Could you please explain how your immunity makes any one of us any safer by an iota?

If security were truly the issue, this debate wouldn't be happening. An excellent balance between security and liberty has already been struck by FISA, a balance that has stood for three decades. In fact, FISA was written just to prevent a situation like ours from occurring: to protect Americans without countenancing executive lawbreaking.

In the wake of the Watergate scandal, the U.S. Senate convened the Church Committee, a panel of distinguished senators determined to shine light on executive abuses of power. The facts it uncovered were shocking:

Army spying on the civilian population; Federal dossiers on citizens' political activities; a CIA and FBI program that had opened hundreds of thousands of Americans' letters without warning or warrant.

The collective force of these revelations was undeniable: In their oversight duties, Congress and the courts had failed; they had unquestioningly accepted the executive's ``trust me''; and as a result, Americans had sustained a severe blow to their fourth amendment rights ``to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.''

The Senate could have panicked; it could have ended or drastically curtailed those searches altogether. But in its wisdom, the Senate understood that protecting the American people was not the problem; the problem was simply the Nixonian attitude that ``if the President does it, it's not illegal.''

The solution was to bring the executive's efforts to protect America under the watchful eye of Congress and the courts--to restore checks and balances to surveillance, and to give it the legitimacy it demands and deserves. America would not be America if such power remained concentrated in the hands of one man, or one branch of Government.

The Church Committee's final report, ``Intelligence Activities and the Rights of Americans,'' put the case eloquently:

The critical question before the Committee was to determine

how the fundamental liberties of the people can be maintained

in the course of the Government's effort to protect their

security. The delicate balance between these basic goals of

our system of government is often difficult to strike, but it

can, and must, be achieved.

We reject the view that the traditional American principles

of justice and fair play have no place in our struggle

against the enemies of freedom. Moreover, our investigation

has established that the targets of intelligence activity

have ranged far beyond persons who could properly be

characterized as enemies of freedom. . . .

We have seen segments of our Government, in their attitudes

and action, adopt tactics unworthy of a democracy, and

occasionally reminiscent of the tactics of totalitarian

regimes.

We have seen a consistent pattern in which programs

initiated with limited goals, such as preventing criminal

violence or identifying foreign spies, were expanded to what

witnesses characterized as ``vacuum cleaners,'' sweeping in

information about lawful activities of American citizens.

The Senators of the Church Commission concluded:

Unless new and tighter controls are established by

legislation, domestic intelligence activities threaten to

undermine our democratic society and fundamentally alter its

nature.

What a strange echo we hear in those words. They could have been written yesterday. Three decades ago, our predecessors in this Chamber understood that when domestic spying goes too far, it threatens to kill just what it promises to protect--an America secure in its liberty. That lesson was crystal clear 30 years ago. Why is it so clouded now?

And before we entertain the argument that ``everything has changed'' since those words were written, remember: The men who wrote them had witnessed world war and Cold War, had seen Nazi and Soviet spying, and were living every day under the cloud of nuclear holocaust. How short some memories are.

The threats have multiplied and grown in complexity, but the lesson has been immutable: Warrantless spying threatens to undermine our democratic society, unless legislation brings it under control. In other words, the power to invade privacy must be used sparingly, guarded jealously, and shared equally between the branches of Government.

Or the case can be made pragmatically. As my friend Harold Koh, the dean of Yale Law School, recently argued:

The engagement of all three branches tends to yield not

just more thoughtful law, but a more broadly supported public

policy.

Three decades ago, that broadly supported public policy--a prime outcome of the Church Committee--was the Foreign Intelligence Surveillance Act, or FISA. FISA confirmed the President's power to conduct surveillance of international conversations involving anyone in the United States, provided that the Federal FISA court issued a warrant--ensuring that wiretapping was aimed at safeguarding our security, and nothing else. To further protect intelligence gathering, that court was to work in secret.

Ironically, none other than the President's own Director of National Intelligence, Mike McConnell, explained the rationale in an interview this summer: The United States ``did not want to allow [the intelligence community] to conduct . . . electronic surveillance of Americans for foreign intelligence unless you had a warrant, so that was required.''

As originally written in 1978, and as amended nine times since, FISA has accomplished its mission; it has been a valuable tool for conducting surveillance of terrorists and those who would harm America. And every time Presidents have come to Congress openly to ask for more leeway under FISA, Congress has worked with them; Congress has compromised; and together, Congress and the President have struck a balance that safeguards America while doing its utmost to protect privacy.

This summer, Congress made a technical correction to FISA, enabling the President to wiretap, without a warrant, conversations between two foreign targets, even if those conversations are routed through American computers. Personally, I felt that this summer's legislation went too far, and I opposed it. But the point is that Congress once again proved its willingness to work with the President on FISA. Isn't that enough?

Just this October and November, as we have seen, the Senate Intelligence and Judiciary Committees worked with the President to further refine FISA and ensure that, in a true emergency, the FISA court would do nothing to slow down intelligence gathering. Isn't that enough?

And as for the FISA court, it has approved the President's wiretapping requests with impeccable consistency.

Between 1978 and 2004, according to the Washington Post, the FISA court approved 18,748 warrants and rejected five. The FISA court has sided with the executive 99.9 percent of the time. Isn't that enough?

Is anything lacking? Isn't the framework already in place? Isn't all of this enough to keep us safe?

We all know the President's answer. Given this complex, fine-tuned machinery, crafted over three decades by all three branches, what did he do? He ignored it.

Given a system primed to bless nearly any eavesdropping he could conceive--he conducted his own, illegally.

If the shock of that decision has yet to sink in, think of it this way: President Bush ignored not just a Federal court, but a secret Federal court; not just a secret Federal court, but a secret Federal court prepared to sign off on his actions 99.9 percent of the time. A

more compliant court has never been conceived. And still that wasn't good enough for our President.

So I will ask the Senate candidly, and candidly it already knows the answer: Is this about our security or is it about his power?

I ask that question not to change the subject, but because it is the key to understanding why this administration is pushing so hard for telecom immunity--that is, for secrecy. Richard Nixon, the same man who declared that ``if the president does it, it's not illegal,'' raised secrecy to an art form--because he understood that the surest way to amass power is to conceal its true extent.

Secrecy can spring from the best motives; but as it grows it begins to exist only for itself, only for its own sake, only to cover its own abuses.

The Senators of the Church Committee expressed succinctly the deep flaw in that form of Government: ``Abuse thrives on secrecy.''

Today, we have seen the executive branch pass to a new master of secrecy. Vice President Cheney practices a secrecy so baroque that it could, in a less threatened time, be an object for laughter, instead of fear.

His unclassified papers? Stamped ``treat as TSSCI,'' one of the highest levels of state secret. The list of papers he has declassified? Classified. The members of his energy task force? None of your business. His location? Undisclosed. The names of his staff? Confidential. And tellingly, of course, the visitor log for his office? Shredded by the Secret Service.

When secrecy becomes this divorced from practicality, we are left with only one conclusion: For this executive branch, secrecy is power.

Of course, I don't mean any offense against our Vice President--as he reminds us, he is not part of the executive branch.

We see a pattern of secrecy stretching back to the first months of this administration. Its push for immunity is no different--secrecy is at its center.

And tellingly, the administration's original immunity proposal protected not just the telecoms, but everyone involved in the wiretapping program. In their original proposal, that is, they wanted to immunize themselves.

Think about that. It speaks to their fear and, perhaps, their guilt: their guilt that they had broken the law, and their fear that in the years to come, they would be found liable or convicted. They knew better than anyone else what they had done--they must have had good reason to be afraid!

Thankfully, executive immunity is not part of the bill before us. I am grateful for that. But the origin of immunity tells us a great deal about what's at stake here: This is, and always has been, a self- preservation bill.

Otherwise, why not have the trial and get it over with? If the President's allies believe what they say, the corporations would win in a walk.

After all, look at things from their perspective: In their telling, when our biggest telecom corporations helped the President spy without a warrant, they were doing their patriotic duty. When they listened to the executive branch and turned over private information, they were doing their patriotic duty.

When one company gave the NSA a secret eavesdropping room at its own corporate headquarters, it was simply doing its patriotic duty. The President asked, the telecoms answered.

Shouldn't that be an easy case to prove, Mr. President? The corporations only need to show a judge the authority and the assurances they were given, and they will be in and out of court in 5 minutes. If the telecoms are as defensible as the President says, why doesn't the President let them defend themselves? If the case is so easy to make, why doesn't he let them make it? Why is he standing in the way?

Our Federal court system has dealt for decades with the most delicate national security matters, building up expertise in protecting classified information behind closed doors--ex parte, in camera. We can expect no less in these cases. If we're worried about national security being threatened as a result, we can simply get the principals a security clearance.

No intelligence sources need be compromised. No state secrets need be exposed. And we can say so with increasing confidence, because after the extensive litigation that has already taken place at both the district court and circuit court level, no sensitive information has leaked out.

In fact, Federal District Court Judge Vaughn Walker, a Republican appointee, has already ruled that the issue can go to trial without putting state secrets in jeopardy. He reasonably pointed out that the existence of the President's surveillance program is hardly a secret at all: The government has already disclosed the general contours of the ``terrorist surveillance program,'' which requires the assistance of a telecommunications provider.

George Bush wouldn't be the first president to hide righteously behind the state secrets privilege. In fact, the privilege was tainted at its birth by a President of my own party, Harry Truman. In 1952, he successfully invoked the new privilege to prevent public exposure of a report on a plane crash that killed three Air Force contractors.

When the report was finally declassified--some 50 years later, decades after anyone in the Truman administration was within its reach--it contained no state secrets at all. Only facts about repeated maintenance failures that would have seriously embarrassed some important people. And so the state secrets privilege began its career not to protect our nation--but to protect the powerful.

In his opinion, Judge Walker argued that, even when it is reasonably grounded:

The state secrets privilege [still] has its limits. While

the court recognizes and respects the executive's

constitutional duty to protect the nation from threats, the

court also takes seriously its constitutional duty to

adjudicate the disputes that come before it. To defer to a

blanket assertion of secrecy here would be to abdicate that

duty, particularly because the very subject matter of this

litigation has been so publicly aired.

The compromise between liberty and security remains a

difficult one. But dismissing this case at the outset would

sacrifice liberty for no apparent enhancement of security.

And that ought to be the epitaph for this Presidency: ``sacrificing liberty for no apparent enhancement of security.'' Worse than selling our soul--giving it away for free!

The President is equally wrong to claim that failing to grant this retroactive immunity will make the telecoms less likely to cooperate with surveillance in the future.

The truth is that, since the 1970s, FISA has compelled telecommunications companies to cooperate with surveillance, when it is warranted--and what's more, it immunizes them. It is done that for more than 25 years.

So cooperation in warranted wiretapping is not at stake today. Collusion in warrantless wiretapping is--and the warrant makes all the difference, because it is precisely the court's blessing that brings Presidential power under the rule of law.

In sum, we know that giving the telecoms their day in court--giving the American people their day in court--would not jeopardize an ounce of our security. And it could only expose one secret: the extent of our president's lawbreaking, and the extent of his corporations' complicity. That, our President will go to the mat to defend. That, he will keep from the light of a courtroom at all costs. That, his supporters would amend the law to protect.

And that is the choice at stake today: Will George Bush's secrets die with this Presidency? Or will they be open to the generations to come, to our successors in this Chamber, so that they can prepare themselves to defend against future outrages of power and usurpations of law from future Presidents, of either party?

I am here because I will not see those secrets go quietly into the good night with Donald Rumsfeld and Alberto Gonzales and Dick Cheney and George Bush. I am here because the truth is not their private property--it belongs to every one of us, and it demands to be heard.

``State secrets,'' ``patriotic duty''--those, as weak as they are, are the arguments the president's allies use when they're feeling high- minded! When their thoughts turn baser, they make their arguments in dollar signs.

Here's how Mike McConnell put it:

If you play out the suits at the value they're claimed, it

would bankrupt these companies. So . . . we have to provide

liability protection to these private sector entities.

Mike McConnell is quickly becoming an accidental truth-teller! Notice how

the President's own Director of National Intelligence concedes that if the cases went to trial, the telecoms would lose. I don't know if that's true, Mr. President--but we can thank Admiral McConnell for telling us how he really feels.

Of course, it is an exaggeration to claim that these companies would surely go bankrupt, even if they did lose.

We are talking about some of the wealthiest, most successful companies in America. Let me quote an article from Dow Jones MarketWatch. The date is October 23, 2007. The headline reads: ``AT&T's third-quarter profit rises 41.5 percent.''

AT&T Inc. on Tuesday said third-quarter earnings rose 41.5

percent, boosted by the acquisition of BellSouth and the

addition of 2 million net wireless customers . . . Net income

totaled $3.06 billion . . . compared with $2.17 billion . . .

a year ago.

Note that AT&T has posted these record profits at a time of very public litigation.

A company with more than $3 billion in profits one quarter--only the most exorbitant and unlikely judgment could completely wipe it out. To assume that the telecoms would lose, and that their judges would then hand down such backbreaking penalties, is already to take several leaps.

The point, after all, has never been to financially cripple our telecommunications industry. The point is to bring checks and balances back to domestic spying. Setting that precedent would hardly require a crippling judgment.

It is much more troubling, though, that the Director of National Intelligence even feels the need to pronounce on ``liability protection for private sector entities.'' Since when were our spies in the business of economics? Since when did they put protecting AT&T or Verizon ahead of protecting the American people? Since when did the amount a defendant stands to lose have any bearing on whether a suit should go forward? I learned in law school that guilty was guilty--no matter how rich or how poor.

Lean on this logic, and you'll sink to its venal core: Certain corporations are too rich to be sued. Forget what they owe; forget what's just; forget judges setting the penalty. If there's even a chance of the judgment being high, throw the suit out--it endangers the Republic!

This administration has equated corporations' bottom lines with our Nation's security. Follow that reasoning honestly to its end, and you come to the conclusion: The larger the corporation, the more lawless it can be. If we accept Mr. McConnell's premises, we could conceive of a corporation so wealthy, so integral to our economy, that its riches place it outside the law altogether. And if the administration's thinking even admits that possibility, we know instinctively how flawed it is.

The truth is exactly the opposite: The larger the corporation, the greater the potential for abuse, and the more carefully it must be watched. Not that success should make a company suspect; companies grow large, and essential to our economy, because they are excellent at what they do. I simply mean that size and wealth open the realm of possibilities for abuse far beyond the scope of the individual.

Consider this. According to the Electronic Frontier Foundation,

Clear, first-hand whistleblower documentary evidence

[states] . . . that for year on end every e-mail, every text

message, and every phone call carried over the massive fiber-

optic links of sixteen separate companies routed through

AT&T's Internet hub in San Francisco--hundreds of millions of

private, domestic communications--have been . . . copied in

their entirety by AT&T and knowingly diverted wholesale by

means of multiple ``splitters'' into a secret room controlled

exclusively by the NSA.

If true, that constitutes one of the most massive violations of privacy in American history. And it would be inconceivable without the size and resources of an AT&T behind it--the same size that makes Mike McConnell fear the corporations' day in court.

If reasonable search and seizure means opening a drug dealer's apartment, the telecoms' alleged actions would be the equivalent of strip-searching everyone in the building, ransacking their bedrooms, and prying up all the floorboards. That is the massive scale we are talking about--and that massive scale is precisely why no corporation must be above the law.

On that scale, it is impossible to plead ignorance. As Judge Walker ruled:

AT&T cannot seriously contend that a reasonable entity in

its position could have believed that the alleged domestic

dragnet was legal.

But the arguments of the President's allies sink even lower. Listen to the words a House Republican leader spoke on Fox News. They are shameful:

I believe that they deserve immunity from lawsuits out

there from typical trial lawyers trying to find a way to get

into the pockets of American companies.

Mr. President, I ask unanimous consent for 1 more minute.

Cindy Cohn is one of those ``trial lawyers.'' She is lead counsel at the Electronic Frontier Foundation, a small public-interest law firm bringing suit against the telecom corporations. And when she heard that Fox News claim about typical greedy trial lawyers, she laughed.

If he still thinks that we're rich plaintiffs' attorneys

after he's visited our little tiny Mission Street offices,

[she said,] then I have a bridge to sell him. Most of the EFF

lawyers worked in those big fancy firms for big fancy

salaries, and took big pay cuts to join us . . .

Young lawyers come to me and say, ``I really want to work

for EFF--you have such great lawyers.''

I say: ``Take your current paycheck, rip it in three

pieces, take any third, and that's about what you'll get

working for EFF.'' The lawyers who work for EFF . . . are

making far less than they could on the open market in

exchange for being able to work in things they believe in

every day.

Consider the hundreds of lawyers retained by the corporations in question, and their multimillion-dollar legal budgets, and the attempt to portray them as pitiable Davids is ludicrous. Sprint's lawyers recently settled an unrelated class-action lawsuit for $30 million. Three years ago, AT&T handled a settlement with shareholders for $100 million.

With those resources, I think they can give EFF's nine nonprofit lawyers in their little office on Mission Street a fair fight.

Mr. President, I don't presume to know how that fight will end. I don't presume to hand out innocence and guilt--that's not my job. Judges and juries do that. And in their search for the truth, the only job of this body is to get out of the way.

I am not invested in one verdict or another--only that a verdict is reached. I don't care who the truth favors--only that it comes out at all.

State secrets; future cooperation; economic harms; reputational damage; legal burdens--as we've seen, not a single one of the President's arguments for this immunity stands. Nothing tells us to halt the legal process, to bar the courthouse door. Everything tells us to open it.

Mr. President, perhaps when I leave this floor today, someone will ask me, ``Why are you so agitated about some telephone records? There's so much else to be worked up about!''

And I'll only be able to respond: ``Exactly.''

We have seen this administration chip away at the rule of law at a dozen points. Its relentlessness may be its greatest strength--the assault becomes numbing, and our healthy outrage grows dull. It was an outrage when this President set up secret courts outside the law. It was an outrage when he ignored the courts and tapped our phones. It was an outrage when he sanctioned torture. But outrage upon outrage upon outrage--and we wind up in a stupor. We have allowed each abuse with nothing more than a promise to resist the next one--and the next one, and the next one.

I am here, in the end, because the line has to be drawn somewhere. Why not here? Why not today?

So, Mr. President, I urge my colleagues to reject the motion on cloture. Let them come back, strip this language out on immunity, and give us a clean FISA bill. That is the only right thing to do. The law is here to protect all of us. We can have security and liberty.

As Benjamin Franklin said some 200 years ago:

Those who would sacrifice liberty for security deserve

neither security nor liberty.

So I urge my colleagues to reject cloture, and then we can send the bill forward without that immunity provision.

Mr. President, I yield the floor.

Mr. President, reserving the right to object, is there a rule in the Senate that requires this?

Let me say this, further reserving the right to object, I will respectfully object at this time, and I will talk with the leader about that necessity. I don't want to set the precedent of insisting on 60 votes on a germane amendment. I will object at this point, and following that, the leader can make the request again.

Mr. President, I understand the 60-vote majority, but I have a germane amendment that strikes a provision in the bill. I understand the rules. When something is nongermane or violative of the rules of the Senate and you want to waive the rule, you have a supermajority requirement, but not on an amendment pertaining directly to the bill that strikes a section of it. I understand there is opposition to it, but having to reach a supermajority on an amendment that strikes something in the bill that is of significant disagreement seems to be excessive at this point.

This is an important piece of legislation, and the Judiciary Committee voted differently than the Intelligence Committee on this matter. We feel strongly about this. If I were offering something that is violative of the Senate rules, I would accept a supermajority. But to establish the precedent here that any amendment to be offered to this bill will be subjected to a supermajority vote I think is too excessive. That is my concern. Tell me I am wrong about that, that I am violating the rules of the Senate, and I will accept that. But if we are establishing that simply on any amendment that is different, I think that is a direction in which we should not go.

I have an amendment I would like to offer that strikes title II of the legislation. I am prepared to offer that. I know Senator Leahy talked about going first. I am prepared to follow whatever the Senate would like us to in order. I would like an opportunity to offer my amendment at some point. I told the leader that we can work out a time agreement. I wasn't quite ready to do it. I want to know how many people want to be heard. I will limit myself, but I want to get a vote. I am not looking for extended debate on my amendment.

Madam President, let me begin by thanking my colleague from California, Senator Boxer, not only for her generosity in giving me some additional time, but also for her comments regarding the underlying discussions on the FISA legislation and the provisions of the law before us for our consideration. I appreciate her comments and her thoughts on the subject matter.

I have already spoken at some length on FISA this morning, on these amendments, this new legislation before us, and my concern for what I consider to be the most egregious provision in this proposed legislation--that is, the retroactive immunity for the telecommunications industry that may have helped the President break the law. I have objected to that immunity on some very specific grounds because it would cover up an immense violation of trust, privacy, and civil liberties in our country.

This was not some small matter. It was not a one-time event. It went on for 5 years, in an elaborate and extensive way. But even more importantly, immunity is wrong because of what it represents. This is a fatal weakening of the rule of law which shuts out our independent judiciary and concentrates power in the hands of the executive.

FISA, as we have seen, was written precisely to resist that concentration. That the motivation in 1976-1978 when this legislation was drafted: making sure we could bridge this gap between security and rights, protecting both our security and our fundamental liberties. When we divide that power responsibly between the legitimate legislative, judicial, and executive branches, terrorist surveillance is not weakened; it is strengthened and made more judicious and more legitimate and less subject to the abuses that sap public trust.

But when millions of people, for over 5 years, had their private communications interrupted by the telecommunications industry, without a court order--which is what the law requires--the spirit of FISA has been undermined, and the public trust has been sapped. That, Mr. President, compromises our security.

I firmly believe, therefore, that any changes to FISA must be in keeping with its original spirit of shared powers, respect for the rule of law. If we act wisely, we can ensure terrorist surveillance remains inside the law and not an exception to it.

The Senate should pass a bill doing just that, and we will have the opportunity to do so; but the FISA Amendments Act, as it comes to us from the Intelligence Committee, is not that bill. Its safeguards against abuse, against the needless targeting of ordinary Americans, are far too weak. The power this bill concentrates in the hands of the administration is far too expansive.

However, the Senate also has before it a version of the bill that embodies a far greater respect for the rule of law. The version crafted by the Senate Judiciary Committee substituted a completely new title I and was reported out on November 16. Both versions of the bill authorize the President to conduct overseas surveillance without individual warrants. Let me repeat that: both bills--both versions of the bill authorize the President to conduct overseas surveillance without individual warrants.

Madam President, I see my colleague from California arriving on the floor, so I will yield the floor to her. I will ask when I come back to pick up my remarks as if uninterrupted, when the Senator from California completes her remarks; or the Senator from Missouri may have some thoughts on this legislation, and I will be more than happy to yield to him, as well, before coming back to the remarks I was in the midst of giving.

But I appreciate the opportunity to address the subject of retroactive immunity, which is the reason I am here on this matter today. So I look forward

to hearing from the Senator from California, and I am withholding my time, and I yield the floor.

Mr. President, will my colleague yield?

Mr. President, I wish to commend the Senator from Massachusetts for his statement this afternoon. He has captured the essence of all this and the importance of the issue in

Title II. He made very many good points. But one point he made said it all: that the President of the United States would veto the FISA legislation if he does not get immunity for the phone companies. This administration would risk the entire law--a law designed to improve our surveillance of terrorists, while respecting privacy--simply to protect a handful of companies. Those are the lengths to which President Bush is prepared to go.

I think the Senator from Massachusetts made this point, but it is worth repeating: Not every company did what the administration asked them to do. There were those that stood up and said: ``No. Give me a court order, and I will comply under the law.'' They should be commended for what they did.

For those that said, ``We were just doing our patriotic duty,'' their legal departments were not made up of first-year law students. They knew what the law was. Yet they may have violated it and are now seeking immunity.

So I commend my colleague. I am going to offer--when I get a chance-- an amendment that strikes title II from the legislation. I hope every Senator here supports it. This ought not be about party or ideology. It is about our Constitution.

The FISA law is a good law. It has protected us for almost 30 years. But it should not sanction retroactive immunity for a handful of phone companies that eavesdropped on millions of people's conversations.

So I commend my colleague for his words.

Mr. President, if I may further inquire of my colleague from Massachusetts, I was intrigued to learn how many the Washington Post recorded. I heard no one argue with these numbers. One of the arguments we have heard is that the FISA Court may not have been willing to agree with these court orders to the phone companies--not that that argument was even remotely legitimate.

The Washington Post reports that over the years, there have been over 18,000 requests for FISA court orders. Of those more than 18,000 requests, 5 have been rejected--5. So with over 18,000 requests, for 99.9 percent of those requests, that court has acquiesced to administration appeals 99.9 percent of the time.

So the idea this court was somehow going to serve as an obstruction to the administration's desire to get legitimate information is certainly belied by the statistics. I point that out to my colleague.

I was in the midst of giving some remarks earlier, and my colleague from California, Senator Feinstein, came on the Senate floor. I know she wanted to share her thoughts, so I yielded the floor to her to allow her to speak. I see my friend and colleague from Missouri is here. I know we have gone back and forth. I understand how this works. I don't know if he has some remarks he wants to give.

Fine.

Mr. President, on this last point: obviously we are in public session, and the last thing I want to do is have the Senator from Oregon talk about what is in these documents; he cannot do that. But I am struck by the passion with which he just spoke about those documents and the value of having Members of this body see them, particularly considering the vote we are about to cast.

If this bill is adopted with retroactive immunity, then this issue disappears; it goes away forever. There will be no court proceedings, nothing. We will never have the opportunity to know until, perhaps, some of these documents might be released decades down the road under the Freedom of Information Act.

But I am struck by the Senator's passion in arguing that if people read these documents and saw them, they would have a very difficult time supporting the provision in this bill that grants retroactive immunity. Is that the suggestion the Senator has made by those comments?

As a senior member of the Foreign Relations Committee, I do not have the right to see these documents?

Mr. President, with 26 years in the Senate and as a senior member of the Foreign Relations Committee, I do not have the right to see these documents?

Mr. President, I thank my colleague from Oregon. I thank him for his eloquent statement and for his admonition as well about the importance of these documents and how relevant they are to the discussion--and the inability of most of us here to have any idea what is in them. I admire the Senator from Oregon for insisting on his right to see them and therefore sharing with us at least in general terms the substance of those documents and their relevance to the request for seeking retroactive immunity, going back 5 years. I think his comments should carry great weight with our colleagues on both sides of the aisle. As he has pointed out so many times, these issues should never be associated with partisan debate.

The idea of striking that balance between security and protecting the rights of individuals was exactly the motivation for the original FISA legislation almost 30 years ago. As the Senator from Massachusetts, Mr. Kennedy, pointed out, there have been 30 modifications to that legislation over 30 years in order to make it relevant. As the world changed and technology improved, it was important to modify that legislation so we would have the capacity to minimize the threats against our Nation.

Earlier today, Mr. President, I began some comments and interrupted them when I allowed the Senator from California, Mrs. Feinstein, to make her remarks. I want to pick up where I left off.

Mr. President, both versions of the bill--that is, the version prepared by my friend from West Virginia, Senator Rockefeller, and Senator Bond, and the version prepared by the Senate Judiciary Committee--authorize the President of the United States to conduct overseas surveillance without individual warrants. I think that needs to be repeated. You can conduct overseas surveillance without individual warrants. That is not the subject of the debate here at all. Both of these bills allow the President to submit his procedures for this new kind of surveillance for the review of the FISA Court--after those procedures are already in place. But only one version of the bill balances these significant new procedural powers with real oversight from the Congress and the courts, and that is the Judiciary Committee version.

I say respectfully that the version by the Intelligence Committee, I am afraid, is a bill of token oversight and weak protections for innocent Americans, and the Senate ought to vote it down. Specifically, the bill fails on five counts.

First, its safeguards against the targeting of Americans--its minimization procedures--are insufficient. It significantly expands the President's surveillance power, while leaving checks on that power unchanged. This version of the bill provides practically no deterrent against excessive domestic spying--no consequences if the court finds the President's minimization procedures, in fact, lacking. If his targeting procedures are found lacking, the President hardly has to worry; he can keep and share all the information he obtained, and he can continue his actions all the way through the judicial review process, which could take, of course, months.

It should be clear to all of us that real oversight includes the power to enforce. The Intelligence Committee's version of this bill offers us the semblance of judicial oversight but not the real thing. Imagine a judge convicting a bank robber and then letting him keep the loot as long as he promises to never, ever, ever do it again. That might as well be the bill before us. In fact, the bill before us would allow the President to immediately target anybody on a whim. Wiretapping could start even before the court has approved it. In this bill, oversight is exactly where the President would like it--after the fact.

Don't get me wrong: when a President needs immediate emergency authority to begin wiretapping, he should have it. If you need it immediately, you ought to get it immediately. I think all of us find that obvious. The question is what to do in those cases that aren't emergencies. In those cases, I believe there is no reason the court shouldn't give advice and approval beforehand. President Bush disagrees. He believes in a permanent emergency.

Second, the Intelligence Committee bill fails to protect American citizens

from reverse targeting--the practice of targeting a foreign person on false pretenses, without a warrant, in order to collect the information of the American on the other end of the conversation.

Admiral McConnell said:

Reverse targeting is not legal. It would be a breach of the

Fourth Amendment.

He is absolutely correct, of course, which is why it is so vital that this bill contain strong, enforceable protection against it. This bill doesn't have one.

Thirdly, this bill, while purporting to end warrantless wiretapping of Americans, might actually allow it to continue unabated. That is because it lacks strong exclusivity language--language stating that FISA is the only controlling law for foreign intelligence surveillance. With that provision in place, surveillance has a place inside the rule of law. Without it, there is no such guarantee.

Who knows what specious rationale of this or any other future administration might cook up for lawless spying? The last time, as we have seen, Alberto Gonzales laughably tried to find grounds for warrantless wiretapping on the authorization of force against Afghanistan. Those are the legal lengths to which the administration has proved it is willing and able to go.

What next? Without strong exclusivity language, that question will remain hanging over all our heads.

Fourth, unlike the Judiciary version of the bill, the Intelligence version lacks strong protections against bulk collection--the warrantless collection of all overseas communications, a massive dragnet with the potential to sweep up thousands or millions of Americans without cause. Today, bulk collection is infeasible, but Admiral McConnell said:

It would be authorized, if it were physically possible to

do so.

Before any administration has that chance, we should clearly and expressly prohibit such an unprecedented violation of privacy. This bill fails to do that.

Fifth and finally, this bill stays in effect until 2013, through the next Presidential term and into the next one. Compare that to the 4- year sunset in the Judiciary version. I believe that, when making such dramatic changes to the Nation's terrorist surveillance regime, we should err on the side of caution. Once the new regime has been tested, once its effectiveness against terrorism and its compromises of privacy have been weighed, we deserve to have this debate again. It will, I predict, be a much less speculative and more informed debate. The Judiciary bill is wise not to put it off any longer than necessary.

I oppose this legislation on these five counts for the same reason I oppose retroactive immunity--because when the President's power is strongest, the rule of law should be the strongest, as well. The Intelligence Committee's bill means more power and less law. It reduces court oversight nearly to the point of symbolism. It would allow the targeting of Americans on false pretenses. It opens us to new, twisted rationale for wireless wiretapping, the very thing it seeks to prevent. It could allow bulk collection as soon as the administration has the wherewithal to build such an enormous dragnet. And it sets all of these deeply flawed provisions in stone for the next 6 years.

In sum, this is entirely too trusting a piece of legislation. With its immunity, with its wiretapping provisions, it answers George Bush's, ``Trust me,'' with an all too eager ``Yes!''

I leave my colleagues with a simple question: Has that trust been earned?

I don't know how many of my colleagues have ever seen the wonderful movie ``A Man For All Seasons,'' the story of St. Thomas More. There is a wonderful scene in that movie in which More is asked whether he'd be willing to cut down every law in England to get his hands on the devil.

And More replies, absolutely not. ``When the last law was down, and the Devil turned 'round on you, where you hide, the laws all being flat? This country is planted thick with laws, from coast to coast-- Man's laws, not God's! And if you cut them down . . . do you really think you could stand upright in the winds that would blow then?''

Maybe we could find excuses for every one of this president's abuses of power: ``It was just a little overreach.'' ``You just have to give a little.''

But if you do that day after day, week after week, month after month, year after year, all of a sudden you look up to find that all of the laws have been cut down, that there is nothing to protect us from the winds. Before that day comes, Mr. President, we must draw a line. I am here today to draw it.

So I will do everything I can to see to it that this bill does not go forward. Unless retroactive immunity is struck, I will resist this bill with all the tools available to me as one Member of this body. We can do better than this.

This goes beyond ideology--or at least it should. We all care about the security of our country; the FISA law protects that security, and it protects our privacy at the same time, from those who would overreach.

We have struggled to strike that balance throughout our history. Today, it is more important than ever that we stand firm in our determination not to give up or erode these very rights that are critical for our security.

The idea that we can become more secure by giving up rights is fundamentally flawed. It needs to be addressed on every possible occasion. It is a dangerous notion. It is a totally false dichotomy. It needs to be defeated as an idea.

When we insist upon our rights, we only grow stronger. We know it can be done. For 30 years now, this law has worked well. It needs to be modernized, clearly, to protect us against those who also have access to modern techniques to do us great harm and injury. But this is not a battle between those who want to keep us secure and those who want to keep our rights. It is a battle about whether we understand that we are more secure precisely when we protect these rights.

A year ago, when the Military Commissions Act came up for a vote, I felt very strongly about it. I spoke against it. I voted against it. The idea of walking away from habeas corpus, the idea of allowing torture, the idea of walking away from the Geneva Conventions--I regretted deeply then that I didn't do what I am prepared to do today, and that is to vigorously fight against that legislation.

I think most of us today recognize what a great mistake that was, to give away those rights. I think most of us recognize how it hurt our country. I am determined not to let that happen again. As long as it takes, I will stand here and insist that we need to strip immunity out of this bill.

I am prepared to listen to ideas about putting caps on liability, to prevent the telecom companies from paying outrageous fees. But if we grant this immunity, we will never know whether their actions were right or wrong.

Then why not your medical records the next time? Why not your financial records? What is the difference? If I can reach in and listen to your phone conversation, why not grant immunity to someone who would like to know your medical records or financial records? Why not grant immunity to companies that would turn over those documents? Where do you stop? Where do you put your foot down and say, ``That is not right''?

Today it is the phone records. Today it is the phone conversations. It is e-mail traffic--without a warrant. So why not the next step? If we don't put our foot down and stand up, we will be faced with the argument that we have already granted it. We established the precedent; 75 Senators, Democrats and Republicans, agreed we ought to provide that immunity. That argument will be heard, as it has been heard on the Military Commissions Act.

I respect immensely the work of the people who spent a lot of time on these issues. But this is a critical moment. They don't happen every day; but this is an important one. This goes right to the heart of who we are. This is not about selling our souls. It is about giving them away, if we don't stand up for these rights.

So I look forward to continuing debate and discussion on this vital issue.

I withhold the remainder of my time.

Madam President, before my colleague leaves, I thank my colleague Senator Feingold for not only his statements today but for speaking eloquently about this issue, with which he has been deeply involved with for a long time. Drawing on his service on both the Intelligence and Judiciary Committees, he eloquently pointed out that these provisions are designed to guarantee exactly what FISA intended to provide the security of our country and the sanctity of our rights, simultaneously.

And the idea that these companies were acting out of patriotism and naive to the provisions of the law when the very same companies were involved in crafting that law 30 years ago says volumes. I thank Senator Feingold immensely for his work.

Madam President, first of all, I know others may want to speak as well, but let me take a few minutes, if I can, to share with my colleagues some of the background and information concerning my concern with Title II of this legislation.

I certainly agree with my friend and colleague from Virginia, the former chairman of the Armed Services Committee, that it is critically important we modernize FISA. The 30-year-old piece of legislation has served our country well, striking a balance between acquiring the intelligence we

need to protect our country and protecting us against the erosion of our rights. My main concern with the proposal, as many know, is Title II, the retroactive immunity provision. I am deeply concerned about the precedent it would set.

The telecoms' 5-year-old program only became public information because there was a whistleblower, Madam President, a gentleman by the name of Mark Klein, who was an employee of AT&T for more than 20 years. He was really responsible for us being aware of this program. Had it not been for Mark Klein stepping up, this story might have remained secret for years and years, causing further erosion of our rights. Mark Klein and others were principally responsible for coming forward and expressing their deep concerns.

I think it is important for my colleagues in this body to understand precisely what these telecom communities are doing at the behest of the Bush administration. Mark Klein was courageous enough to blow the whistle on one such program at AT&T's facility at 611 Folsom Street in San Francisco. When the government's warrantless surveillance program came to light in December of 2005, Mr. Klein realized he had unwittingly aided and abetted an extensive, untargeted spying program that may have violated the civil liberties of millions of Americans. In early 2006, Mr. Klein went public with evidence of this program, providing over 100 pages of authenticated schematic diagrams and tables detailing how AT&T diverted its customers' communications to a room controlled by the NSA, with sophisticated equipment inside capable of analyzing millions of customers' Internet activities and e-mails in real time. The following are Mr. Klein's own words as to what he saw.

For 5 years, the Bush administration's National Security

Agency, with the help of the country's largest

telecommunication companies, has been collecting your e-mail,

accumulating information on your web browser, and gathering

details on your Internet activity, all without warrants and

in violation of the United States constitution and several

Federal statutes and State laws. Even after the program was

exposed by The New York Times in December of 2005, the

President and other government officials consistently

defended the NSA's activities, insisting that the NSA only

collects communications into or from the United States where

one party to the communication is someone they believe to be

a member of al-Qaida or an associated terrorist organization.

But these claims are not true. I know they are not true,

because I have firsthand knowledge of the clandestine

collaboration between one giant telecommunications company

and the NSA to facilitate the most comprehensive spying

program in history. I have seen the NSA's vacuum cleaner

surveillance infrastructure with my own eyes. It is a vast

government-sponsored warrantless spying program. For over 22

years, I worked as a technician for AT&T. While working in

San Francisco in 2002, I learned that a management level

technician, with AT&T's knowledge, had been cleared by the

NSA to work on a special but secret project--the installation

and maintenance of Internet equipment in a newly constructed

secure room at AT&T's central office in San Francisco. Other

than the NSA cleared technician, no employees were allowed

in that room. In October of 2003, I was transferred to

that office and was in particular assigned to oversee

AT&T's operations. As part of my duties, I was required to

connect circuits carrying data to optical splitters, which

made a copy of the light signal. But the splitters

weakened the light signal causing problems I had to

troubleshoot. After examining engineering documents given

to the technicians which showed the connections of the

splitters, I discovered they were hard wired to a secret

room. In short, an exact copy of all traffic that flowed

through critical AT&T cables, e-mails documents, pictures,

web browsers, voice-over-Internet phone conversations,

everything, was being diverted to equipment inside the

secret room. In addition, the documents revealed the

technological gear used in their secret project, including

a highly sophisticated search component capable of quickly

sifting through huge amounts of digital data, including

text, voice, and images in real time according to

preprogrammed criteria. It is important to understand that

the Internet links connected to the splitters contained

not just foreign communications but vast amounts of

domestic traffic, all mixed together. Furthermore, the

splitter has no selectively abilities. It is just a dumb

device which copies everything to the secret room, and the

links going through the splitter are AT&T's physical

connections to many other Internet providers--Sprint,

Quest, Global Crossing, cable and wireless, and the

critical West Coast exchange point known as Mae West.

Since these networks are interconnected, the government

surveillance affects not only AT&T customer matters but

everyone else--millions of Americans. I also discovered in

my conversations with other technicians that other secret

rooms were established in Seattle, San Jose, Los Angeles,

and San Diego. One of the documents I obtained also

mentions Atlanta, and the clear inference and the logic of

this setup and the language of the documents is that there

are other such rooms across the country to complete the

coverage, possibly 15 or 20 more. So when reports of the

government's extensive wiretapping program surfaced in

December 2005, after I had left AT&T, I realized two

things: First, that I had been a witness to a massive

spying effort that violated the rights of millions of

Americans; and, second, that the government was not

telling the public the truth about the extent of their

unconstitutional invasion of privacy. In the spring of

2006, I became a witness for the Electronic Frontier

Foundation's lawsuit against AT&T. The New York Times, on

April 13, 2006, reported that four independent technical

experts examined the AT&T documents. All said that the

documents showed that AT&T had an agreement with the

Federal Government to systematically gather information

flowing on the Internet.

Now, Madam President, there is a further statement of telecommunication expert Brian Reid on AT&T whistleblower Mark Klein's revelations. Dr. Reid is currently the Director of Engineering and Technical Operations at Internet Systems Consortium, a nonprofit organization devoted to supporting a nonproprietary Internet.

Dr. Reid, who has taught at Stanford and Carnegie-Mellon Universities, was an early pioneer in the development of Internet and network technology and received numerous awards for his work in the field of information technology. I think Dr. Reid's expertise in telecommunications is vital to understanding the depth and breadth of the program found at AT&T's Folsom Street facility in San Francisco. Let me read from Dr. Reid's testimony.

I am a telecommunications and data networking expert who

has been involved in the development of several critical

Internet technologies. I was a professor of electrical

engineering at Stanford University and in computer science at

Carnegie-Mellon university west. I have carefully reviewed

the AT&T authenticated documents and declaration provided by

Mark Klein and the public redacted version of the expert

declaration of J. Scott Marcus both filed in the Hepping vs.

AT&T litigation. Provided the information contained in those

declarations and documents, with my extensive knowledge of

the international communications infrastructure and the

technology regularly used for lawful surveillance pursuant to

warrants and court orders, I believe Mr. Klein's evidence is

strongly supported of widespread untargeted surveillance of

ordinary people, both AT&T customers and others. The AT&T

documents describe a technological setup at the AT&T facility

in San Francisco. This setup is particularly well suited to

wholesale dragnet surveillance of all communications passing

through that facility, whether international or domestic.

These documents describe how the fiber-optic cables were cut

and splitters installed at the cut point. Fiber-optic cables

work just like ordinary TV splitters. One cable feeds in and

two cables feed out. Both cables carry a copy of absolutely

everything that is sent, and if the second cable is connected

to a monitoring station, that station sees all traffic going

over the cable. Mr. Klein stated the second cable was routed

into a room at the facility whose access was restricted to

AT&T employees having clearances from the NSA. The documents

indicate that similar facilities were being installed in

Seattle, San Jose, Los Angeles, and San Diego, and also a

reference to a somewhat similar facility in Atlanta. This

infrastructure is capable of monitoring all traffic passing

through the AT&T facility, some of it not even from AT&T

customers, whether voice or data or fax or international or

domestic. The most likely use of this infrastructure is

wholesale untargeted surveillance of ordinary Americans at

the behest of the NSA. NSA involvement undermines arguments

the facility is intended for use by AT&T in protecting its

own network operations. This infrastructure is not limited

to, nor would it be, especially efficient for target

surveillance or even untargeted surveillance aimed at

communications where one of the ends is located outside of

the United States. It is also not reasonably aimed at

supporting AT&T operations in security procedures. There are

three main reasons. The technological infrastructure is far

more powerful and expensive than that needed to do targeted

surveillance or surveillance aimed only at international or

one-end foreign communications. For example, it includes a

NARUS Norris 6400, a computer that can simultaneously analyze

huge amounts of information based on rules provided by the

machine operator, analyze the content of messages and other

information--not just headers or routing information--conduct

the analysis in real time, rather than after a delay, and

correlate information for multiple sources, multiple formats,

over many protocols and through different periods of time in

that analysis. The document describes a secret private

backbone network, separate

from the public network where normal AT&T customer traffic is

carried and transmitted. A separate backbone network would

not be required for transmission of the smaller amounts of

data captured by a targeted surveillance. You don't need

the magnitude of capacity doing targeted surveillance. The

San Francisco facility is not located near an entry point

for international communications that happen to be

transmitted through the United States, either through

undersea cable or via satellite. As a result, it would not

be a sensible place to locate a facility aimed at simply

monitoring traffic to or from northern countries.

I apologize for those rather elaborate statements from two rather technical people, but I thought it was important for our colleagues considering the matter before us that the information that broke this story did not just come from casual observers, but from highly skilled people who could comment on the rather broad use of this information. The idea that we are just focusing our attention on foreigners who might be engaged in activities threatening our existence of course is belied by the evidence provided by both of these very substantial witnesses.

I would like to maybe take another few minutes, if I can, to address some of the questions that have been raised by a number of people today in support of the retroactive immunity.

Let me state again, it is very important that we have the FISA legislation. It is very important that we have the modern means to maintain the technological advances to be able to trap and capture information that poses a risk to our country. No one here, I believe, is arguing against that. The question simply was, For 5 years, why didn't the telecommunications industry and why didn't the individuals in the Bush administration simply do what had been done more than 18,000 times before, and that is go and get a court order from the FISA Court?

Don't blame the NSA here. I have talked about them. The NSA is a Federal Government agency responsible for collecting the data. It was the administration officials here and the lawyers within these telecommunications companies who decided to avoid the law. The NSA officials whom I have dealt with over the years want to be able to operate within Federal statutes. Their job is not to draft the law but to gather intelligence.

The responsibility is on those in the administration responsible for granting this kind of legal authority without going to the FISA Court. And it is on the legal departments in these major communications companies for not understanding what they should know--and did know, I believe--and that is that they merely had to go to the FISA Court and get a court order, and the information sought by the NSA would be immune from any further legal proceedings. That is the issue. The law had been in place for three decades.

Those who are fighting immunity want an open debate on the balance of security and civil liberties. The President disagrees. He is saying: If you strike the immunity for these corporations, I will veto the bill. I find it remarkable that Members have worked hard over weeks to craft a bill to balance the needs of civil liberties and the ability to gather information, and the President is saying: I don't care if you have done all of that; if you don't protect these corporations from lawsuits, I am going to put the whole legislation at risk. It seems to me the immunity issue ought not dominate the decision the committees have made about what needs to be done to balance civil liberties and the need to gather information.

Mr. President, I see great danger in this immunity. It would replace the rule of law with the rule of secrecy.

Those who are fighting immunity offer open debate on the balance of security and civil liberties. But this President tells us that he knows best, that he has set the balance already and the rest of us do not need to worry our heads about it. I oppose immunity because I find that thinking to be dead wrong. The power at stake today--the power to spy, the power to invade privacy, the power to put one's friends outside the law--does not belong in the hands of any one individual, no matter how wise--and certainly not the hands of a President whose contempt for the law has been too obvious for too many years.

As we fight this immunity, that is what is at stake today. Not punishment. Not payback. Openness. Americans deserve to know what this President and these corporations have done to them, and we are never going to know that if this immunity is granted. We are never, ever going to know. It will be as if it never happened.

As a Member of this body for 26 years, a senior member of the Foreign Relations Committee, I don't have the right to even look at the relevant documents. Only a handful of people have the right to do it. So I am being asked, as a 26-year veteran of this Senate, serving on the Foreign Relations Committee, to grant blanket immunity to the President's favored corporations. I find that rather remarkable.

As you know, I have serious doubts about the legality of the corporations' actions, but I would never presume to come to this floor and render a verdict on them. I am not a judge. None of my colleagues are, either, nor is the President of the United States. Just as it would be absurd for me to declare the telecoms clearly guilty, it is equally wrong to declare them effectively innocent. That power belongs to the courts, to the coequal branch of government, the judiciary. To slam the courthouse door shut on American citizens seeking redress would be to forget the meaning of checks and balances in our system of governance altogether.

I believe in letting the courts do their job. It seems the President's allies only believe in the courts when the verdict goes their way. They offer any number of arguments for immunity, but one by one, they fail. They are false and often misleading. I would like to take a few minutes to look at those claims and their failures one by one.

First of all, immunity supporters argue that granting immunity is a Presidential prerogative. That was one of the arguments made by Alberto Gonzales. The answer to that is, of course, the fact is that this case belongs in the courts. The judiciary should be allowed to determine whether the President has exceeded his powers by obtaining wholesale access to the domestic communications of ordinary citizens without a court order. That is why the courts exist, to determine if the actions by the Chief Executive or the Congress are, in fact, appropriate and proper and legal.

Because the telecom corporations are intimately bound up with the President's warrantless wiretapping, immunity supporters are proposing that the President sit as a judge over himself. The administration's original immunity proposal protected not just telecommunications but everyone involved in the wiretapping program. In their original proposal, they wanted to immunize themselves.

Think about that. It speaks to their fear and perhaps their guilt, as well: their guilt that they had broken the law, and their fear that in the years to come, they would be found liable or convicted. They knew better than anyone else what they had done--they must have had good reason to be concerned!

Thankfully, executive immunity is not part of the bill before us, but the origin of immunity tells us a great deal about what is at stake here. That is, and always has been, a self-preservation bill.

Second, immunity supporters claim that only foreign communications were targeted, not Americans' domestic calls. For those who were listening, I just read two documents from an AT&T official of 22 years who was deeply involved in helping set up the very systems, and from Dr. Reid, who then analyzed all the materials that have been presented by Mark Klein to determine exactly how the system worked. The fact is clear: Firsthand evidence, authenticated by corporations in court, contradicts the claim. Splitters at the AT&T Internet hub in San Francisco diverted to a secret, NSA-controlled room every e-mail, every text message, every phone call, foreign and domestic, carried over the massive fiber-optic links of 16 separate companies.

Third, immunity supporters claim that the Intelligence Committee version of this bill actually does preserve a role for the judiciary. But, again, the fact is that the role would be empty. The Intelligence version of this bill would require the cases to be dismissed at a word from the Attorney General. The central legal questions raised by these cases would never be heard in court. The cases would never

be fully closed. We would never truly know what happened.

The fourth argument is that a lack of immunity will make the telecom industry less likely to cooperate with surveillance in the future.

However, in the 1970s, FISA compelled telecommunications companies to cooperate with surveillance. In fact, AT&T helped write this law some 30 years ago. But they could only get that cooperation from the telecommunications industry when it is warranted, literally where there is a court order. But if the court order is given, the cooperating telecom is immunized. No warrant, no immunity.

So cooperation in warranted wiretapping is not at stake today. Collusion in warrantless wiretapping is--and the warrant makes all the difference, because it is precisely the court's blessing that brings Presidential power under the rule of law.

The fifth argument immunity supporters offer is that the telecoms cannot defend themselves without exposing state secrets. But the fact is that Federal district court judge Vaughn Walker--I might point out, appointed by a Republican administration--has already ruled on this matter that the issue can go to trial without putting state secrets in jeopardy. Judge Walker reasonably pointed out that the existence of the President's surveillance program is all hardly a secret at all today. We are debating it here, and have been. It is has been in the discussion for weeks on end. You can't claim there is a secret about the surveillance program.

As Judge Walker said:

The Government has already disclosed the general contours

of the Terrorist Surveillance Program, which requires the

assistance of a telecommunications provider.

The sixth argument offered by supporters of immunity claims that telecom companies are already protected by common law principles.

But again, the fact is that common law immunities do not trump specific legal duties imposed by statute, such as the specific duties to protect customer privacy that Congress has long imposed on these telecommunication companies, going back almost 30 years.

In the pending case against AT&T, the judge has already ruled unequivocally, and I quote:

That AT&T cannot seriously contend that a reasonable entity

in its position could have believed that the alleged domestic

dragnet was legal.

Even so, the communication company defendants can and should, I believe, have the opportunity to present these defenses to the courts. I am not suggesting by that quote that there ought to be a predetermined verdict. As I said a moment ago, I am not pretending I am a judge here. All I am asking is that these cases go forward and a determination made as to whether they were legal. The defendants can and should have the opportunity to present these defenses to the courts; and the courts, not the Congress preemptively, should decide whether they are sufficient.

The seventh argument offered by the supporters of the retroactive immunity says that leaks from the trial might damage national security. We heard this argument from my good friend from Virginia, Senator Warner. But the fact is, our Federal court system has already dealt for decades with the most delicate national security matters, building up expertise in protecting classified information behind closed doors in what are called ex parte and in camera proceedings. We can expect, I think, no less in these cases as well.

If we are worried about national security being threatened as a result, we can simply get the principals a security clearance. No intelligence sources need be compromised; no state secrets need to be exposed. And we can say so with increasing confidence, because after the extensive litigation that has taken place at both the district court and circuit court levels on this matter already, no sensitive information has leaked out. I think it is a red herring to suggest somehow that you cannot go to court here when we have proved for decades the courts' ability to handle national security matters without leaking.

An eighth argument offered by immunity supporters claims that litigation will harm the telecoms by causing them ``reputational damage.'' The fact is there is no evidence that this legislation has reduced or would reduce the defendant companies' bottom lines or customer base. This morning I quoted from the Dow Jones Market Watch. The date is October 23, 2007, well after the reports were out about AT&T's involvement in the surveillance program.

Third quarter earnings rose 41.5 percent. Boosted by the

acquisition of BellSouth and the addition of 2 million net

wireless customers, AT&T's net income was $3.06 billion,

compared with $2.17 billion a year ago.

Hardly a company that is suffering reputational damage. AT&T has posted these record profits during a time of very public litigation. So the argument that reputational damage somehow prevents us from going forward has no basis in fact.

But moreover, to claim that ``reputational damage'' ought to trump our rights and liberties--I find it frightening that anyone in government would even make that argument. To say that a violation of millions of Americans' privacy over 5 years is outweighed by the potential for reputational damage is to show a rather extraordinary lack of balance when it comes to understanding the relative importance of these issues.

A ninth argument made by those in favor of retroactive immunity claims that these lawsuits could bankrupt the telecommunications industry. But the fact is that only the most exorbitant and unlikely judgment could completely wipe out such enormous corporations. To assume that the telecommunications industry would lose and that the judges would then hand down such back-breaking penalties is already to take several leaps from where we are today.

The point, after all, has never been to cripple our telecommunications industry; the point is to bring checks and balances back to domestic surveillance. Setting that precedent would hardly require a crippling judgment.

But on another level, immunity supporters are staking their claim on a dangerous principle: that a lawsuit can be stopped simply on the basis of how much a defendant stands to lose. The larger the corporation, in other words, the more lawless it could be. If we accept the immunity supporters' premises, we could conceive of a corporation so wealthy, so integral to our economy, that its riches place it outside the law altogether. And if the administration's thinking even admits that possibility, we know instinctively how flawed it is.

We see then none of those arguments for immunity stand up to the test. All nine of them fail.

I am not here again to render judgment on the telecom corporations. I have my doubts, but that's not why I'm here. All I am suggesting is that when you grant this kind of immunity once, what is to stop someone from making that argument again, in a later debate, when maybe someone will be asked to collect information about our medical histories or our financial records or some other personal matters? They would wave that vote back in our face: Democrats, Republicans found no difficulty in granting retroactive immunity for telecommunications surveillance; why would you object today when it comes to people's medical records, or their financial records, or other private information?

You start down that slippery slope, and nothing good can come of it. This ought not be a difficult debate.

So I am surprised and stunned to listen to some of my more conservative colleagues here. I used to associate conservative principles with standing up for privacy, a principle once held sacrosanct. It is rather stunning to me today to listen to some of the more conservative Members argue for retroactive immunity, that somehow it was all right for those companies to do what they did. I hear that they did not know any better, that somehow they got drawn into this by mistake. If that were true of every one of them, well, maybe that point would have a little more weight. But there were companies such as Qwest that said, ``No, give me a court order, and then I will comply.'' Why did the Qwest lawyers arrive at a different decision? Was it a great secret within the telecommunications industry that there were those who said no? Why did Qwest say no and others say yes? I believe they understood the law, and they realized that without a court order they could not legally comply with that request.

I might point out that no court order was ever forthcoming. Why did not the administration seek that court order for Qwest to get additional information? Why did they drop that kind of request? I might point out, as I did earlier today, that over the years, I am told by The Washington Post, there have been over 18,000 requests of the FISA Court for court orders, and of more than 18,000 requests, only 5 have been rejected. 99.9 percent of the requests by administrations for court orders over the years in the FISA Court have been granted.

Why would you not ask? Why did they not go forward and make that request? Why did Qwest say no? Why did the others say yes? Why are we granting immunity to these companies, without going through the courts of law to determine what is right?

Again, this ought not be a debate between Democrats and Republicans and conservatives and liberals. It ought to be a debate about defending these basic rights we have here in America. Companies that may have violated them deserve their day in a court of law. But immunizing them for a program that went on for not for a day or two or a week or 6 months or even a year, but for 5 years and only stopped when exposed by a whistleblower ought to cause all of us to pause. Clearly we want to keep our country safe, but if we are being asked to keep our country safe by giving up our rights, then we are granting these jihadists and terrorists victories far beyond anything they have yet achieved.

As tragic as the events of 9/11 were, if we begin to undo our own liberties and rights, we give them a success far beyond anything they could have ever imagined. I have been here today for the last 8 hours, and I will stay here for as long as it takes.

At the appropriate time, when we have exhausted the ability to talk about it generally, I will offer the language to strike it, and I hope my colleagues will join me in that effort. But I am determined not to let this go forward, because I think we have done that too often. I myself have been guilty of accepting far too much from this administration. Just one small thing is at issue today. But then I start to look back at all of the small things that have been done, so- called ``small things'' over the last 5 or 6 years--most recently, the destruction of interrogation tapes at the CIA. And the combined weight of these ``small things'' truly frightens me.

What was going on at the CIA? Why did that happen? Why Abu Ghraib? Why Guantanamo? Why get rid of habeas corpus? Why bring back waterboarding? Why do away with the Geneva Conventions? Why nominate someone to be the Attorney General who believes that Presidents have the right to violate Federal statutes here under the guise of protecting the Nation's security?

Why, after each one of those these things? Why the Military Commissions Act? In case after case after case, we see the slow erosion going on. And again, regardless of what your politics are, regardless of where you find yourself on the spectrum, when our basic rights are involved, we must stand up and say, ``Enough!''

A generation ago, Members of this body sat here, and had only one negative vote as they worked out the original FISA law, that balance between our needs to protect our security and to protect our rights. Here we are about to make a major step in the opposite direction. And those gentlemen faced tough times. They were wrestling with the threat of nuclear war in the 1970s. The Soviet Union still existed. They had been through World War II, many of them, Korea and Vietnam. They knew what hostility and difficulty were like. And yet Democrats and Republicans came together and wrote that legislation. On 30 separate occasions since then they modernized it to keep pace with the changes occurring throughout the world, where new risks and new dangers are posed every day. So yes, we should modernize FISA and bring it up to date. I applaud the committees' efforts to do so. But to add retroactive immunity, to grant blanket immunity to companies that listened in on millions of people in this country without a court order, is a step too far.

Listen to the remarks of our colleague from Massachusetts today in talking about the legal counsel of this administration. Their words: to blow through these laws. They did not like them? Blow through them! That was their attitude. Well, I am going to stop the blowing through. No more blowing through the laws. Not here, not tonight, not this Member, not on this bill. No more blowing through the law!

You do not get immunity, not as long as I can stand here and fight this. I intend to do just that.

Madam President, I withhold the remainder of my time, and I suggest the absence of a quorum.

Mr. President, will the Senator yield for a question?

I say to my colleague from Florida, I appreciate immensely his leadership on so many issues, but especially on the committee itself. I was stunned by the number of requests made of the FISA Court over the years for court orders to various entities. There have been over 18,000 granted court order requests and 5 rejections in 25 years. Some have argued a fear that we might not get an approval by the FISA Court, but in 99.9 percent of the times that Presidents of both parties over the years or administrations have sought the approval of the FISA Court for a court order to seek information, in only 5 cases over more than 25 years have those requests been rejected.

I thank the Senator from Florida for raising the point. This is not about denying our agencies the opportunity, the ability, the means by which they gather information to keep us secure; it is merely saying so that in the process of doing so, there is a way of doing this, which grants them the opportunity to do that while simultaneously protecting our basic liberties. So I thank the Senator from Florida.

Mr. President, I note the absence of a quorum.

Mr. President, I thank my colleague from Ohio for his continuing efforts here. He is not a newcomer at

all to these issues. I thank him for his words, support, and knowledge of the issue, and his continuing efforts to see if we can get a good bill out of here and not add extraneous matters such as this.

As I heard Senator Nelson of Florida talk earlier, I thought--I think many of us thought that had this been a day or a week after 9/11, we might have found the telecoms' actions more understandable. In the heat of emergency, we might have accepted some excessive aggression. I can understand people drawing that conclusion.

But this program went on for 5 long years. The idea that we grant retroactive immunity for actions over 5 long years goes way beyond anything anybody ought to accept in this body.

Retroactive immunity, under these circumstance, would be a massive step backward in light of this administration's assault on the Constitution and the rule of law. Again, I thank my colleague from Ohio.

Before he leaves the floor, I wish to thank the Democratic leader. He has a very difficult job under any circumstances. To people who ask: What is it like to be the leader in the Senate, I often describe it as trying to keep frogs in a wheelbarrow. It always gets a pretty good reaction when I mention that. He has a lot of frogs to deal with around here. Trying to keep us all moving in the same direction is not easy.

As Mo Udall once said: I walked into a barber shop in New Hampshire and said: I am Mo Udall, and I am running for President. And the barber said: We were just laughing about that.

But I wished to thank the leader. This is an awkward time, obviously, and I wanted to get the bill done. I think Senators Rockefeller and Bond did a good part of this bill, and it is worthy of our support.

The leader knows my longstanding concerns over this retroactive immunity. There is significant debate about this, and I feel strongly about it. I will look forward to coming back in January, and hopefully between now and coming back, maybe there would be some suggestions on how we might ease some of the concerns people have and satisfy them, without necessarily granting retroactive immunity.

I know there are various ideas kicking around, some sort of a compromise idea that may be worked out. Certainly, there will be some time to think about this so we can avoid this when it comes back again. I appreciate the fact we are not going to proceed with it now. That gives us a chance to work on this some more. We have at least some time, I think the end of January or early February before the law will expire, so we have some time to come back and deal with this again. I appreciate the fact we are not going to have to go forward. I would have been put in a position to contest this in every possible way, utilizing all the tools available to us, and I am very grateful to the leader for moving on. I promise I certainly will be willing to listen to various ideas how we can resolve this, so when we come back here, this will be a matter we can deal with more expeditiously, but I am very grateful to him for giving me an opportunity to make my case.

Mr. President, I see the majority whip as well. I just want to take a couple of minutes and conclude my thoughts on this matter, since we will be moving on.

Americans have rightfully been concerned since before World

War II about the dangers of hostile foreign agents likely to

commit acts of espionage. Similarly, the violent acts of

political terrorists can seriously endanger the rights of

Americans. Carefully focused intelligence investigations can

help prevent such acts.

But too often intelligence has lost this focus and domestic

intelligence activities have invaded individual privacy and

violated the rights of lawful assembly and political

expression. Unless new and tighter controls are established

by legislation, domestic intelligence activities threaten to

undermine our democratic society and fundamentally alter its

nature.

Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, I thank the Senator from Alabama for his courtesy.

Mr. President, I oppose cloture on the motion to proceed to S. 2248, as reported by the Senate Intelligence Committee. This bill is deeply flawed, and I am very disappointed by the decision to take it up on the Senate floor rather than the better bill reported by the Judiciary Committee.

Before leaving town for the August recess, Congress bowed to pressure from the administration, and vastly expanded the Government's ability to eavesdrop without a court-approved warrant. That legislation, the so-called Protect America Act, 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 there was one silver lining: The bill had a 6-month sunset to force Congress to do its homework and reconsider the approach it took.

The Senate should be taking this opportunity to fix its mistakes and pass a new bill that gives the Government all the tools it needs to spy on suspected terrorists but also protects Americans' basic freedoms. This time around, the Senate should stand up to an Administration that time and again has employed fear-mongering and misleading statements to intimidate Congress.

The fact is, the Intelligence Committee bill doesn't fix those mistakes, and it is not the bill we should be considering on the Senate floor.

I do agree with the administration on one point--Congress should make clear that when foreign terrorists are communicating with each other overseas, the U.S. Government doesn't need a warrant to listen in, even if the collection activity ends up taking place in this country because of the way modern communications are routed. Unfortunately, both the Protect America Act and the bill approved by the Senate Intelligence Committee go far beyond fixing that problem and also authorize widespread surveillance involving Americans--at home and abroad.

The bill we should be considering is the Judiciary Committee bill, which 14 Senators urged the majority leader to take up, in a letter last week.

The Judiciary Committee bill made critical improvements to ensure independent judicial oversight of these sweeping new powers and to better protect innocent Americans. The Judiciary bill does not contain a new form of retroactive immunity for companies that allegedly cooperated with an illegal wiretapping program that lasted for more than 5 years. And, while the Intelligence Committee bill was drafted and debated behind closed doors and in close consultation with the administration, the Judiciary bill was the product of an open process with the input of experts from a variety of perspectives.

The Judiciary Committee bill is not perfect. It needs further improvement. But it would be a vastly better starting point for Senate consideration than the bill that the majority leader has brought to the floor, which simply gives the administration everything it was demanding, no questions asked.

The stakes are high. I want my colleagues to understand the impact that the Protect America Act and the Intelligence Committee bill could have on the privacy of Americans. These bills do not just authorize the 6 unfettered surveillance of people outside the United States communicating with each other. They also permit the Government to acquire those foreigners' communications with Americans inside the United States, regardless of whether anyone involved in the communication is under any suspicion of wrongdoing.

There is no requirement that the foreign targets of this surveillance be terrorists, spies or other types of criminals. The only requirements are that the foreigners are outside the country, and that the purpose is to obtain foreign intelligence information, a term that has an extremely broad definition.

There is no requirement that the foreign targets of this surveillance be terrorists, spies, or any other kind of criminal. The only requirements are that foreigners are outside the country, that the purpose is to obtain foreign intelligence information, a term that has an extremely broad definition.

No court reviews these targets individually. Only the executive branch decides who fits these criteria. The result is that many law- abiding Americans who communicate with completely innocent people overseas will be swept up in this new form of surveillance, with virtually no judicial involvement.

Even the administration's illegal warrantless wiretapping program, as described when it was publicly confirmed in 2005, at least focused on particular terrorists. What we are talking about now is a huge dragnet that will sweep up innocent Americans.

In America, we understand that if we happen to be talking to a criminal or terrorist suspect, our conversations might be heard by the Government. But I do not think many Americans expect the Government to be able to listen into every single one of their international communications with people about whom there are no suspicions whatsoever.

These incredibly broad authorities 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 common, for many Americans to make an overseas call. But now, particularly with e-mail, such communications are commonplace. Millions of ordinary, and innocent, Americans communicate with people overseas for entirely legitimate personal and business reasons.

Parents of children call family members overseas. Students e-mail friends they have met while studying abroad. Businesspeople communicate with colleagues or clients overseas. Technological advancements combined with the ever interconnected world economy have led to an explosion of international contacts.

We often hear from those who want to give the Government new powers that we just have to bring FISA up to date with new technology. But changes in technology should also cause us to take a look at the greater need for the privacy of our citizens.

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. We can do that, as the Senator from Connecticut said, without sacrificing our ability to collect information that will protect our national security.

To take one example, a critical difference between the Intelligence and Judiciary bills is the role of the court. The Judiciary bill gives the secret FISA Court new authority to operate as an independent check on the executive branch.

It gives the court authority to assess the Government's compliance to wiretapping procedures, to place limits on the use of information that was acquired through unlawful procedures, and then gives the court, as most courts should have, the ability to enforce its own orders.

The Judiciary bill also does a better job of protecting Americans from widespread warrantless wiretapping. It prohibits so-called bulk collection. What is that? Vacuuming up basically all the communications between the United States and overseas, which the DNI admitted is legal under the PAA. And it ensures that if the Government is wiretapping a foreigner overseas in order to really collect the communications of the American with whom that foreign target is communicating, what is called reverse targeting, well, in that case it has to get a court order on that American. Well, none of these changes hinders the Government's ability to protect national security.

The process by which the Judiciary Committee considered, drafted, amended, and reported out its bill was an open one, allowing outside experts and the public at large the opportunity to review and comment. With regard to legislation so directly connected to the constitutional rights of Americans, I think the result of this open process

should be accorded great weight, especially in light of the Judiciary Committee's unique role and expertise in protecting those rights.

Now, I am certain that over the course of this week we will hear a number of arguments about why the Judiciary bill will hamper the fight against terrorism. Well, let me say now to my colleagues: Do not believe everything you hear. Last week I sat with many of you in the secure room in the Capitol and listened to arguments made by the Director of National Intelligence and by our Attorney General.

I can tell you with absolute certainty that several of the examples they gave were simply wrong, simply false. I am happy to have a classified meeting with anyone in this body who wishes to discuss that. This is not about whether we will be effective in combating terrorism. Both bills allow that. This is about whether the court should have an independent oversight role and whether Americans deserve more privacy protections than foreigners overseas. All of this should sound familiar to those who followed previous debates about fighting terrorism while protecting American's civil liberties in the post-9/11 world.

The administration says--and again, following on what the Senator from Connecticut said--the administration basically says: Trust us. We do not need judicial oversight. The court will just get in our way. You never know when they might tell us what we are doing is unconstitutional. We would prefer to make that decision on our own.

Time and again, that has proved to be a foolish and counterproductive attitude, and sadly, despite the objections of many of us in this Chamber, too many times, Congress has just gone along. We do not have to make that same mistake again. In this case we have a factual record to help us evaluate whether we should simply trust the administration or whether we should write protections into the law.

The Protect America Act has only been in effect for 4\1/2\ months, and we are still missing key information about it. The Intelligence Committee has recently been provided some basic information about its implementation. Based on what I have learned, I have very serious questions about the way the administration is interpreting and implementing the Protect America Act, including its effect on the privacy of Americans.

I will shortly be sending the Director of National Intelligence a classified letter detailing my concerns which are directly relevant to the legislation we are considering. I regret this information is classified, so I cannot discuss it here. I regret that more of my colleagues have not been privy to this information prior to this floor debate, but I would be happy to share a copy of my letter in an appropriate classified setting with any Senator who wishes to review it.

I have been speaking for some time now about my strong opposition to the Intelligence Committee bill, and I have not even addressed one of the more outrageous elements of the bill: the granting of retroactive immunity to companies that allegedly participated in an illegal wiretapping program that lasted for more than 5 years.

This grant of automatic immunity is simply unjustified. There is already an immunity provision in current law that has been there since FISA was negotiated in the late 1970s, with the participation of the telecommunications industry.

The law is clear. Companies already have immunity from civil liability when they cooperate with a Government request for assistance, as long as they receive a court order or the Attorney General certifies that a court order is not required and all statutory requirements have been met.

So this is not about whether the companies had good intentions or acted in good faith; it is about whether they complied with this statutory immunity provision, which has applied for 30 years. If the companies follow that law, they should get immunity. If they did not follow that law, they should not get immunity. A court should make that decision, not Congress. It is that simple.

Congress passed a law laying out when telecom companies get immunity and when they do not for a reason. Those companies have access to our most private communications, so Congress has correctly subjected them to very precise rules about when they can provide that information to the Government. If the companies did not follow the law Congress passed, they should not be granted a ``get out of jail free'' card after the fact.

We have heard a lot of arguments about needing technical cooperation of carriers in the future. We do need that cooperation, but we also need to make sure carriers do not cooperate with illegitimate requests. We already have a law that tells companies when they should and when they should not cooperate, so they are not placed in the position of having to somehow independently evaluate whether the Government's request for help is legitimate.

Mr. President, I ask unanimous consent for 3 additional minutes.

I would not object to that.

Instead of allowing the courts to apply that law to the facts, instead of allowing judges to decide whether the companies deserve immunity for acting appropriately, the Intelligence Committee bill sends the message that companies need not worry, they do not have to worry about complying with questionable Government requests in the future, because they will be bailed out. This is outrageous. Even more outrageous is the fact that if these lawsuits are dismissed, the courts may never rule on the NSA wiretapping program.

So what this is is an ideal outcome for an administration that believes it should be able to interpret laws on its own without worrying about how Congress wrote them or what a judge thinks. For those of us who believe in three independent and coequal branches of Government, this is a disaster.

For all of these reasons, I oppose closure on the motion to proceed to the Intelligence Committee bill. I fear we are about to make the same mistake we made with the PATRIOT Act. We passed that law without taking the time to consider its implications, and we did not do enough during the reauthorization process to fix it. As a result, three Federal courts have struck down provisions of the PATRIOT Act as unconstitutional, and that is right back where we are going to end up if we do not do our jobs now and fix the Protect America Act.

I urge my colleagues to vote no on cloture.

I yield the floor and reserve the remainder of our time.

Madam President, this morning I laid out the reasons why I opposed cloture on the motion to proceed. Now I would like to describe in more detail the reasons that the Senate should be considering the Judiciary bill rather than the Intelligence Committee bill. And I will lay out again why I strongly oppose the immunity provision in the Intelligence Committee bill.

There are a number of similarities between the bills reported by the Intelligence and Judiciary Committees. Their basic structure is the same. Both bills authorize the Government to conduct surveillance of individuals reasonably believed to be overseas without court approval for individual warrants. Both bills authorize the Government to develop and implement procedures to govern this new type of surveillance, and provide the procedures to the FISA Court for review after they have gone into effect.

But in critical ways, the bills take different approaches. The Judiciary bill contains a number of important changes to improve court oversight of these broad new executive branch authorities, and to protect the privacy of law-abiding Americans.

Let me be clear: The differences between these two bills have nothing to do with our ability to combat terrorism. They have everything to do with ensuring that the executive branch adheres to the rule of law and doesn't unnecessarily listen in on the private communications of Americans.

This debate is about whether the court should have an independent oversight role, and what protections should apply to the communications of Americans that get swept up in these broad new surveillance powers.

If you believe that courts should have a meaningful oversight role with respect to Government surveillance, then you should support the Judiciary bill. And if you believe that Congress should try to limit the number of communications of Americans here at home that will be swept up in a broad new surveillance program that is supposed to be focused on foreigners overseas, then you should support the Judiciary bill.

That said, the Judiciary bill is not perfect. More still needs to be done to protect the privacy of Americans. But that is why it should be such an easy decision to support the Judiciary bill as a starting point.

Let me also remind my colleagues that the process by which the Judiciary Committee considered, drafted, amended and reported out its bill was an open one, allowing outside experts and the public at large the opportunity to review and comment. With regard to legislation so directly connected to the constitutional rights of Americans, the results of this open process should be accorded great weight, especially in light of the Judiciary Commiittee's unique role and expertise in protecting those rights.

So what are the differences between the two bills?

First, the Judiciary bill gives the secret FISA court more authority to operate as an independent check on the executive branch.

One provision in the Judiciary bill fixes an enormous problem with the Intelligence Committee bill--the complete lack of incentives for the Government to do what the bill tells it to do, which is target people overseas rather than people here in America. The Judiciary bill solves this problem by limiting the use of information concerning Americans when that information is obtained through procedures the FISA Court ultimately finds are not reasonably designed to target persons overseas.

The Judiciary bill states that if the court determines that the Government has been using unlawful procedures, then its use of that information is limited--in exactly the same way that it is limited under FISA today if the Government starts surveillance in an emergency and is later turned down for a court order. But the new provision in the Judiciary bill is more flexible: It gives the court the option to allow the use of the information the Government collected the first time around, depending on the circumstances.

Another provision of the Judiciary bill ensures that the FISA Court has the authority to oversee compliance with minimization procedures.

Minimization procedures have been held up as the primary protection for the privacy of Americans whose communications get swept up in this new surveillance authority.

I don't think current minimization procedures are strong enough to do the job. But to the extent that minimization can help protect Americans' privacy, its implementation needs to be overseen by the court. That means giving the court the authority to review whether the Government is complying with minimization rules and to ask for the information it needs to make that assessment. Without this provision from the Judiciary bill, the Government's dissemination and use of information on innocent, law-abiding Americans will occur without any checks and balances whatsoever. Once again, ``trust us'' will have to do. I believe in this case, as in so many others, ``trust us'' is not enough.

The Judiciary bill furthers other types of oversight, as well. It requires relevant inspectors general to conduct an audit of the President's illegal wiretapping program, which is long overdue.

And it improves congressional access to FISA Court orders. The Intelligence Committee bill requires that Congress be provided with orders, decisions and opinions of the FISA Court that include significant interpretations of law within 45 days after they are issued. That is good as far as it goes, but the Judiciary bill adds that Congress should be provided with pleadings associated with opinions that contain significant interpretations of law. These pleadings may be critical to understanding the reasoning behind any particular interpretation as well as how the Government interprets and seeks to implement the law. It also requires that significant interpretations of law not previously provided to Congress over the past 5 years be provided.

The Judiciary bill also does a better job of protecting Americans from widespread warrantless wiretapping.

First, it protects against reverse targeting. It ensures that if the Government is wiretapping a foreigner overseas in order to collect the communications of the American with whom that foreign target is communicating, it has to get a court order on the American. This is very reasonable. Specifically, the Judiciary bill says that the Government needs an individualized court order when a significant purpose of its surveillance is listening to an American at home. The DNI himself said that reverse targeting violates the Fourth Amendment; this provision simply codifies that principle. The administration continues to oppose this provision, and I have a simple question for it: ``Why?'' Why is it opposed to a provision that prohibits a practice that its own Director of National Intelligence says is unconstitutional?

The Judiciary bill also prohibits bulk collection--that is, the sweeping up of all communications between the United States and overseas. The DNI said in public testimony that this type of massive bulk collection would be permitted by the Protect America Act. But he has also said that what the Government is seeking to do with these authorities is something very different. It is ``surgical. A telephone number is surgical. So, if you know that number, you can select it out.'' If the DNI has said it doesn't even need broader authorities, we should certainly should not be providing them.

All this modest provision does is hold the DNI to his word. It ensures that the Government has some foreign intelligence interest in individual targets, and is not just vacuuming up every last communication between Americans and their friends and business colleagues overseas. Targets do not need to be known or named individuals; they can be anonymous phone numbers, which is how the DNI has described how the Government collects. And the Government does not have to identify or explain its interest in the targets to the FISA Court; it merely has to make a general certification that individual targets exist. Again, why does the administration oppose this provision? I have yet to hear a convincing answer.

The Judiciary bill also has a sunset of 4 years rather than 6 years, ensuring that Congress will reevaluate this law before the end of the next Presidential administration. And, critically, it contains a strong statement that Congress intends for FISA to be the exclusive means by which foreign intelligence surveillance is conducted. It closes purported statutory loopholes that the Justice Department relied on to make its tortured arguments that the congressional authorization for use of force against al-Qaida somehow authorized the President's illegal wiretapping program. The Judiciary bill makes clear, once and for all, that the President must follow the law.

Madam President, the Judiciary bill also does not contain the provision in the Intelligence Committee bill granting automatic, retroactive immunity to companies that allegedly cooperated with the President's illegal NSA wiretapping program. I supported an amendment to strike the immunity provision in the Intelligence Committee when it was offered by the Senator from Florida, Mr. Nelson--I offered an amendment to strike the immunity provision in the Judiciary Committee-- and I will cosponsor Senator Dodd's amendment to strike the immunity provision on the Senate floor. The immunity provision does not belong in this bill.

Granting immunity, first of all, is unnecessary. Current law already specifically 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. This current FISA immunity provision, contained in 18 U.S.C. Sec. 2511, already protects companies that act at the request of the Government, while also protecting the privacy of Americans' communications by assuring that immunity is granted only if the law is followed.

Some supporters of immunity argue that companies should not be penalized for relying in good faith on the legality of a request from the executive branch. This argument ignores the history of FISA. Private companies have a long history of receiving requests for assistance from the Government, and they worked with Congress when FISA was first enacted to devise a law that tells them exactly which Government requests they should honor. They also have experienced, well-trained lawyers to examine the written requests they receive from the Government and determine whether those requests comply with the clear requirements of the law or not.

The idea that telephone companies could not have foreseen that the Government might overstep the law makes no sense. FISA's requirement of a court order or a valid certification was designed precisely to respond to Government abuses that took place in the 1960s and 1970s, and to prevent such abuses from occurring in the future.

The Judiciary Committee heard testimony from Mort Halperin, a former Nixon administration official who had himself been the subject of a warrantless wiretap, and was involved in drafting FISA in the 1970s. He testified that before FISA:

Government communication with the telephone company . . .

could not have been more casual. A designated official of the

FBI called a designated official of [the company] and passed

on a phone number. Within minutes all of the calls from that

number were being routed to the local FBI field office and

monitored.

Not surprisingly, this casual, ad hoc system failed to protect Americans' privacy; the abuses that took place are well documented and quite shocking. FISA was supposed to give everyone involved a level of certainty about what was permitted and what was not. And the provision specifying the circumstances under which a Government request could be honored, in particular, was supposed to play a significant role in ensuring that certainty. AT&T, which was the only telephone company in existence at the time, was at the table when this provision was drafted. As Halperin described it in his testimony, the company:

received the clarity that it sought and deserved. The rule,

spelled out clearly in several places in the legislation and

well understood by all, was this: If [the phone company]

received a copy of a warrant or a certification under the

statute, it was required to cooperate. If it did not receive

authorization by means outlined in the statute, it was to

refuse to cooperate and was to be subjected to State and

Federal civil and criminal penalties for unlawful acquisition

of electronic communications.

This is the history. This is why we have the FISA statute. This is the whole point.

This history should give all of us pause as we consider the immunity provision in this bill. 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. Perhaps more importantly, it will undermine any new laws that we pass to govern Government surveillance.

If we want companies to follow the law in the future, it sends a terrible message, and sets a terrible precedent, to grant a new form of retroactive, blanket immunity for alleged cooperation with an illegal program. We not only want companies to follow the law, we want the Government to follow the law. If we don't give the companies a solid basis for refusing to respond to a Government request that falls short of statutory requirements, we take away the incentive for the Government to follow the law. It would be irresponsible for Congress to allow this to happen.

It is time for Congress to state clearly and unequivocally: ``When we pass a law, we mean what we say and we expect the law to be followed.'' But if we grant immunity to companies that may have broken the law, the message we send will be quite the opposite. We will be effectively making compliance with the law optional. We will be saying: ``If a high Government official asks you to ignore the law, go ahead. Congress can always change the law retroactively so you won't pay any penalty for your lawbreaking.'' I ask my colleagues to think long and hard about this as they consider this amendment. Is that the message that we really want to send?

This retroactive immunity provision presents another serious problem.

It could very well prevent the courts from ruling on the administration's warrantless wiretapping program. That may explain why the administration is pushing so hard for this part of the bill. This program is one of the worst abuses of executive power in our Nation's history, and the courts should be able to rule on it once and for all. For Congress to step in and likely wipe out the pending court cases, when the administration has stonewalled congressional oversight efforts for so long, would be an unacceptable capitulation to an administration that thinks it is above the law.

Finally, I must emphasize that a vote to strike immunity is not a vote to hold telephone companies liable. Rather, it is a vote to let the courts decide whether the existing immunity provisions apply. If telephone companies received a directive from the Government and complied with well-established law, the courts will find that they are entitled to immunity and these cases will be dismissed. But if they failed to follow the law that applied specifically to them--a law they helped create and a law that their lawyers knew inside and out--we will have done American citizens a grave injustice by saying that sometimes it is just plain OK to break the law.

In other words, Congress should not prejudge the guilt or innocence of the companies, especially without knowing the facts. Unfortunately, most of the Members of this Chamber have not had access to those facts. The members of only two committees have had the opportunity to study what happened. I happen to sit on both committees, and after seeing all the evidence, my firm view is we should leave this to the courts to decide under existing law. But it is wrong for the administration to ask my colleagues who do not serve on these committees to vote for immunity. They are effectively being asked to grant immunity without being told for what they are granting immunity. This is fundamentally unfair.

The Senate can stand up for the rule of law and let the courts handle these cases as they see fit, or it can decide to change the rules in the middle of the game and block accountability for possible past law breaking. Voting to preserve retroactive immunity means they are blessing the behavior of the administration and the companies that allegedly cooperated with it. I urge my colleagues not to take that step.

Before I close, I wish to respond briefly to the comments made by the vice chair of the Intelligence Committee concerning the President's so- called inherent constitutional power to order surveillance. Relying on a nonbinding statement made in passing in a FISA Court of Review decision on another issue and a 1980 circuit court case that addresses surveillance before FISA was passed, the vice chairman asserts that the President has inherent constitutional authority to wiretap without a court order.

I am afraid to say that argument is an invitation to lawlessness. What he basically said is that because in his view the President has wiretapping authority that cannot be limited by statute, a company that complies with his request for assistance cannot be held accountable, no matter how unreasonable the request was. If that is the case, then Congress may as well pack up and go home because the laws we pass don't matter.

Congress has spoken very clearly in FISA and limited Presidential power to conduct surveillance. Congress had the authority to take this action, and the courts have never upheld an assertion of Presidential power over statutory restriction in a case where Congress has acted within its authority. In this case, the President must follow the law that Congress passes, and so should the telecommunications companies.

Madam President, how much time do I have remaining?

I ask unanimous consent to yield my remaining time to Senator Dodd.

Madam President, I thank the Senator from Connecticut for his kind words, and I thank him for his important leadership on this issue. What he is doing today is extremely helpful to the preservation of the rule of law in this country.

Mr. President, I have listened very closely to the remarks of my dear friend from Connecticut. I have a lot of respect for him. However, it was an easy thing for 13 members of the Senate Select Committee on Intelligence to vote to grant retroactive immunity to companies that patriotically

adhered to legal letters to provide the means whereby we might be able to protect citizens in this country and perhaps all over the world.

Because of that work, we have been able to protect this country in ways that most people will never know because this area is one of the areas that we don't talk about. It is, this whole area, highly classified. We can talk about the law here.

Close inspection of the lawsuits against the telecoms reveals dubious claims. The plaintiffs have confused speculation for established facts. This is dangerous and the continuation of these lawsuits could lead to serious consequences for our national security.

It is very simple--Congress should not condone oversight through litigation.

A quick scan of what plaintiffs seek in many of these cases should send a chill down our spine. They are not, as many are suggesting, simply saying: ``You went along with the President's Terrorist Surveillance Program, now give us money.'' Rather, the lawsuits seize on the President's brief comments about the existence of a limited program to go on a fishing expedition of NSA activities. But this is really worse than a fishing expedition; this is draining the Loch Ness to find a monster. Sometimes what you are looking for just doesn't exist.

The lawsuits represent irrational fears of Government conspiracy, and seek to expose classified information, regardless of who is harmed in the process.

We all realize that the sources and methods our intelligence community utilizes to conduct surveillance are highly classified. The risks that classified details could be revealed through these lawsuits are severe. Remember, the very point of these lawsuits is to prove plaintiffs' claims by disclosing classified information.

Our enemies have tough decisions to make regarding how they communicate. They can't stay silent forever, and they have to weigh the need to communicate against the chance that their communications are intercepted. Given this, they are carefully watching us and reading every proceeding to see how our government collects information. If they think they see a weakness in our collection capabilities, they will certainly try and take advantage of it.

Given the legitimate problems that these lawsuits pose, the Senate Intelligence Committee adopted a bill which will alleviate them. The committee worked in a bipartisan manner to craft an immunity provision that met the needs of Congress, the Government, and the American people.

In an overwhelmingly bipartisan tally, the committee voted to include retroactive immunity for service providers that were alleged to have cooperated with the intelligence community following 9/11. Senators from both sides of the aisle, after careful consideration, came to this conclusion. Make no mistake, this was the right conclusion.

It was the right conclusion for the Intelligence Committee, and it should be the right conclusion for the full Senate today.

Our Senate Intelligence Committee has already noted that the intelligence community cannot obtain the intelligence it needs without the assistance of these companies. It goes without saying, companies in the future will certainly be less willing to assist the Government if they face the threat of extremely costly lawsuits each time they are alleged to have provided assistance.

The companies will shy away. Their attorneys will scour future Government requests, feverishly looking for any technicality to avoid compliance. And even if these private attorneys approve future participation, the company will have to listen to cautious stockholders, whose financial interests will undoubtedly make them adamantly opposed to situations which could lead to any financial risk or exposure.

But let's be clear: The telecoms are not threatening anyone. They are not saying ``do this, or we will never help you again.'' But, they don't need to say these things for us to understand the obvious. If the financial foundations of these companies crumble due to frivolous litigation, they will rebuild it to withstand future Government requests that may again lead to their collapse.

Now some have asked a valid question: If the companies did not break the law, why do they need immunity? Quite simply, the Government's assertion of the state secrets privilege prevents these companies from defending themselves.

This assertion by the Government is absolutely essential, as the possible disclosure of classified materials from ongoing court proceedings is a grave threat to national security. Simply put, you don't tell your enemies how you track them. This is why the NSA and other Government agencies won't say what they do, how they do it, or who they watch. Nor should they! To confirm or deny any of these activities, which are at the heart of the civil lawsuits, would harm national security. We should not discuss what our capabilities are.

Given the necessity for the state secrets privilege, the drawback is that the companies being sued are forbidden from making their case. In fact, the companies cannot even confirm or deny any involvement in the program whatsoever. They have no ability to defend themselves, and that is after patriotically doing what has to be done to protect each and every citizen in this country.

Ordinarily, these companies would be able to address allegations and make their case. However, the classified nature of the topic means the companies are not free to do so. They cannot even have discussions with shareholders or business partners.

But we need to remember, lawful silence does not equate to guilt. There is no guilt here. These are companies that cooperated with the Federal Government in helping us track terrorists to protect our citizens.

The identities of any company that assisted the Government following the attacks of September 11 are highly classified. While there have been numerous allegations, they are nothing more than accusations. If the identities of these companies are revealed and officially confirmed through litigation, they will face irreversible harm: harm in their business relations with foreign governments and companies and possible harm to their employees both here and abroad, who are truly soft targets for terrorist attacks.

My admiration and respect for the companies that did their part to defend Americans is well known. As I have said in the past, any company that assisted us following the attacks of 9/11 deserves a round of applause and a helping hand, not a slap in the face and a kick to the gut.

When companies are asked to assist the intelligence community based on a program authorized by the President and based on assurances from the highest levels of Government that the program has been determined to be lawful and necessary, they should be able to rely on those representations. For those who argue we need a compromise, let me be clear: We already have a compromise. The Government certainly wanted more than what is represented in this Intelligence Committee bill. And they did not get all they wanted. I think they should have. The chairman of the Senate Select Committee on Intelligence stated the following in the Intelligence Committee report:

This immunity provision is not the broad and vague immunity

sought by the administration. The committee did not endorse

the immunity provision lightly. It was the informed judgment

of the Committee after months in which we carefully reviewed

the facts in this matter. The Committee reached the

conclusion that the immunity remedy was appropriate in this

case after holding numerous hearings and briefings on the

subject and conducting a thorough examination of the letters

sent by the U.S. Government to the telecommunications

companies.

That is after numerous top-secret Intelligence Committee hearings. The immunity provisions in this bill are limited in scope. Not everyone will be happy with them, and that is the whole point. I, for one, wanted to see more protections for companies and Government officials in this bill. But I am willing to accept a compromise. My colleagues should be willing to do the same.

We are not all getting what we want. We are getting what the public needs for its protection. I will continue to oppose any efforts to weaken the Rockefeller-Bond immunity provision.

For nearly 2 months, Congress and the public have had the ability to review the immunity provisions in this

bill. Today we are hearing a great deal about how the Intelligence and Judiciary Committees handled the immunity provision. So let's look at how they voted.

The Intelligence Committee rejected an amendment to strip immunity from the bill, 12 to 3, and the committee voted to favorably report the bill, including the immunity provision, 13 to 2.

In addition, the Judiciary Committee rejected an amendment to strike the immunity provision from the bill, 12 to 7. What do all those votes have in common? They supported immunity and they were bipartisan. How many times are we going to hear about alternatives to S. 2248 which simply do not address the problem? How many trial balloons are going to be released? The first alternative we heard was the Government should indemnify the companies following possible adverse rulings in the cases.

There are myriad reasons why this option was lacking. The idea of indemnification apparently was not well received, as we now hear very little discussion of it. So let us call indemnification the first trial balloon to pop.

The next alternative we heard was the Government should be substituted in place of the companies being sued. But this alternative was full of problems, given that there is no way to remove the companies from the litigation. Remember, it is their very conduct that is in question. In order to try to prove their claims, plaintiffs will continue to seek discovery, including: document requests, depositions, interrogatories, technical data, trade secrets, proprietary company information and confidential, secret and highly classified information and the list goes on and on.

Obviously, the companies would still face many burdens of litigation, even though they are not parties because the Government is substituted for them.

This idea has also been skeptically viewed and the Judiciary Committee on Thursday rejected an idea in a resounding 13 to 5 bipartisan vote. So let's call Government substitution the second trial balloon to pop.

Now we are hearing another alternative which would dramatically expand the jurisdiction of the Foreign Intelligence Surveillance Court, and utilizes ambiguous terms such as ``objectively reasonable belief.''

The FISA Court was not created to review classified programs or the conduct of private companies. This new proposed alternative would completely revise the mission of the FISA Court, putting them in a role they have not had in their nearly 30 years of existence. This judicial expansion should be the third trial balloon to pop.

How long are we going to entertain inadequate alternatives and appease fringe political groups? Is it not time that we embrace the bipartisan compromise that puts the interest and safety of Americans over political interests? How long will it take? Are we willing to take that stand?

Let me also take a few minutes to unequivocally state my opposition to the Judiciary substitute. One of the basic requirements of any FISA modernization proposal is we should not have any provisions which could be interpreted as requiring warrants to target foreign terrorists overseas.

Quite simply, foreign terrorists living overseas should never receive protections provided by the fourth amendment to the Constitution. The Constitution never contemplated that. One of the controversial provisions added in the Judiciary Committee relates to ``reverse targeting.'' Reverse targeting is the practice of targeting a foreign person when the real intention is to target a U.S. person, thus circumventing the need to get a warrant for the U.S. person.

Reverse targeting has always been unlawful, in order to protect the communications of U.S. persons. Now, contrary to what most people believe, the legal definition of ``U.S. person,'' is not limited to U.S. citizens. See this chart: What is a U.S. person?

An ``alien lawfully admitted for permanent residence,'' a

``corporation which is incorporated in the United States.''

Now, that is according to 50 U.S.C. 1801. The U.S. person definition includes aliens lawfully admitted, legal residence, legal permanent residence. A U.S. person is also defined as a business incorporated within the United States.

From an intelligence-gathering standpoint, reverse targeting makes no sense. From an efficiency standpoint, if the Government was interested in targeting an American, it would apply for a warrant to listen to all the American's conversations, not just his conversations with a terrorist overseas.

But let's not let logic get in the way of a good conspiracy theory. Even though reverse targeting is already considered unlawful, a provision is included in the Intelligence bill which makes it explicit. This provision is clearly written and universally supported. However, the Judiciary Committee passed an amendment by a 10-to-9 partisan party-line vote which altered the clear language of that provision.

Now, where before the provision said you cannot target a foreign person if the purpose is to target a U.S. person, the new language adds the ambiguous term ``significant purpose.''

Now, words have meaning and in this context have very serious meaning. If this amendment becomes law, an analyst would now have to ask himself this question when targeting a terrorist overseas: Is a ``significant purpose'' of why I am targeting this foreign terrorist overseas the fact that the terrorist may call an airline in America to make flight reservations or a terrorist with a green card living in the

To my distinguished colleagues, I urge you to support the bipartisan Rockefeller-Bond compromise bill, one that has been superbly debated within the Intelligence Committee and has been carefully thought out.

It provides protections to civil liberties and ensures that technological changes do not outpace our laws.

I wanted to personally pay tribute to the distinguished Chairman of the Intelligence Committee and the distinguished Vice Chairman. They know what they accomplished in the Intelligence Committee was very important, and it should be followed by us on the floor.

We cannot even begin to talk about some classified issues on this floor. We cannot even begin to talk about the dangers that will come from going beyond that bill that passed 13 to 2 in the Senate Intelligence Committee. I refuse to place our country at risk. I refuse to do anything that would make our country be at risk. I suggest to you that if we follow the Judiciary Committee bill, I think we would be doing exactly that.

Mr. President, I reserve the remainder of my time, and I yield the floor.

I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, on numerous occasions in the FISA debate, we have seen dramatic fear mongering. Many individuals, particularly on partisan blogs, are spreading misleading and malicious information in order to incite fear of alleged governmental activities. This bill should not include text which panders to people who believe in imaginary Government conspiracies. There is such a thing as irrational fear of Government.

Let's not forget, our Government did not kill thousands of innocent Americans on September 11. Our Government did not kill hundreds of people in car bombings in U.S. embassies in Kenya and Tanzania. Our Government did not kill 191 people in the Madrid train bombings. Our Government did not kill 52 people in the London train bombings. Our Government did not kill 202 people in suicide bombings Bali, Indonesia. The indisputable fact is terrorists have committed heinous attacks on Americans and have pledged themselves to conduct more. It is not politics of fear to acknowledge this. If we bury our heads in the sand and pass legislation that ignores these risks, we make ourselves and all our people more vulnerable. I will not stand by and see Congress pass laws which could create vulnerabilities for our people, vulnerabilities which expose our families and our friends to danger.

Let me tell you what our Government does to protect us. It hires the finest men and women of this great country to utilize their skills to help prevent these types of attacks. Our job in Congress is to make sure these people who have sworn to defend us have the necessary tools to try and prevent terrorist attacks. What they don't need are laws with ambiguous language, as has been proposed, making their jobs more difficult.

One of my colleagues previously stated:

The authority in this bill greatly expands the Government's

ability to conduct surveillance of foreign targets.

How in the world he can make that statement, I don't understand. The only great expansion I see in this bill is judicial jurisdiction. In fact, I am amazed we don't rename the bill the unlimited expansion of judicial authority act. We have advocated so much new responsibility for the Foreign Intelligence Surveillance Court that I wonder whether people realize that court is composed of only 11 judges. Where is this great expansion in surveillance authority that has been argued on the floor?

Since FISA was passed in 1978, the Government has been able to target terrorists overseas. This bill amends FISA so we can continue to target foreign terrorists when they utilize communications over a wire, not just communications over radio or satellite. This does not sound to me like a great expansion. Maybe that is why the Government has continued to say FISA needed to be ``modernized,'' not that it needed to be greatly expanded. There is, however, a key expansion in the bill. It is a statutory warrant requirement when targeting U.S. persons, regardless of who they are, what they have done or where they are located. Notice I said U.S. persons, not U.S. citizens. This idea may sound great to everyone, but we should realize, with eyes wide open, what this means. We have heard some individuals claim the Government could use the power of the Protect America Act to spy on innocent Americans. We have heard the fear

mongering that the Government can spy on innocent Americans when they travel overseas. We have heard all about American families on vacation overseas in the Caribbean or in Europe. We have even heard our Government could spy on American military members who are overseas defending our country.

I find these scare tactics not only ridiculous but extremely offensive. They walk a fine line in seemingly questioning the integrity and the judgment of these fine men and women who work for us and who don't have a political agenda, who have dedicated their professional lives to prevent catastrophic attacks on Americans. Do we think our intelligence analysts are sitting around waiting for the Smith family to go on their family vacation to Italy so they can tap their cell phones? Give me a break. To imply that our country's intelligence analysts are more concerned with random innocent Americans than foreign terrorists overseas is a slap in the face to the people who protect our Nation. Our Government is focusing their attention on terrorists who wish us death, not on innocent Americans.

When some decry the lack of statutory protection for Americans overseas in the Protect America Act, I wonder if they realize the 1978 FISA law itself provides no statutory protections for Americans overseas. Yet we have called that the gold standard all these years. I would, however, tell my colleagues that Americans overseas are protected by the most important document in the history of our great Nation, and that is the U.S. Constitution. The fourth amendment to the Constitution provides protection from unreasonable search and seizure. That is the question. Is it always unreasonable for the Government to target an American overseas without a court order? Of course not. I would suggest the process that has worked for 26 years is the best approach. It is Executive Order 12333. Since 1981, the Government could only target Americans overseas if the Attorney General determined via probable cause that the American was an agent of a foreign power. Do we think an intelligence analyst is going to disregard an executive order and wiretap innocent Americans overseas? Of course not.

Now, with the policy change included in both the Intelligence and Judiciary bills, I want to give an example of how this provision will apply in real life.

Adam Gadahn is an American citizen from Orange County, CA. He is also one of the FBI's most wanted terrorists now believed to be living overseas. He has been indicted for treason and providing material support to al-Qaida. Here is what he said:

The streets of America shall run red with blood . . .

casualties will be too many to count and the next wave of

attacks may come at any moment.

He has appeared on multiple al-Qaida propaganda tapes. Here is another quote:

The magnitude and ferocity of what is coming your way will

make you forget all about September 11.

Here is something that should make all Americans scratch their heads. Before September 11, the Government would not need a warrant to target this criminal. After September 11, the Government would not need a warrant to target Gadahn. But after this bill is signed, the Government will be required to get a warrant to target Gadahn. This bill does require that.

Let's explain that one to the American public.

Would a warrantless interception of Gadahn's communications be ``unreasonable'' under the fourth amendment? Of course not. But we are requiring something that even the Founding Fathers did not--a warrant for all electronic searches of U.S. persons.

Now I understand the administration is willing to accept a modified version of this amendment that does not include unintended consequences. It is yet another example of how far this proposal goes to satisfy determined detractors who never seem to be satisfied that we are doing enough to ``protect'' innocent Americans.

I am also amazed at the false descriptions floating around the Internet of the program which the President described on December 17, 2005, during a radio address. We have all heard the terms: ``warrantless wiretapping'' or ``domestic spying.'' But let's look at what the President actually said during his radio address on December 17, 2005. This is what he said:

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 Qaeda and

related terrorist organizations. Before we intercept these

communications, the government must have information that

establishes a clear link to these terrorist networks.

Now I do not see anything in this 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 the calls were not domestic.

Here, as shown on this chart, is a call from the United States of America to overseas; or a call from overseas to the United States of America. Is that a domestic call? I hardly think so. Is this such a hard concept to grasp? The last time I flew overseas, I did not fly on a domestic flight. I flew on an international flight. ``Domestic spying'' may sound catchy and mysterious, but it is a completely inaccurate way to describe the terrorist surveillance program. Why don't the partisan blogs describe it as ``international spying''? Isn't that a more accurate description? I guess accurate descriptions take a back seat to terms which incite fear and distrust in our Government.

Since so many are so interested in the opinion of the FISC, or the Foreign Intelligence Surveillance Court, on these matters, I wish to draw attention to a recent decision. On Tuesday, the Foreign Intelligence Surveillance Court denied a motion by the ACLU for release of court records related to alleged NSA surveillance programs. This FISC opinion was publicly released, which is only the third time in the entire history of the FISC in which this has occurred.

Given the rarity of this event--this issued public opinion that denied a motion by the ACLU for the release of court records related to alleged NSA surveillance programs--I want to highlight a few sentences from that ruling:

[T]he identification of targets and methods of surveillance

would permit adversaries to evade surveillance, conceal their

activities, and possibly mislead investigators through false

information. Public identification of targets, and those in

communication with them, would also likely result in

harassment of, or more grievous injury to, persons who might

be exonerated after full investigation. Disclosures about

confidential sources of information would chill current and

potential sources from providing information, and might put

some in personal jeopardy. Disclosure of some forms of

intelligence gathering could harm national security in other

ways, such as damaging relations with foreign governments.

All these possible harms are real and significant, and, quite

frankly, beyond debate.

Now, that is in re: Motion for release of court records of the U.S. Foreign Intelligence Surveillance Court, December 7 of this year.

I think we can all agree this is a vitally important public opinion from the FISA, and I commend it to my colleagues.

Regardless of how we came to this moment, it is time to do what is right for our country. The time has come for us to work together. We all know it is going to take bipartisan support to get this legislation passed. Let's represent our constituents with our heads held high, knowing we are doing our very best to balance the necessity for protections of civil liberties with the need to keep American families safe from deadly attacks. We owe our people this much.

I hope we can continue to work, as the Intelligence Committee did, in a bipartisan way to resolve these very difficult problems. I have to say that the 13-to-2 bipartisan approach is one of the highlights of this year. It is probably the best example of bipartisanship we have this year. I have to tell you, to try to change that with some of the language from the Judiciary Committee--where it was a pure partisan vote on both sides--to try to change that is not the way to do it.

So I hope our colleagues will realize that in the Intelligence Committee, in a bipartisan way, we have worked together to come up with the ways of solving these very technical and difficult problems, and to do so in the best traditions of the intelligence community, in the best traditions of gathering intelligence information, and in the best traditions of protecting our

country that this country has ever known.

Frankly, I compliment the distinguished chairman of the Intelligence Committee, the distinguished vice chairman of the Intelligence Committee, and my fellow Senators on the committee, Democrats and Republicans, who were willing to put partisanship aside and pass that bill 13 to 2 out of that committee.

Mr. President, I notice my dear friend from Florida is desirous to speak on the floor, so I will withhold my further remarks and turn the time over to him.

I yield the floor.

Mr. President, will the Senator yield on that point?

Mr. President, I thank my colleague for his kind remarks. He was one of the Senators who helped to put this bill together, and a distinguished Senator at that.

Would the Senator agree with me that should this bill pass, it would be one of the best illustrations of bipartisanship in this whole Congress so far?

Mr. President, I am troubled by the FISA bill that has come to the Senate floor. Since I introduced the original FISA legislation over 30 years ago, I have worked to amend the FISA law many times, and I believe that this bill is not faithful to the traditional balance that FISA has struck. This bill gives the executive branch vast new authorities to spy on Americans, without adequate guidance or oversight. Americans deserve better.

I voted ``yes'' on the motion to proceed to consideration of this bill because I believe this legislation is too important to hold up any longer. The House has already passed a new FISA bill, and the Senate needs to do the same. But let me be clear, the Senate should reject the bill that we have before us. We need to pass the Judiciary Committee version instead.

The Foreign Intelligence Surveillance Act is one of our landmark statutes. For nearly three decades, it has regulated Government surveillance in a way that protects both our national security and our civil liberties and prevents the Government from abusing its powers. It is because FISA enhances both security and liberty that it has won such broad support over the years from Presidents, Members of Congress, and the public alike. It is important to remember that before this administration, no administration had ever resisted FISA, much less systematically violated it.

When the administration finally came to Congress to amend FISA after its warrantless wiretapping program was exposed, it did so not in the spirit of partnership, but to bully us into obeying its wishes. The Protect America Act was negotiated in secret at the last minute. The administration issued dire threats that failure to enact a bill before the August recess could lead to disaster. Few, if any, knew what the language would actually do. The result of this flawed process was flawed legislation, which virtually everyone now acknowledges must be substantially revised.

I commend the members of the Intelligence Committee for their diligent efforts to put together a new bill. They have taken their duties seriously, and they have made some notable improvements over the Protect America Act.

But their bill is deeply flawed, and I am strongly opposed to enacting it in its current form. This bill fails to protect Americans' constitutional rights and fundamental freedoms.

There are many problems with the bill.

It redefines ``electronic surveillance,'' a key term in FISA, in a way that is unnecessary and may have unintended consequences.

Court review occurs only after the fact, with no consequences if the court rejects the Government's targeting or minimization procedures.

It is not as clear as it should be that FISA and the criminal wiretap law are the sole legal means by which the Government may conduct electronic surveillance.

Its sunset provision is December 31, 2013. For legislation as complicated, important, and controversial as this, Congress should reevaluate it much sooner.

The bill purports to eliminate the ``reverse targeting'' of Americans, but does not actually contain language to do so. For instance, it has nothing analogous to the House bill's provision on reverse targeting, which prohibits use of the authorities if ``a significant purpose'' is targeting someone in the United States.

It does not fully close the loophole left open by the Protect America Act, allowing warrantless interception of purely domestic communications.

It does not require an independent review and report on the administration's warrantless eavesdropping program. Only through such a process will we ever learn what happened and achieve accountability and closure on this episode.

Add it all up, and the takeaway is clear: This bill is inconsistent with the

way FISA was meant to work, and it is inconsistent with the way FISA has always worked.

The Judiciary Committee's FISA bill shows that there is a better way. The Judiciary Committee's version is faithful to the traditional FISA balance. It shares the same basic structure, but it addresses all of the problems I listed above. The Judiciary bill was negotiated in public, which allowed outside groups and experts to give critical feedback. It was also negotiated later in time than the Intelligence bill, meaning we had the benefit of reviewing their work.

Like the Intelligence Committee's bill, the Judiciary Committee's version also gives the executive branch greater authority to conduct electronic surveillance than it has ever had before. Make no mistake, it too is a major grant of power to the intelligence community. But unlike the Intelligence Committee's bill, the Judiciary Committee's version sets some reasonable limits that protect innocent Americans from being spied on by their Government without any justification whatever.

No one should lose sight of how important title I of FISA is. The rules governing electronic surveillance affect every American. They are the only thing that stands between the freedom of Americans to make a phone call, send an e-mail, and search the Internet, and the ability of the Government to listen in on that call, read that e-mail, review that Google search. In our ``information age,'' title I of FISA provides Americans a fundamental bulwark against Government tyranny and abuse. If we enact the title I that is now before us, we will undermine that bulwark.

Unfortunately, the exact same thing would be true if we enact the Intelligence Committee's title II.

The Nation was shocked to learn earlier this month that the CIA had destroyed videotapes showing employees using severe interrogation techniques. The willful destruction of these tapes by the CIA obviously raises serious questions involving obstruction of justice.

But this is not the only coverup that the administration has been involved in lately. President Bush has been demanding that Congress grant retroactive immunity to telecommunications companies that cooperated with the administration's illegal surveillance program. He wants us to pretend that this whole episode never happened.

I oppose granting any form of retroactive immunity to these companies, and I urge my colleagues to support the amendment to strike title II from the FISA bill. Amnesty for telecommunication companies may help the administration conceal its illegal spying, but it will not serve our national security, and it will further undermine the rule of law.

Let's not forget why we are even talking about this issue. At some point in 2001, the Bush administration began a massive program of warrantless spying. New reports suggest that the administration began its warrantless spying even before 9/11. The administration never told Congress what it was doing. In clear violation of the FISA law and in complete disdain for the fourth amendment, it also never told the FISA Court what it was doing.

Because the Bush administration secretly ignored the law, we still do not know how deeply this program invaded the privacy of millions of innocent Americans. The push for immunity by this administration is a push to avoid all accountability for a wiretapping program that was a massive violation of the law.

FISA has been in force for 29 years. It was designed from the beginning to allow flexibility in pursuing our enemies. It was enacted with strong bipartisan support in 1978, and it has been amended on a bipartisan basis some 30 times since then. It has enhanced Americans' security and safeguarded our liberty. Every previous administration has complied with FISA. But the Bush administration apparently decided that FISA was an inconvenience. With the help of certain phone companies, it secretly spied on Americans for years, without any court orders or oversight.

There is still a great deal we don't know about this secret spying, but what we do know is alarming. Numerous reports indicate that it covered not only international communications, but also Americans' purely local calls with their friends, neighbors, and loved ones. A lawsuit in California has produced evidence that at the Government's request, AT&T installed a supercomputer in a San Francisco facility that copied every communication by its customers, and turned them over to the National Security Agency.

Think about that. The National Security Agency of the Bush administration may have been intercepting the phone calls and e-mails of millions of ordinary Americans for years.

The surveillance was so flagrantly illegal that even lawyers in the administration tried to fight it. Nearly 30 Justice Department employees threatened to resign over it. The head of the Office of Legal Counsel, Jack Goldsmith, testified that it was ``the biggest legal mess I had ever encountered.''

Mr. Goldsmith himself acknowledged that ``top officials in the administration dealt with FISA the way they dealt with other laws they didn't like: they blew through them in secret based on flimsy legal opinions that they guarded closely so no one could question the legal basis of the operations.''

Think about that as well. The President's own head of the Office of . Legal Counsel states that the administration's policy has been to ``blow through'' laws it doesn't like, in secret, so that its actions cannot be challenged. The Bush White House has repeatedly failed to understand that our Government is a government of laws, and not of men.

The administration's secret spying program has taken a heavy toll on our country. Its failure to follow the law has made it more difficult for prosecutors to put terrorists behind bars; for intelligence professionals to avoid civil and criminal lawsuits; and for the public to trust its Government. In the name of making us safer, the administration's reckless disregard for the law has made us less safe, and countless Americans fear their rights have been endangered. That sorry record demands accountability, not immunity.

Here is another fact that no one should lose sight of. From the very beginning, telecommunications companies have always had immunity under FISA when they comply with lawful surveillance requests. In fact, the Senate Judiciary Committee worked closely with AT&T, and the company played a major role in drafting FISA's immunity provisions in the 1970s.

To be completely protected from any liability whatever, all a company needs under FISA is a court order or an appropriate certification from the Attorney General. That is it. Just get one of those two documents, and you are off the hook.

So in this debate, let us be clear that we are not talking about protecting companies that complied with lawful surveillance requests. We are talking about protecting companies that complied with surveillance requests that they knew were illegal.

Immunity for the phone companies would be bad policy on many levels. First, it is premature even to be talking about this subject. Even though the President is demanding immunity for companies that may have broken the law, he will not tell all Members of Congress which companies broke the law, how they broke the law, or why they broke the law. He is asking us to legislate in the dark.

Immunity for the telecoms for warrantless wiretapping violates the basic structure and purpose of FISA. The industry helped draft FISA, and they perform a major role under it. Here is how this system was explained in the House Intelligence Committee report on the original legislation:

Requiring the court order or certification to be presented

[to the carrier] before the assistance is rendered serves two

purposes. It places an additional obstacle in the path of

unauthorized surveillance activity, and, coupled with the

provision relieving the third party from liability if the

order or certification is complied with, it provides full

protection to such third parties.

If phone companies can ignore these requirements, this system of checks and balances collapses. That is exactly what happened here. The telecoms are supposed to provide an essential safeguard for protecting Americans' private information. Because Congress and the courts usually don't know about wiretapping activities, this role of the telecoms is crucial. Immunity for the telecoms undermines the basic design of our surveillance laws.

Instead of undermining those laws, we should apply them in a court of law to discover and punish illegal activities. The administration has used the scare tactic of claiming that lawsuits will jeopardize national security by leaking sensitive information. That argument ignores the fact that the media have already exposed the existence of its warrantless surveillance program and the role of some telecoms in assisting this program. In addition, it would be foolish to assume that the terrorists don't already know that we are trying to intercept their phone calls and e-mails.

The administration's argument also ignores the numerous safeguards used by courts to protect sensitive information. No one is advocating that the NSA disclose its specific methods or targets in open court. Even if someone did seek such disclosure, the Federal courts have procedures that have protected Government secrets for generations.

The administration has also suggested that allowing these lawsuits to proceed might jeopardize national security by deterring phone companies from future cooperation with surveillance requests. This too is sheer nonsense. Under FISA, companies already have absolute immunity for any lawful cooperation. Future companies will be deterred only from cooperating with illegal surveillance requests, which is the whole point of the law. We do not want this shameful episode to happen again.

The phone companies will suffer only the same harm that befalls any company that violates the law. The administration contends that the telecoms may be bankrupted if the lawsuits continue. In other words, the administration is telling us these companies may have engaged in lawbreaking on a scale so massive they could not afford the penalty if they are brought to justice. But massive law breaking is an argument against immunity, not for it. If the concern is the companies' financial health, the answer is not to throw out the rule of law but to legislate reasonable remedies, such as damage caps.

Immunity for the telecoms would also violate basic principles of fairness and justice. The administration repeatedly claims immunity is ``a matter of basic fairness'' because the companies were doing their patriotic duty. That is a strange conception of fairness.

Telecom companies have clear duties under the law. They also have highly sophisticated lawyers who deal with these issues all the time. If a company violated its clear duties and conducted illegal spying, fairness demands it face the consequences.

It is precisely because fairness and justice are so important to the American system of government that we ask an independent branch--the judiciary--to resolve such legal disputes. There is nothing fair or just about Congress stepping into ongoing lawsuits to decree victory for one side and deny injured parties their day in court.

Frankly--frankly--the whole ``patriotic duty'' argument we have been hearing from the White House is hard to take seriously. If the allegations against the telecoms are true, then we are not talking about ambiguous points of law. As a Federal judge remarked in one of the leading cases:

AT&T cannot seriously contend that a reasonable entity in

its position could have believed that the alleged domestic

dragnet was legal.

We are not talking about what happened in the frantic weeks and months immediately following 9/11. We are talking about alleged violations of Americans' rights that went on for 5 years--5 years--in total secrecy, on a scale that has never been approached in our history.

If the telecoms had followed the law instead of the Bush administration, the administration could have come to Congress and obtained any needed changes in the law. In a democracy, it is the job of the legislature to amend laws to fit new circumstances. It is not the job of the legislature to rubberstamp illegal conduct by the Executive.

Some of the telecoms might have been doing what they thought was good for the country. Some of them might simply have been doing what they thought would preserve their lucrative Government contracts. We simply do not know. But either way, it is not the role of the telecommunications companies to decide which laws to follow and which to ignore. FISA is a law that was carefully developed over many years to give the executive branch the flexibility it needs, while protecting the rights of Americans. It is the companies' legal duty--and their patriotic duty--to follow that law.

Nothing could be more dangerous for Americans' privacy and liberty than to weaken that law, which is precisely what retroactive immunity is meant to do. Yesterday's newspapers disclosed that in December of 2000, the National Security Agency sent the Bush administration a report asserting that the Agency must become a ``powerful, permanent presence'' on America's communications network--a ``powerful, permanent presence'' on America's communications network. Under this administration, that is exactly what the NSA has become. If the phone companies simply do the NSA's bidding in violation of the law, they create a world in which Americans can never feel confident that their e-mails and phone calls are not being tapped by the Government.

Finally, amnesty would stamp a congressional seal of approval on the administration's warrantless spying. If Congress immunizes the telecoms for past violations of the law, it will send the message Congress approves what the administration did. We would be aiding and abetting the President in his illegal actions, his contempt for the rule of law, and his attempt to hide his lawbreaking from the American people. Voting for amnesty would be a vote for silence, secrecy, and illegality. There would be no accountability, no justice, no lessons learned.

The damage will not stop there. The telecommunications companies are not the only private entity enlisted by this administration in its lawbreaking. Think about Blackwater and its brutal actions in Iraq, or the airlines that have flown CIA captives to be tortured in foreign countries. These companies may also be summoned to court one day to justify their actions. When that day comes, the administration may call yet again for retroactive immunity, claiming the companies were only doing their patriotic duty as ``partners'' in fighting terrorism.

The debate we are having now about telecom amnesty is not likely to be the last round in the administration's attempt to immunize its private partners. It is only the opening round. In America, we should be striving to make more entities subject to the rule of law, not fewer. Giving in to the administration now will start us down a path to a very dark place.

Think about what we have been hearing from the White House in this debate. The President has said American lives will be sacrificed if Congress does not change FISA. But he has also said he will veto any FISA bill that does not grant retroactive immunity--no immunity, no FISA bill. So if we take the President at his word, he is willing to let Americans die to protect the phone companies. The President's insistence on immunity as a precondition for any FISA reform is yet another example of disrespect for honest dialog and the rule of law.

It is painfully clear what the President's request for retroactive immunity is about. It is a self-serving attempt to avoid legal and political accountability and keep the American people in the dark about this whole shameful episode. Similar to the CIA's destruction of videotapes showing potentially criminal conduct, it is a desperate attempt to erase the past.

The Senate should see this request for what it is and reject it. We should pass this amendment to strike title II from the FISA bill. Our focus should be on protecting national security, our fundamental liberties, and the rule of law, not protecting phone companies that knew they were breaking the law.

I am second to no one in wanting to make sure our intelligence agencies have all the flexibility and authority they need to pursue the terrorists. We need to pass a FISA bill that will keep America strong and protect our liberty. The bill reported by the Judiciary Committee will do that.

I will be glad to.

Mr. President, I thank the Senator for his comments. I agree it never had to be this way. I can remember back in 1976 President Ford was President of the United States. He had Edward Levi as Attorney General, who was a distinguished Attorney General. This was in the wake of a good deal of abuse we had seen during President Nixon's period of wiretap abuse taking place in this country, which shocked the Nation.

At that time, the Attorney General insisted that we work together, that Congress work together. He called members of the Judiciary Committee down to the Justice Department and took their views into consideration. There was a variety of very sensitive issues about activities involving the Soviet Union and a good deal in terms of embassies in Washington, DC. There was very sensitive information. All of that was worked out with the Republicans and Democrats in the Judiciary Committee, and they passed the FISA bill. There was only one dissenting vote in the Senate--only one dissenting vote--on this proposal.

I must say many of us were enormously disappointed at the beginning of this whole pathway when Attorney General Gonzales came up before the committee and indicated: No, there was not any role to try to work in a constructive way and on a constructive path on this mission. No, there was no place for anyone to get adequately briefed. No, there was no sharing of information. No, there was going to be no--they understood what was going to happen. They understood what was going on. They had all the authority and the power under the executive branch. No, there was not going to be any activity whatsoever in trying to work together.

I have mentioned a variety of different points. But one of those we ought to keep in mind is that with the abuses that have taken place, we are endangering the prosecution of many of these terrorists. This is a real danger. Rather than trying to work that out through a process, with give-and-take, with Republicans and Democrats, in a bipartisan way, working with the Judiciary Committee--the Intelligence Committee obviously has enormous interest and experience; I see my friend and someone we all have such a high regard for, Senator Rockefeller, who has done such a commendable job in this whole area--but not working it out and running off on this pathway, which is gradually being revealed through the national media and the press and through other activities, I think, rather than enhancing our national security, has indeed threatened it.

Mr. President, I thank the Senator.

In the committee, we had some of the members of the FISA Courts testify. They indicated before the committee similar kinds of cooperation they have had in reviewing this, making the Senator's point even stronger. I thank the Senator from Connecticut. There may have been others, but I did notice him to be the first one in the Senate who spoke up on this issue when it first came up, and he has been a very strong protector of our national security and our liberty, and we have all benefited from his comments and his leadership in this area. I thank him for all of his good work.

Mr. President, I yield the floor.

Mr. President, we yielded some time to the distinguished chairman from my side. How much time is remaining on this side?

Forty-six. I thank the Chair.

Mr. President, first let me begin by thanking our majority leader, Senator Reid, and our minority leader, Senator McConnell, for bringing this very important bill to the Senate floor. It is critical that we discuss it, debate it, vote on it, and pass it. I express my great thanks to the chairman of the committee, Senator Rockefeller, for his thoughtful discussion of the bill and his urgent request, in which I join, that all Members of this body move forward, adopt cloture, and adopt this bill. I wish to thank the chairman and all of the members of the committee and the staff of the Intelligence Committee who have labored long and hard

over many months, beginning well before the April request for legislation, to understand the program. I believe almost all of us have gone out to the NSA to see how the program works and to see what the protections are that are built in.

We have asked questions many times over. I think I have heard the same questions asked many times, and each time they are explained, I learn a little bit more. I think we have a good understanding--not a perfect understanding--of the process, but we do fully appreciate how important it is.

The bill before us today reflects a tremendous amount of work and compromise. The distinguished chairman and I and others have had disagreements. We view things a little bit differently. But I think it is significant for this body to realize we came together, the majority and the minority, in a 13-to-2 vote to present to this body a good compromise. Nobody is 100 percent happy with it. I don't expect them to be. But this is about as good as we can do in earthly matters, and particularly in congressional matters, if we can come that close, I think it is a good product.

Obviously, I have some disagreements with the chairman on the Protect America Act of which I was a principal sponsor. Because that bill was passed--had to be passed hurriedly before the August recess--what we were able to do in that bill was to restore the FISA process with a Foreign Intelligence Surveillance Court acting as it had originally been intended to act: to approve collections on U.S. persons in the United States. We changed the law so that technological changes would no longer bring within the FISA Court jurisdiction--or the FISA Court workload, more appropriately--collections on foreign targets where very often they were communicating with foreign recipients of messages. That was never the purpose and, as I indicated on the Senate floor, the FISA Court objected to the intelligence community having to be burdened by approving collections against targets where there was only minimal impact on any U.S. citizen.

The Protect America Act did fill in a critical national security intelligence gap. We all heard about it for a number of months. The intelligence community was shut out of the ability to go up on foreign targets which might have had vital information. Now, we have had time to consider all of the aspects of this collection program, and we have come up with a plan that will modernize the bill not only to make sure it keeps up with modern technology, but that it adds additional protections under the Foreign Intelligence Surveillance Act.

This morning, in a few minutes, we will hear from some of our colleagues about why they are not happy with the bill coming before us. I would venture that some individuals made the same speeches back in 1978 before the passage of that bill as well. But let me state the measure very plainly. The question is, Can the intelligence community of the United States obtain signals intelligence on foreign persons believed to be terrorists and reasonably believed to be outside of the United States, and do so in a manner that will protect us.

We know the electronic surveillance that was done under the President's program and under the current FISA Court jurisdiction has provided valuable intelligence which has helped to thwart attacks on the United States and, more importantly, as we heard from GEN Stan McCrystal, the commander of the Joint Special Operations Command, when the outmoded FISA law application shut down our ability to collect foreign intelligence, the people most greatly at risk were our men and women in the service overseas who did not have the benefit of collection of intelligence that might have foretold attacks on them. So our men and women volunteers defending America, protecting security in the world, were without the protection our technology enables us to collect at the same time they were fighting overseas, and this kind of information could have been a big help.

Well, the legislation we are looking at today contains far greater protections for U.S. persons than this body ever conceived of or was ever willing to grant Americans when it passed FISA 30 years ago. We have gone further than ever before in this bill in protecting Americans' privacy rights, and I am proud to be part of the process that is shoring up our national security while protecting to the greatest extent possible the liberties of all Americans.

The chairman is correct; we made many changes. We added many protections--important protections--that the Director of National Intelligence agreed were necessary additions to provide protections for Americans, U.S. persons that were not previously in the law. But I believe we can say today that Americans can feel safe and secure; that not only is their privacy being protected but their lives are being protected from terrorist attacks if we pass this bill which will modernize and extend FISA.

We have an urgent need to proceed to the Senate's consideration of the FISA amendments of 2007. Just last week, the Senate heard from our Director of National Intelligence, ADM Mike McConnell, and Attorney General Mike Mukasey in a closed briefing about the vital importance of this legislation to our intelligence collection efforts. This legislation will give the intelligence community the tools it needs today and in the future to protect our country.

The Protect America Act, passed in August by Congress, allowed the intelligence community temporarily to close critical intelligence gaps that were impeding the intelligence community's ability to protect our troops and to detect terrorist plots against our homeland. That temporary legislation expires in less than 2 months, and we must not let those dangerous gaps reopen. Two months may seem like a lot of time, but when it comes to this bill or when it comes to floor action in the Congress in both Houses and then a conference, it is a very short time period. Anybody who has watched this distinguished deliberative body and its counterpart on the other side work knows that 2 months sometimes can go in the flash of an eye.

The Senate will go out of session this week until mid-January, leaving only about 2 weeks for us to work out our differences with the House to get a bicameral bill sent to the President--one that he can sign into law before the current Protect America Act expires on February 5. I regret the majority did not let this important bill get to the floor sooner, particularly when we had the DNI on the Hill last March urging Congress to modernize FISA, giving us his template of legislation for FISA modernization in early April. But we are here in the last week before Christmas, and I hope we will not waste any time in passing the bill on the way to becoming law.

I sincerely hope we are not going to leave ourselves in the same uncomfortable position we found ourselves in this past August when the Senate's consideration of the Protect America Act had to be passed very quickly. Because the Senate waited from April until August to act, we found ourselves in a chaotic rush to pass a bill, and there were genuine fears in the intelligence community that a terrorist attack against the homeland might be in the works. If we had acted in a more timely manner, we would not have had some of the hard feelings we do today that resulted from that rushed process in August. That process produced a bill that continued FISA as it was originally intended but did not include the additional protections we have added today.

The good news, however, is that all of that is ancient history now because the product we have coming before us today is a thoroughly bipartisan Intelligence Committee bill that was put together in close coordination with the subject matter experts in the offices of both the Director of National Intelligence and the Department of Justice. I can assure my colleagues that all of the good ideas we have had--I have had and other members of the committee have had--when we have taken them to these experts, we have found out you have to do it this way if you want to accomplish the results you want. Some of the things we attempted to do had impossible burdens that we did not understand until we laid them out for these experts. They have told us how to accomplish our purposes and do so in a manner that would be effective in protecting the interests, and yet not destroy the ability of the intelligence community to collect the information we need.

So I implore my colleagues in the Senate to move as quickly as possible on this bill since its construction has been quite deliberate so that we do not repeat the history of the hasty manner in which we had to pass the Protect America Act. But that also means we must pass a good bill that will not get vetoed. We don't have time for that. It is always fun to posture and make political statements, but what is more important, we don't have to do that. The bill coming before the Senate out of the Intelligence Committee offers the legislation that gives the intelligence community the flexibility it needs to protect our troops and those of us in America, while protecting the privacy and civil liberties of Americans. With two small fixes that Chairman Rockefeller and I intend to add to the bill in a manager's amendment, I have been assured that the President will sign that bill.

Now, let me comment a minute on exclusivity. We are working on an agreement on exclusivity that states to the greatest extent possible this will be the exclusive legislative means for the President to collect foreign intelligence. As one who used to be a student of the Constitution and still remembers a little bit of it, I have been impressed to read over the years how article 2 of the Constitution has been interpreted. Article 2 of the Constitution has been interpreted to say that the President--the President alone--has the power to collect foreign intelligence.

That power was used by Presidents going back in history. President Carter and President Clinton have used that bill to collect information. The FISA Court of Review has said, in the in re: Sealed Case, that the President's power to collect foreign intelligence remains. The President has put this bill under the FISA Court. So he has accepted the jurisdiction of the court in assessing the appropriateness of the collection means that have been requested.

We cannot erase by legislation a constitutional power. That constitutional power that the President has was fully laid out in the opinions and advice given by the Department of Justice and the intelligence community to any carriers that may have participated in the collection of information during the pendency of the President's terror surveillance program.

One other item I will comment on is the sunset. The provision we have in the bill--the 6-year sunset--is a compromise we reached. I don't believe a bill such as this should have a sunset. FISA did not have a sunset. It stayed in effect from 1978 until 2006. We should have reviewed it before. That is what we are in business for.

The Intelligence Committee of the Senate continues to hold hearings and have oversight of the intelligence community, and I would expect that if we see problems in the bill, we will move to correct them when we see them, not wait to a sunset. General Mukasey strongly opposed having any sunset on the bill, and I oppose lessening the sunset from 6 years. In fact, I prefer to see that sunset provision out of the bill.

To summarize, S. 2248, the bill passed out of the Intelligence Committee by a solid bipartisan vote of 13 to 2, on which I hope the Senate invokes cloture in a few minutes, will be the proper means of assuring the intelligence community can go forward with the vitally important collection of signals intelligence, while at the same time protecting the civil rights and privacy of all Americans and U.S. persons.

The bill is an extremely delicate arrangement of compromises that will fall apart if significant changes are made to it. By ``fall apart,'' what I really mean is it won't become law. We need a bill that Democrats and Republicans can support, that the DNI says will work for the intelligence community, and that the President will sign into law. That means the first principle we need to follow today is that the age- old advice that doctors and others use: ``do no harm,'' and not deconstruct what the Intelligence Committee has carefully crafted.

We don't have time for poison pill amendments or any other sort of political posturing. The Senate Intelligence Committee bill is a good one and needs to become law without further delay so our intelligence collectors and troops in harm's way will have the tools they need before the Protect America Act expires in February.

Mr. President, I urge my colleagues to vote with Chairman Rockefeller and me to proceed to this bill.

I yield the floor and I reserve the remainder of my time.

What is the time remaining?

Mr. President, I yield 13 minutes to the Senator from Pennsylvania, then 5 minutes to Senator Sessions, 5 minutes to Senator Chambliss, and 5 minutes to Senator Kyl. That would conclude the time on our side, and I think that will put us at a vote or it will consume the time on our side. So I unanimous consent that be the order.

Mr. President, did I hear the majority leader ask unanimous consent that votes would have a 60-vote requirement?

Mr. President, I object to any measure coming up that does not have a 60-vote requirement. We conditioned our approval to bring up these amendments on agreeing to 60 votes; otherwise, we will use the prerogatives of the Senate.

Mr. President, I am a little bit confused. We certainly don't want to cut short the remarks of our friend from Connecticut, but I thought this was supposed to go back and forth. I believe there is an hour limit under postcloture on time that can be consumed by any Senator. I thought we would go back and forth to enable people on both sides and let the chairman and me perhaps respond where necessary.

I wanted to know, through the Chair, what the procedure is right now.

All right. Again, I seek recognition, and I thank my colleagues for sharing their views.

Mr. President, I wanted to share a few views on matters that have been just raised. I thought it was important to bring these up. I will have longer remarks when we actually get on the bill.

I appreciated hearing from our colleague, who is an original cosponsor of the first FISA bill, and to learn about the negotiations which went on then. But I was a little puzzled to hear how this bill-- this bill, which includes significantly more protections for Americans' civil liberties and constitutional rights--somehow goes back on the original FISA. The original FISA required a court review of targeting of U.S. persons. We have gone far beyond that in this bill. As a matter of fact, the Protect America Act, which he decried, contained all of the protections that were in the original FISA bill.

Now, we have, on a bipartisan basis--I keep emphasizing that the Intelligence Committee, on a bipartisan basis, after being fully briefed--fully briefed--by several elements of the intelligence community--and we asked them questions. We had briefings. We went to the NSA to see how it worked. We went through all of these ideas with them. They said: We understand your objective. Here is how to accomplish it.

I think we have prepared a very good bill that by any fair reading-- any fair reading--will extend the protections beyond what the original FISA, and even the Protect America Act, had for the surveillance, electronic surveillance of anybody either in the United

States or a U.S. person abroad. I am very much surprised that he says somehow, this bill, which provides more protection, doesn't provide the basic protections of FISA. I regret to say that is just not right.

I also want to address some questions about immunity which have been brought up. I thought our committee report, a bipartisan product, said it pretty well when talking about why providing immunity--and it is not amnesty because these companies, the companies alleged to have done wrong, did nothing wrong. This is what the Intelligence Committee said. We concluded:

The providers had a good faith basis for responding to the

request for assistance they received. The intelligence

community cannot obtain the intelligence it needs without

assistance from these companies. Companies in the future may

be less willing to assist the government if they face the

threat of private lawsuits each time they are alleged to have

provided assistance. The possible reduction in intelligence

that might result from this delay is simply unacceptable for

the safety of our Nation. Allowing continued litigation also

risks the disclosure of highly classified information

regarding intelligence sources and methods. In addition to

providing an advantage to our adversaries by revealing

sources and methods during the course of litigation, the

potential disclosure of classified information puts both the

facilities and personnel of electronic communications service

providers and our country's continued ability to protect our

homeland at risk. It is imperative that Congress provide

liability protection to those who cooperated with our country

in the hour of need.

Now, there was some talk about article II, and some suggested that the FISA Court would not have--this could not have been approved by the FISA Court. Well, my understanding is the FISA Court knew about it. The FISA Court has acted on this measure, and in one of the few published reports of the FISA Court of Review, In Re: Sealed Case--that is a very compelling and provocative title, but that is the name of the case--it is stated in one of the footnotes dealing with the case that: The Truong case, where a warrantless search of U.S. persons in the United States was approved by the court, the FISA Court of Review said:

The Truong court, as did all the other courts to have

decided this issue, held that the President did have the

inherent authority to conduct warrantless searches to obtain

foreign intelligence information. It was incumbent upon the

court, therefore, to determine the boundaries of that

constitutional authority in the case before it. 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.

The court went on to say:

The question before us is the reverse, does FISA amplify

the President's power by providing a mechanism that at least

approaches a classic warrant and which therefore supports the

government's contention that FISA searches are

constitutionally reasonable.

That is the view of the FISA Court of Review. Everybody is saying, well, we need to find out what the FISA Court of Review has to say about these certifications, about the authorizations. What I just read is what the FISA Court has said. The President does have the power under article II of the Constitution to conduct warrantless surveillances. Once that determination is made, then to go back and say that any company, any U.S. person, or any corporation that got a notice from the Attorney General to carry out an order of the President through the Intelligence Committee to conduct foreign intelligence surveillance is breaking the law is just absolutely beyond the bounds.

I am very sorry we have such a disjoint in the reading and understanding of the constitutional powers. And to say now that these people should be dragged back into court where they will be subjected not only to the potential of large legal bills, the potential loss in terms of any judgment--although I think that is minimal; I don't think anybody is going to be able to show any harm that would warrant the court to grant a monetary recovery--but what they will find, what they will find is great damage to their reputation, as the people who are enemies of the United States go out actively and trash any company or any individual who cooperates with the United States.

There are evil people out there who would love to be able to get information and confirm what companies may have participated. Once that happens, those companies would be at great risk abroad. Their reputations would suffer, and they and their personnel could be at great risk of physical harm.

So there are many good reasons not to bring these cases in court against the providers. Please note, as we have stated before, that this measure only protects the private sector people who might have cooperated. It does not protect Government employees. I hope by clarifying this, people will get a better understanding of why immunity is necessary to protect the legitimate interests of the United States in collecting foreign information.

Many of my colleagues want to speak, so I appreciate the opportunity to clarify the question of immunity.

Mr. President, I yield the floor.