FISA Improvement Act of 2007

Madam President, I suggest the absence of a quorum.

Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

Madam President, for nearly 30 years, the Foreign Intelligence Surveillance Act, FISA, as it has come to be known, has represented the ultimate balance between our country's need to fight terrorism ferociously and to protect the constitutional rights of the American people.

I intend to outline several of the key issues in this debate this afternoon. First, though, I want to say a word about the process which the distinguished Senate majority leader has just touched on.

I was one of two in the Senate Intelligence Committee to oppose the Intelligence Committee's version of the legislation. I am strongly opposed to granting telecommunications companies total retroactive immunity when they have been accused of wrongdoing in the President's warrantless wiretapping program. The Intelligence Committee legislation includes such a grant of immunity, and it was the major reason I opposed the legislation.

I do, however, respect Senator Reid's decision to hold the debate on this legislation under the regular Senate rules. Certainly, the distinguished majority leader has been under a lot of pressure from all sides to change the rules that in one way might favor one side or the other, but I think the majority leader has made the right decision by insisting that this debate go by the book.

I have had the chance now to work with the distinguished majority leader for more than a quarter century. I know how much respect he has for the Senate and for this institution. He firmly believes in the committee process. He firmly believes in the Senate's rules and traditions, and he worked to carry those beliefs out as both the minority whip and the minority leader. So we will have a chance, as Senator Reid noted, to try to work a compromise on several of these key issues.

I have said on a number of occasions, it may well be appropriate that the phone companies deserve some measure of protection with respect to their role in this surveillance program. But at a time when there are scores of lawsuits, the idea of complete and retroactive immunity seems to me to be over the line.

It would be my intention, if we cannot reach a compromise on this issue--and it is my hope we will--it would be my intention, once again, to oppose legislation that grants total and complete immunity for the companies.

Now, when the Senate Intelligence Committee picked up on its work this fall, coming back after the recess period, once again, we had a chance to meet with the director of the intelligence community, Mr. McConnell. As usual, he laid out a thoughtful case on a key issue, and that is that in some respects the Foreign Intelligence Surveillance Act has not kept up with the times.

Clearly, there are threats overseas, when one foreigner communicates with another foreigner, where it is important that our intelligence officials are in a position to protect the interests of the American people and run surveillance with respect to those conversations.

I and others said to the administration repeatedly that we would be supportive of that effort, and we would be supportive of that effort even when on an incidental basis it might pick up the conversations of innocent Americans. It was an effort to try to reach common ground with the administration and, in particular, to acknowledge that Admiral McConnell had a very valid point.

But, unfortunately, the administration would not take yes for an answer. I and others said--Chairman Rockefeller, Senator Bond. I have had the chance to work closely with both of them. Both of them have been supportive of a number of initiatives I have felt strongly about with respect to accountability, holding the intelligence community to its word with respect to disclosure, declassification.

I have the view that when Chairman Rockefeller and Senator Bond have a chance to work with a number of us on the committee, we can find common ground on a lot of these key issues. We can find common ground on the issue that the administration said for months and months was their principal concern; and that was to be able to pick up on the conversations of individuals overseas who represented a real threat to the security and well-being of the American people.

But, as I indicated, that was not enough for the administration. They would not accept yes for an answer. At that point, they then began to push very hard for this idea of complete and retroactive immunity for the telecommunications companies. This

came, of course, after years and years of the administration saying this program was lawful. I have had some difficulty squaring the fact that the administration said for so long--for literally years--that the program was lawful and now, in the face of all these lawsuits, despite the assertion that the program was so lawful, there should be this blanket grant of immunity. So that alone raised concerns on my part. I decided to dig even more deeply into this issue.

There are a number of Department of Justice legal opinions that relate to this program. The President has refused to make these opinions public or even share them with most Members of Congress. Our committee has reviewed the Department of Justice legal opinions related to the President's warrantless wiretapping program, and I have read these opinions myself. In my judgment, the legal reasoning in these opinions is shaky at best, and in some areas it is exceptionally weak.

I think most Americans would be surprised and dismayed to learn that their President had ordered the NSA to conduct this program based on such flimsy legal justification. Nothing in any of these opinions has convinced me that the President's warrantless wiretapping program was legal. Now that the existence of the warrantless wiretapping program has been confirmed, I see no national security reason to classify most of these opinions. As far as I can tell, these opinions are being kept classified in order to protect the President's political security, not our national security.

Our committee has also reviewed written correspondence sent to certain telecommunications companies by the Government, and I have read this correspondence as well. I cannot reveal the details of this correspondence, but I can say that I remain unconvinced that the Congress should grant total immunity to the companies.

For years, there have been a number of laws on the books, such as the Wiretap Act, the Electronic Communications Privacy Act, and, of course, the Foreign Intelligence Surveillance Act, that together make it very clear that participating in a warrantless wiretapping program is against the law.

Now, a number of our colleagues have argued that any companies that were asked to provide assistance after September 11 should be granted leniency since they acted during a time of national panic and understandable confusion. I think this argument has some merit, but the bill that was reported by our committee would not just grant immunity for 6 months or a year after September 11, it would grant immunity for actions taken up to 5 years after our country was attacked. I think that is far too long, and I will explain why.

If a phone company executive was asked to participate in warrantless wiretapping in the weeks after September 11, it is understandable that he or she might not take the time to question assertions from the Government that the wiretapping was legal, but this should not give a free pass to participate in warrantless wiretapping forever. At some point over the following months and years, this phone company executive has an obligation to think about whether they are complying with the law, and as soon as you realize that you are breaking the law, you have an obligation to stop. In the months and years following September 11, it should have been increasingly obvious to any phone company that was participating in this program that it might not be following the law.

For starters, in the weeks after September 11, Congress and the President got together to review the Foreign Intelligence Surveillance Act, including the wiretapping provisions. But Congress did not change the sections of the Foreign Intelligence Surveillance Act that state warrantless wiretapping is illegal. This should have been a giant red flag to any phone company that participated in the program.

Next, in the summer of 2002, the Director of the NSA, General Hayden, appeared before our committee in open session and testified about the need to get warrants when someone was inside the United States. I am sure General Hayden would argue he was parsing his words carefully, but at a minimum it was clear, at this point, most of the Congress, and certainly the American people, believes warrantless wiretapping was illegal. The President has argued he authorized this program under his authority as Commander in Chief, but in the spring of 2004, the Supreme Court issued multiple rulings clearly rejecting the idea that the President can do whatever he wishes because the country is at war. These rulings should have also been a giant red flag for any phone company engaged in warrantless wiretapping.

Finally, as the Intelligence Committee's recent report noted, most of the letters requesting assistance stated the Attorney General believed the program was legal, but as our report points out, one of the letters did not even say the Attorney General had approved. I have read this letter, and I believe it should have set off loud alarm bells in the ears of anyone who received it. In my view, as the years rolled by, it became increasingly unreasonable for any phone company to accept the Government's claim that warrantless wiretapping was legal. By 2004, at the very latest, any companies involved in the program should have recognized the President was asking them to do things that appeared to be against the law. The former CEO of Qwest has said publicly he refused requests to participate in warrantless surveillance because he believed it violated privacy laws. I cannot comment on the accuracy of this claim, but I encourage my colleagues to stop and think about its implications.

I also encourage my colleagues to go read the letters that were sent to telecommunications companies. I think these letters seriously undermine the case for blanket retroactive immunity. The bill that passed the Intelligence Committee would grant immunity long past the point at which it was reasonable for phone companies to believe the President's assertions. It would even grant immunity stretching past the point at which the program became public. By the beginning of 2006, the program was public and all the legal arguments for and against warrantless wiretapping were subject to open debate. Clearly, any companies that participated in this program in 2006 did so with the full knowledge of the possible consequences. I see no reason at all why retroactive immunity should cover this time period. When the Senate Intelligence Committee voted to grant total retroactive immunity, I voted no because I thought it was necessary to take more time to study the relevant legal opinions as well as the letters that were sent to the communications companies.

Now that I have had a chance to study these documents, I am convinced that granting 6 years of total retroactive immunity is not warranted. I would very much like to support this important legislation because certainly there are many good provisions and they have been put together under the work of Chairman Rockefeller and Senator Bond. It is my hope, as Senator Reid noted earlier, we will be able to find a compromise with respect to this issue. As I have said, it may well be clear at some point down the road that the phone companies deserve some measure of protection. We certainly want law-abiding citizens and companies to be supportive of our country in times of danger, and that is why I have made the point that if we were talking about a relatively short period after 9/11, it would be one thing, but it is quite another when you are talking about year after year after year, when there were red warning flags going up.

So I look forward to working with Chairman Rockefeller and Senator Bond, both of whom have great expertise in this field and have always been very fair, and I hope we can find a way to address the question of the communications companies in a fair way.

I would also like to say, before I wrap up--I know it is late in the day--a quick word about an amendment I offered in the committee that has been included in both versions of the legislation that the Senate Intelligence Committee wrote and that was written in the Judiciary Committee. Many Americans may not realize the original FISA law only provided protections for our people inside the United States and it does not cover Americans who travel overseas. If the Government wants to deliberately tap the phone calls of a businesswoman in Minneapolis, MN, or an armed services member in Roseburg, OR, the Government has to go to a judge and get a warrant. But if that

Minnesota businesswoman or Oregon serviceman is sent overseas, the Attorney General can personally approve a surveillance by making his own unilateral determination of probable cause.

It is my view that in the digital age, it makes no sense for Americans' rights and freedoms to be limited by physical geography. So when the Intelligence Committee was writing its legislation, I offered an amendment that would require the Government to get a warrant before deliberately surveilling Americans who happen to be outside the country. That amendment establishing these ``rights that travel,'' so to speak, was cosponsored by Senators Feingold and Whitehouse, and it was approved in the Senate Intelligence Committee on a bipartisan vote. The White House, regrettably, called this amendment troublesome, and I will only say I am prepared to work with colleagues on this issue. Just as I indicated I will be working with our Vice Chairman, Senator Bond, on the issue of telecommunications immunity, I am prepared to work with him and the chairman of the committee, Senator Rockefeller, on my amendment to make sure there are no unintended consequences with respect to the amendment I authored that is in the Intelligence Committee legislation and that is also in the Judiciary Committee print.

I am not prepared to agree that Americans who step outside the country should have fewer rights than they do here at home. I am going to fight for that amendment that ensures Americans in the digital age have their individual liberties, have their constitutional rights wherever they travel, and I am going to fight for it even if the administration continues to oppose it.

I yield the floor, and I note the absence of a quorum.

Madam President, as I have announced several times in the last few days, I am going to shortly move to proceed to S. 2248, the Foreign Intelligence Surveillance Act. This is such an important piece of legislation. I spoke briefly on this subject earlier, but I want to provide a more complete explanation of the process by which the Senate will consider this vital piece of legislation.

Earlier this year, the Director of National Intelligence came to Congress and alerted us to what he described as a significant gap that had emerged in our Nation's foreign intelligence-gathering capacity. Members on both sides of the aisle and from all sides of this important debate became convinced that this problem was real and that we had an obligation to address it. Although many of us differ on the solution, all Senators without exception, both Democrats and Republicans, want to ensure that intelligence professionals have the tools they need to keep our country as safe as possible. We all worked in good faith with the administration through July and August to provide those tools in a way that protects the privacy and liberties of law-abiding Americans.

Unfortunately, the bill signed by President Bush fell well short of that goal. I and many other Democrats opposed the so-called Protect America Act. That is why we made sure it had a 6-month sunset, so we could come back and do a better job of ensuring judicial and congressional oversight of these sensitive activities. As we all know, had the President been operating as we have always operated in the past, he would simply have come to the Intelligence Committee, the Judiciary Committee, and told them the changes that were necessary. But they didn't do that.

As my colleagues know, the Senate Judiciary Committee and the Intelligence Committee share jurisdiction over the Foreign Intelligence Surveillance Act. As a result of the President not asking us to act in a timely fashion, we find ourselves in a difficult position. But in spite of that, both committees have worked diligently over the past few months. This hard work has resulted in two different versions of legislation to improve FISA, S. 2248, reported out of the committees.

I consulted extensively with Chairmen Rockefeller and Leahy about the best way for the Senate to consider this delicate subject. I have determined that in this situation it would be wrong of me to simply choose one committee's bill over the other. I personally favor many of the additional protections included in the Judiciary Committee bill. I oppose the concept of retroactive immunity in the Intelligence bill. But I cannot ignore the fact that the Intelligence bill was reported favorably by a vote of 13 to 2, with most Democrats on the committee supporting that approach. I explored the possibility of laying before the Senate a bill that included elements of both committee bills. Earlier this week I used Senate rule XIV to place two bills on the calendar, first S. 2440, consisting of titles I and III of the Intelligence bill, but did not include title II on retroactive immunity. The second bill, S. 2441, consists of title I of the Judiciary bill and titles II and III of the Judiciary bill. Senator Leahy and I favor the second bill, S. 2441. But for me to override Senate precedent and rules in this case would be wrong and unfair. After consulting with Chairman Rockefeller and Chairman Leahy, we recognized--these two veteran legislators--that the best thing to do would be to follow regular order. It is the right thing to do. It is not right for me to pick and choose. After the committee structure has been established--and I believe in it--to simply say it doesn't matter in this case, it matters in every case. If it doesn't matter in one case, then it doesn't matter in any case. We have to follow the rules we have here; otherwise, it becomes very unfair, and it becomes a situation where I am the one picking and choosing. That isn't the way it should be. Both chairmen, with their experience, agreed that this was the right approach, even though, as I repeat, Senator Leahy and I would rather have the Judiciary Committee bill that we believe strengthens the position we had initially and not have to try to put them in at a subsequent time.

Under regular order, under the rules of the Senate governing sequential referral, I will move to proceed to S. 2248, the bill reported by each committee. When that motion to proceed is adopted, the work of both committees will be before the Senate, all elements of both pieces of legislation. All Senators will then be involved in the process. That is how it should be--all members of the Intelligence Committee, all members of the Judiciary Committee, and all Members of the Senate, Democrats and Republicans.

Because of the order in which they considered the bill, the Intelligence Committee version will be the base text. The Judiciary Committee version will be automatically pending as a substitute amendment.

I admire and respect the work done by these two committees on a bipartisan basis. Senators Leahy and Specter work extremely well together. Senators Rockefeller and Bond work extremely well together. These are the two committees that will have matters before this Senate. In the weeks since the two committees acted, Senators Rockefeller and Leahy have been working very hard to narrow the differences between their two versions of the bill. The ranking Republicans, Senators Bond and Specter, have been included in these conversations and deliberations. I expect that when we begin debate on the bill there will be amendments to incorporate many of the Judiciary Committee provisions into the Intelligence Committee text. In my view, that will make the final product stronger.

There is one issue that cannot be resolved through formal negotiation. As some are aware, the Intelligence Committee bill provides the telephone companies with retroactive immunity for lawsuits filed by customers for privacy violations and other aspects of the law. For me and many Members, there is a belief that such a grant of immunity is not wise. Others disagree. We saw what happened in the Intelligence Committee. That is a committee that the Republican leader and I worked very hard to get people on that committee who are going to work long hours. No committee in the Congress works longer hours than the Intelligence Committee. They work in anonymity. They don't have public hearings very often. Most of the time they are secluded in the Hart Building in that confidential space they have alone. The press doesn't know what is going on there. Staff, except for a few exclusive staff members, have no idea what is going on in there. These people on the Intelligence Committee work very hard and out of the purview of the public. That is the way it has to be. I expect there will be full debate on this subject of immunity next week as there should be.

Senators Specter, Feinstein, Whitehouse, Wyden, and others are working to craft a compromise that might give the phone companies some relief but would allow the lawsuits to go forward in a manner that would preserve accountability. In one way or another, we must ensure that President Bush is held accountable for his actions. Some people believe his actions were unwise and misdirected. It is important for the Senate to complete work on this bill next week to allow time for the Senate and House to produce a final product in conference. Our ultimate goal is a bill that commands broad bipartisan support in the Congress and in the country. The process I have outlined offers us the best opportunity to do so. It is going to be difficult, it is going to be time consuming, and it is going to be important. It is for the safety and security of our Nation.

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

Madam President, I now move to proceed to Calendar No. 512, S. 2248, and I send a cloture motion to the desk.

Madam President, I ask unanimous consent that the mandatory quorum be waived that is required under rule XXII and that the cloture vote occur at 12 noon, Monday, December 17.

Madam President, I now withdraw the motion.

Mr. President, today the Nation closed the book on a heinous story that brought the criminal act of dogfighting into the national spotlight. Michael Vick received 23 months in jail for his actions, but that is not the end of the story. Nor is it the end of the nation's attack on dogfighting.

Dogfighting is reprehensible in its own right. There is no justification for the intentional mauling and destruction of a living animal. But it is a precursor of so much more. That is why we must continue to fight these crimes.

Dogfighting isn't just about cruelty to animals. Dogfights are one becoming an increasingly profitable enterprise for violent gangs. These criminals can bring in as much as $25,000 by selling a champion dog on the black market, and they can take a cut from bets that can run in excess of $100,000 for a single fight. Stopping animal cruelty means cutting off the flow of money that these criminals use to intimidate and terrorize their communities.

Studies show that animal cruelty is a steppingstone to violent crimes against humanity. When the FBI profiles serial killers, they try to find out if they have a history of animal abuse. If someone's been prosecuted for animal cruelty, they are four times more likely to commit a violent crime. The Chicago Police Department found that almost 6 out of every 10 people arrested for crimes against animals turned out to be members of gangs. Animal cruelty is one of the strongest indicators of participation in other acts of violence that criminologists have ever discovered.

No on can argue that this barbaric practice should continue. But there is an unnecessary barrier to stopping it: gathering reliable data on animal fighting is more difficult than it should be. We don't have a good idea of how fast it is growing because of a simple problem with how the crime is categorized.

That is why I introduced the Tracking Animal Cruelty Crimes Act, which would list cruelty to animals as a separate offense category in the three major crime reporting systems used by the federal government. It's time to begin tracking these crimes, so we can better understand it--and ultimately so we can shut down this vast, exploding and increasingly lucrative criminal enterprise.

Currently in the world of criminal justice, there are ``Type I'' crimes, like homicide and arson, and ``Type II'' crimes, like drug abuse, gambling, and vagrancy. But then there are crimes that are thrown into a category called ``Other.'' Acts of animal cruelty, including dogfighting, are in the ``Other'' category. That means law enforcement can't separate out and analyze data about them.

How are we supposed to come up with an effective policy to target animal cruelty if that data is lumped together with other totally unrelated crimes? But there is a simple fix to this problem. Once law enforcement officials can gather information on animal cruelty as a separate category, they can track criminal activity, monitor trends, allocate resources more efficiently, and ultimately stop these criminals before they commit even more heinous crimes.

The repulsive blood-sport of dogfighting is a truly national problem, including in my home State of New Jersey, where last year officials found a dog ring in a bunker 11-feet underground. That was during a drug raid, showing how tied up that activity is with illegal gambling, drugs, and violence.

If we are going to combat a culture of violence wherever it exists in this country, we need to do everything in our power to stop the gangs that terrorize our streets and cut off their flow of money--whether it is through setting tougher penalties for gang activities, expanding funding for community policing, or boosting prevention efforts such as after-school programs.

For the sake of the safety of our communities, I urge my colleagues to take swift action to enact this important legislation.

Mr. President, I understand there are three bills at the desk, and I ask for their first reading en bloc.

Mr. President, I now ask for a second reading en bloc and object to my own request en bloc.

Mr. President, there are three bills at the desk due for a second reading en bloc.

Mr. President, I object to any further proceedings with respect to these bills.