A bill to extend the provisions of the Protect America Act of 2007 for an additional 30 days.

Mr. President, again, we rise with a renewed consideration of the Foreign Intelligence Surveillance Amendments Act, or the FISA Amendments Act, of 2008.

I thank the chairman for his very powerful and thoughtful statement on behalf of the original bill presented by the Senate Intelligence Committee, with the managers' amendments that we will incorporate.

Simply put, this legislation gives the Intelligence Community the tools it needs right now, and over the next 6 years, to protect our country. The Protect America Act, passed by Congress in August of this past year, allowed the intelligence community to close critical intelligence gaps. I disagree that the Protect America Act was flawed. It was a temporary measure. It didn't deal with all of the subjects we needed to deal with, including protections for carriers alleged to participate. But it did not cut back on any of the basic protections in FISA, and it served to provide us the means in this 6-month period to collect vitally needed intelligence on foreign subjects who might be planning attacks either on our troops abroad or in the United States. But this vital legislation expires in 1 week, and we must not let those gaps reopen.

We initially began debate on the FISA Amendments Act in December of last year. As was their right, several Members of this body decided a filibuster was a better course for our national security. So we listened for hours to unfounded allegations about the terrorist surveillance program and to mischaracterizations about the Intelligence Committee's FISA bill. Ultimately, this bill was pulled from the floor and further debate was postponed until now.

Early this week, we returned to the Senate. Now, given that the Protect America Act expires in a few short days, one would have thought that FISA would be the first up on the agenda. I don't want to minimize the importance of Indian health legislation, or any other important legislation that the Senate should consider, but let's be clear: If the intelligence community cannot protect this country from terrorist attacks, then it doesn't matter much what else we debate or pass. We have to protect the country first and protect our troops and other personnel abroad in order to have a country, and we must improve upon other legislation. But here we are, only a few days shy of the PAA's expiration, and the drumbeat is there already by some stating we need more time to consider the Intelligence Committee bill; we should just do a short extension of the PAA. That is a bad idea. Some have called it flawed.

I believe it is important, but I believe the Intelligence Committee bill goes much further and does what we absolutely must do to make sure not only that we have the ability to collect on foreign terrorists who are planning attacks here or abroad but also to protect the constitutional rights, the privacy rights of Americans.

The Intelligence Committee spent over 9 months looking at FISA modernization. We have held hearings. We have gone out to NSA and watched its

implementation. We have reviewed the terrorist surveillance program. We have looked at the implementation of the PAA. We have gone to review all the documents upon which the TSP--the terrorist surveillance program--was based, and we have come with a solid bipartisan bill. We are ready to act, and the intelligence community is waiting for us to act, and so are our allies abroad who have relied very heavily and continue to rely upon our collection ability to help keep their countries safe. Every day, we hear about attacks that have been disrupted by allies across the world. Without being specific in any areas, I think one can generally assume that our collections have helped our allies protect themselves against attacks in their countries.

There is no reason to extend the PAA, much as I liked it. We have a bill that is responsible, and it is more effective. It addresses concerns about the PAA. It gives our intelligence operators the tools they need, and it ensures that our private parties will continue to cooperate with the Government. I am pleased the majority leader and minority leader have come to agreement on this fact.

As the majority leader stated appropriately 2 days ago when he supported moving to this legislation immediately--and I thank the majority leader for that--we need to act now, and I hope we will be able to pass a solid FISA bill in short order. Some hope today. I join with that hope. I am not an incurable optimist, but we can always hope.

We have before us the Senate Intelligence Committee bill, S. 2248, which was passed out of the committee by a 13-to-2 vote. We need bipartisan legislation. This is bipartisan. Nothing is ever going to be unanimous in an area that is this technical and this important, but we passed it 13 to 2. This bipartisan bill will give the intelligence community the authority and flexibility it needs to track foreign terrorists quickly and efficiently.

In November, the Judiciary Committee reported a substitute on a straight party-line vote. The substitute added numerous provisions that were not fully vetted with the intelligence community. Regrettably, it ignores significant concerns expressed by working-level officials in the Department of Justice and the intelligence community--the very operators who know how this complex, technical, and overwhelmingly supervised and reviewed system works. The Judiciary Committee also ignored the concerns of its own minority members. As a result, this totally partisan substitute changed the Intelligence Committee bill in ways that will gut--gut--our intelligence surveillance capabilities. This substitute amendment is what we will be considering first this morning.

Last night, at the very last minute, the chairman of the Judiciary Committee filed a new substitute that modified the original Judiciary Committee substitute. Regrettably, the Judiciary Committee did not share this with my staff, and we only received the strikeout version, one that shows the changes between the substitute that has been at the desk for 2 months now and this last-minute switch. We received it from the ranking member's staff late last night.

After a quick review, my staff and I can tell my colleagues that the core problems remain, and although the DNI and the Department of Justice also have had little time to digest it, they have told us that their primary concerns remain. They cannot support this new substitute. It does not get the job done.

Conversely, the Intelligence Committee's bipartisan bill was drafted after months and months of studying the collection program. Members of our committee went out to the National Security Agency--we refer to it as NSA--to see how the program worked and to inspect the layers of protection built into their collection methodologies to make sure the agency stayed within the bounds of law.

Over several months, Chairman Rockefeller and I put together an agreement with our committee on both sides which adds more protections to the constitutional rights and the privacy rights of American citizens. I can be very proud and I think the Members of this body can be very proud that we have extended and improved protections for American citizens.

We worked with the intelligence community representatives and the Department of Justice lawyers to make sure our legislation would work and would not impede vital collection--more protection but keep the system working. I think that is where we ought to be, and that is where we are in the underlying Intelligence Committee bill.

Most importantly, we fashioned a legislative solution that both Democrats and Republicans could accept. I thank our Intelligence Committee members and staffs for their efforts, long and hard work, to come up with this bipartisan bill. Our bill has been publicly available for scrutiny for over 3 months now, and it remains the most solid bipartisan way to move forward.

Two provisions of the bill, however, were added to the initial markup without the input of the intelligence community. As a result, both provisions in the bill could cause unintended operational consequences, and they needed to be fixed. Chairman Rockefeller, Senator Whitehouse, Senator Wyden, and I worked together with the community to come up with solutions to these problems, and I hope we can have broad support for a managers' amendment to remedy that situation. One of these provisions provided important new protections, but it had to be reworked to protect Americans abroad in a manner which was consistent with our structure of laws and those of other countries.

The DNI has told us that with the managers' amendment fixing these two problems, the community will support our bill. That is important for Chairman Rockefeller and me because we want to pass a bill that works and will become law. It would do no good to pass a bill that some may feel good about or may pass for good politics but does not work for those who protect us in all of our intelligence agencies. So the DNI's support of this bill, in particular, is critical. Consequently, with these fixes applied, we will also have a bill the President will sign into law.

My intention as a floor manager--and I believe Chairman Rockefeller stands shoulder to shoulder with me in this--is to pass a bill that the DNI supports and that the President will sign. I believe we have that right now with the fixes to be applied.

If we attempt to change key painstakingly constructive provisions or to add bad provisions, however, we could hinder the intelligence community's ability to do its job and jeopardize the DNI's support for this bill and the chances of it becoming law. With the expiration of the PAA in a few days, I believe this is not the path we should take in the Senate. Anyone who has read FISA knows that it is very technical and each word matters. So it is imperative we do not add provisions without the input of the intelligence community, and we need to listen to their concerns. They are experts. They operate an incredibly technical and complicated system that is overlaid with legislation carefully drafted to recognize their capabilities, their limitations, and, most importantly, protections for U.S. persons and American citizens. We saw firsthand how difficult it is to deal with amendments that are not cleared with the intelligence community to make sure they work.

Let me just say that the Department of Justice and the Office of the Director of National Intelligence have been very helpful throughout the process, but we should not mistake their willingness to provide technical support to avoid operational problems with support for certain provisions. So while the DNI may have provided some technical support, there are several amendments that I believe, if added to our bill, could cause problems for the intelligence community, lose the support of the DNI and thus our ability to get this bill signed by the President.

First, I expect there to be some efforts to undo or modify the civil liberty provision in the Intelligence Committee's bill. Chairman Rockefeller has already delivered a very strong and persuasive argument for this liability protection. It has been said once very well by the chairman, but this being the Senate, it needs to be said again, and I will be happy to do so.

This provision is essential to foreign targeting authorities. Without retroactive and prospective civil liability protection, it becomes much less likely that our private sector partners will be

able or willing to assist us in the future. That means the intelligence community would have to spend great time compelling telecommunications providers in each instance who are reluctant for fears of civil lawsuits to assist, to work with us to track terrorists.

The committee studied this issue, and we reached a broad bipartisan consensus that civil liability protection is for providers and not immunity for Government officials. That was the appropriate action. I repeat, the civil liability provision in this bill is for private parties who may have assisted the Government. There is no immunity or protection for the Government itself.

Additionally, the concept of ``substitution,'' where the Government is substituted for the private party as a defendant in court, is not an acceptable alternative. That would allow litigation to continue, including discovery against the providers, thereby risking the disclosure of our sensitive intelligence sources and methods.

At his confirmation hearing, I asked General Hayden, the nominee for the head of the CIA, who had previously been the head of NSA, how badly the disclosures of our intelligence collection methods had hurt us in the battle to get the intelligence we need. General Hayden told us ruefully that we are now applying the Darwinian theory to terrorists: We are only capturing the dumb ones.

With substitution, we would not only be risking disclosure of sources and methods, we would also, however, embitter private parties against us whose cooperation becomes public, thus endangering their personnel, their facilities, and their business reputation here and abroad, with grave consequences to those who had participated, as Chairman Rockefeller said, in compliance with a Government directive from the highest officials in the land, and we would put taxpayers' dollars at risk for trial lawyers' coffers. We would also incur great expense in defending those lawsuits. The orders were issued--and I will discuss more about this later--under the President's article II constitutional power and responsibility to conduct foreign affairs.

Let me say a few words about an idea that came up shortly before the debate in the summer. Some are suggesting that before civil liability protection is granted, the FISA Court, the Foreign Intelligence Surveillance Court--and I will refer to it as the FISC--the FISC or other court must determine that those providers who allegedly assisted the Government with the terrorist surveillance program acted in good faith and pursuant to an objectively reasonable belief that the directives were lawful.

As reflected in the Intelligence Committee report accompanying S. 2248, the committee has already made this determination. We have studied this issue extensively, and we concluded that civil liability protection was the best and only solution. Why would Congress want to turn over its collective judgment to a single judge and pass a law stating that judge's ruling would be the final word on this issue? We don't even know what that ruling would be. This does not make much sense to me. We already went through this problem with the judicial variance on the FISC before, remember? The President's program was put under FISA, and then changes within the court, different judges, led to a problem with the intelligence gaps that spurred the need for short- term legislation last August. Congress should not roll the dice on this issue, close our eyes, cross our fingers and say: Whatever judge happens to be on call the day this issue comes up, well, that will be the final word on this question. Remember, the FISC's function is to approve applications for electronic surveillance. It is not set up for nor has established competence in this area. It makes no sense.

The providers need civil liability protection, and they deserve it now, not the prospect of further proving their good faith before yet another court. The longer this litigation drags on, the more likely it is that our intelligence sources and methods will be disclosed and the communications providers' businesses will suffer and they, their facilities, and their personnel will be at risk. It also becomes more likely and understandable that these companies, on which both the law enforcement and the Intelligence Committee rely for critical and timely information, could refuse to assist us in times of our need because of valid business reasons about the potential for further lawsuits. And I am not just talking about terrorist threats, I am talking about a provider refusing to give information voluntarily to help find a kidnapped child or help to find those who sexually entrap children on the Internet or proliferation or what have you. Should we be willing to take this risk? I don't think so.

Now, let me move to some of the issues the Judiciary Committee modified in our bill to the detriment of the overall product. Let me be clear, the new substitute that was filed last night is the same old wolf in different clothing. It does not alleviate any of these concerns. The Intelligence Committee bill included, as part of our compromise, a reiteration of the exclusive means provision in the current law, which states that FISA is the ``exclusive means'' in statute for conducting electronic surveillance. No statute that Congress ever passes can trump the President's article II powers. Numerous courts, and even the FISC itself, have reviewed this and stated the powers given to the President under the Constitution cannot be extinguished by a law passed by Congress. Even though we have passed a law on exclusive means, we have also passed a law called the Authorization for the Use of Military Force, which has to be read in conjunction with FISA.

Clearly, even those who believe a statute can somehow impinge on the article II constitutional powers of the President must recognize the powers of the President, if they were lessened by FISA, were reinvigorated by AUMF. Congress is making a statement in ``exclusive means'' that we want to see surveillance conducted under FISA. We have seen many attempts to broaden this language, but this is an area that calls for extreme caution. Exclusivity is more than a policy statement, it has a real operational component.

As we now know from our own experience in drafting this provision, the slightest word change can impede vital intelligence collection. I believe the Intelligence Committee's version addresses Members' views about exclusivity and further strengthens that statement, while at the same time preserving the ability to gather intelligence. Conversely, the majority's Judiciary Committee substitute now requires an act of Congress after the next attack, potentially before our intelligence professionals can do what they need to protect us. There is no exception if the attack comes from al-Qaida or another terrorist organization.

Now, it doesn't take a rocket scientist to figure out that as we stand here today, we have no idea where or when the next attack may come. Are we, each of us, willing to take the risk that Congress may not be able to act; that for whatever reason Members cannot make it back to Washington, DC, we cannot get a bill passed and signed by the President, which would leave our intelligence community without the authorities it needs to counter the threat or protect this country? I, for one, don't want to be explaining that back home to my constituents in Missouri. It is another nice sounding idea politically to some that makes no sense operationally and shuts down some potential intelligence collection.

Moreover, the Judiciary Committee's bill, and the latest substitute, would allow the FISC to assess compliance with the minimization procedures used for the acquisition of foreign intelligence information from individuals outside the United States. Minimization procedures are designed to protect U.S. identities if communications of U.S. persons are accidentally swept up in a surveillance operation or if a U.S. person is party to a conversation with a target--a lawful target--but that U.S. person is not of intelligence interest him or herself. We minimize, suppress, don't even record the name of that U.S. person. If there is no intelligence value, then that person is not at risk. To be at risk, that person would have to be receiving or instituting a call to a lawful target. That means that if somebody is calling a family member abroad, a business activity abroad, then there is no reason to fear that even those conversations would be picked up. But if others are picked up that are of no intelligence value, they would be minimized or suppressed.

Giving the court the ability, supposedly, or the responsibility to assess compliance may sound like a good idea in the abstract, but when we talk about foreign targeting, we are outside the FISC's expertise. The FISC was created solely to issue orders for domestic surveillance on a particular target. Congress, in 1978, recognized the court's expertise over domestic matters but specifically left foreign surveillance activities to the executive branch and the intelligence community and the oversight of the intelligence committees. By now requiring judicial review of minimization procedures for a foreign target, we would take a huge step back from a system that worked well for almost 30 years. So there is a red line, and I need to draw it.

But that line is already drawn. As a practical matter, when the FISC assesses compliance with minimization procedures, it would be second- guessing trained analysts' decisions about which foreign terrorist to track and how to do that. The FISC knows what to look for when it issues a warrant to tap someone's phone in Virginia, but when it comes to analyzing intelligence leads and deciding which foreign terrorists or spies should be surveilled, the court is simply not competent to make these judgments. This is what assessing compliance would have them do. The court knows this. Let me point to the court's own words from its published opinion on December 11, over a month ago, in the case In re: Motion for Release of Court Records. There the FISC judges say they are:

Not expected or designed to become experts in foreign

intelligence activities, and do not make substantive

judgments on the propriety or need for a particular

surveillance. Even if a typical FISA judge had more expertise

in national security matters than a typical district court

judge, that expertise would still not equal that of the

Executive Branch, which is constitutionally entrusted with

protecting the national security.

That is a quote from the court which some want to give this responsibility which they say they do not have. We need to heed the words of the FISC and not require them to make judgments they themselves believe are better left to the executive branch.

Let me repeat for my colleagues to hear clearly. The FISC, the FISA Court itself, is virtually saying: Congress, don't do this. We are not the right ones to make this determination. We should be wary to disregard their own assessment of their own competency in this vital intelligence collection area.

Additionally, throughout this debate, we must remember we are talking about foreign terrorists operating in foreign countries intent on harming us and our interests. Senator Leahy's new substitute slightly modifies a requirement from the original substitute that the Department of Justice inspector general conduct a comprehensive review of the President's Terrorist Surveillance Program. That modification, however, does not address the underlying concerns with his provision. This review simply is not necessary and is beyond the expertise of the DOJ inspector general.

The Intelligence Committee has had numerous briefings and hearings on the TSP. We have spoken at length with lawyers from the Department of Justice and with the operators, and we have read document after document on which this program was based. We have spent more time on FISA than I ever dreamed possible or that I ever wanted to do. Yet I have not heard one convincing argument as to why this review must be conducted. Again, it may look good politically, it may make good sound bites, but we have reviewed this program to death over the past year. Yet another review is redundant, unnecessary, and because of that is wasteful.

Finally, as a part of my agreement with Chairman Rockefeller, we included a 6-year sunset in the bill. Personally, I think sunsets are a bad idea when we are talking about national security. The Attorney General, General Mukasey, has stated repeatedly, ``There are no sunsets in our enemies' fatwas.'' I understand what he is getting at. The terrorists' desire to get after us is not limited. We should give our intelligence operators something they can hang their hat on when they retool their systems and move forward with intelligence collection.

If there is a debate about sunsets, I am considering saying we ought to get rid of even the 6-year sunset. I agreed to 6 years to get this bill moving, but shorter than that I don't believe is acceptable. If we provide stricter, shorter term sunsets, that would tell the private entities and our intelligence communities that Congress's view on civil liability protection is only temporary and the power for our intelligence collection is only temporary. This new statute gives our operators confidence in the new statute. It gives our collaborating allies abroad confidence we will be there.

Let me make one thing clear. Our job in the Senate Intelligence Committee, and the same on the House side, is to review intelligence collection methods. We review it on a semiannual or even monthly basis. If we find there is a problem with this bill, we should not have to wait until the sunset comes to change it. We see a problem, we need to fix it. We don't need to wait for 6 years or 4 years to fix it. If there is a problem, let's start fixing it as soon as we find it.

A sunset does not prevent us from passing new legislation when we see fit. No sunset at all would put even greater pressure on us to make sure it is working properly. If in 1 year the bill was shown to be inadequate, we should act immediately to fix it, not wait until the sunset. So I don't like sunsets, but the 6 years was a compromise with the chairman and other members of the committee to produce this bill.

The Judiciary Committee, in this new substitute, seeks to further shorten the time frame to 4 years. Our intelligence collectors, our troops on the battlefield, the private parties who depend on this authorization need certainty, not authorities that change depending on what year it is. A 4-year sunset would not give them the certainty they need.

In conclusion, our intelligence collectors, our troops who are in harm's way, need this legislation, and our country needs this legislation. But let me talk about the troops. In May, when I visited Iraq, I talked directly with the commander of our Joint Special Operations Command, who told me the limitations under the old law, shutting down of the collection that occurred because of the new technology, so adequately described by the chairman, prevented him from collecting key information he needed to protect our troops in the theater, on the battlefield. My son happened to be one who was there at the time. That got my attention. It had the attention of the troops and the commanders. The commander told us he could kill or capture top al- Qaida leaders, but he was not able to collect signals intelligence on them. Does that make sense? No.

The bottom line in this story of FISA is terrorists were able to use technology and our own outdated laws to stay a step ahead of us. We can't afford to give them that step. The Intelligence Committee's bill gives our intelligence operators and law enforcement officials the tools they need to conduct surveillance on foreign terrorists and foreign countries planning to conduct attacks inside the United States against our troops and against our allies. It is the balance we need to protect our civil liberties without handcuffing our intelligence professionals.

I hope we can do the right thing--pass this bill, with the perfecting managers' amendment but without any additional changes that will compromise its functionality and prevent it from becoming law. We need a bill both Democrats and Republicans support, the DNI supports, that is good for the intelligence community, and that the President will sign into law.

That means we need to dispense with the Judiciary substitute that is immediately before us and proceed with consideration of amendments to the bipartisan Intelligence Committee bill. I look forward to making this happen.

I yield the floor.

Mr. President, may I ask the distinguished Senator from Texas to yield for a unanimous consent request and then she will be recognized after that.

Please.

Mr. President, since we have had two speakers on the majority side, I ask unanimous consent that Senator Hutchison and then Senator Brownback be recognized on our side.

I thank the Chair.

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

Mr. President, I will be speaking more at about 1:30 on the Judiciary Committee substitute, but I thought I would clarify a few concerns that have been raised that I have heard. I know there are a number of Members coming down, and I do not want to hold them up, but I do want to point out that my good friend, the senior Senator from Pennsylvania, was concerned that the President's terrorist surveillance program was not briefed to Members of Congress. It is my understanding it was briefed to the leadership of the Intelligence Committee and the leadership on both sides. Personally, I would have preferred that more Members be briefed, but it is my understanding that when these leaders were briefed, it was their view that in light of the urgency and the need and the difficulties of explaining what we were going to do prior to--which could delay the implementation of the terrorist surveillance program, that it was a consensus of these meetings that the President should not bring a measure before Congress modifying FISA to take account of the new means of electronic surveillance and electronic communication.

Secondly, my good friend, the senior Senator from Connecticut, in his comments urged that we ban reverse targeting. I would call his attention to section 703(b), subparagraph 2 and subparagraph 3, which do explicitly ban targeting of overseas terrorist activities in order to gain information on U.S. persons. That is explicitly banned.

The Senator from Connecticut also spoke warmly of the exclusive test that existed in FISA from the period from 1978 forward.

We have included in the bill the exclusive means test that worked for some 30 years. That is in section 102. Without getting into classified information, we can say that this bill does not allow our intelligence community to listen in on conversations or read mail unless those persons are afforded the protection of the Intelligence Committee bill. To clarify that, the collection is carefully limited and overseen. There have been comments that the collection efforts by the NSA are not subject to oversight. I can only suggest to the people who have raised those concerns to ask members of the Intelligence Committee how much time we have spent looking into electronic surveillance. I can assure them that we enjoy looking into all these issues. We do so on a continuing basis. We have done so extensively over the last 9 months. I am sure they can count on us continuing to exercise that oversight. The Intelligence Committee has been set up specifically to review all of the intelligence collection methods of our intelligence community. They do a great job. We look over their shoulders and suggest ways they can improve the collection and analysis and also take steps to ensure they stay carefully within the boundaries of the Constitution and the laws that apply to them. With respect to collection methods such as 12333, we also oversee that as well.

So the people of America can be assured that the laws, the Constitution, and the regulations are being complied with. That is our job in the Intelligence Committee. We intend to continue to do so. I didn't want to leave without clarification of the suggestion that some of these matters were not attended to.

I see my colleague from Utah. I thank him for his great work. He is not only a valuable member of the Intelligence Committee but his work on the Judiciary Committee reflects his keen understanding and devotion to ensuring that we do a proper job of oversight and legislation when it comes to these very important collection methods.

I yield the floor.

Mr. President, I ask unanimous consent that I be given the full 15 minutes that was allotted to us before the 2 o'clock vote. I have some remarks, and I believe Senator Rockefeller, if we need that, would like the full 15 minutes.

Mr. President, last night, as I was preparing to leave my office, I learned, with surprise, that Senator Leahy had made significant modifications to the pending Judiciary Committee substitute.

Our study during the night of these modifications revealed that the partisan, Democratic-only Judiciary Committee substitute remains deeply flawed.

While some aspects of the modified substitute have been cleaned up-- and, in fact, appear to borrow language that Senator Rockefeller and I have been negotiating over the past several months as part of our perfecting managers' amendment--the substitute contains many problematic provisions that I cannot support.

In contrast to the underlying Intelligence Committee bill, I doubt that the problematic provisions in the modified substitute were vetted with the Republican Judiciary Committee members, the intelligence community, or the Department of Justice.

It should be no surprise, then, that the DNI and the Department of Justice continue to oppose the modified substitute.

Let me clarify some matters that were brought up by the distinguished senior Senator from Massachusetts. First, the Protect America Act, which expires on February 1, was not negotiated in secret. The DNI asked the Intelligence Committee in April to consider a bill he set up. He came before our committee and testified openly in May. He came before the Senate in a classified meeting in S-407 in June. When we had not been able to get a markup in the Senate Select Committee on Intelligence and time was running short, he offered a stripped-down version that would allow intelligence collection to continue. We were unable to get a markup, so we filed with Leader McConnell the bill on Wednesday. That bill sat on the floor Wednesday, Thursday, and Friday.

There were secret negotiations, but those were on the majority side. The chairmen of several committees worked without informing the members of the Intelligence Committee or, to my knowledge, any Republicans on any of the committees, and they finally presented that to us less than an hour before we went to the floor. So that was negotiated in secret. It was unacceptable, and it did not allow intelligence collection to continue. I am glad to say, on a bipartisan basis, we rejected the secretly negotiated bill and passed the Protect America Act.

The Protect America Act did not expand on the authorities of FISA, other than to clarify the means of collection, which previously were by radio. Most communications overseas are by radio. Many communications were going through America. This bill before us today, the Intelligence Committee bill, does not, as my friend said, expand on the powers of the intelligence community to collect. In fact, they impose more restrictions to guarantee the privacy rights and the constitutional rights of Americans. Those are in the bill. Those were negotiated. We pushed the DNI and the Department of Justice lawyers as far as we could to build in additional protections. Those are in the bill.

Now, if one reads the bill, you would see that reverse targeting is prohibited in section 703(b), subparagraphs 2 and 3. It does strengthen the privacy protections. That is why the Senate Intelligence Committee bill is the bill that we should pass.

Moving back to the Judiciary Committee substitute, there is no provision for retroactive or prospective immunity for communications providers or for preemption of State investigations into providers' alleged assistance to the Government in relation to the terrorist surveillance program.

The distinguished chairman of the committee, Senator Rockefeller, laid out at length, and very forcefully, why this protection is needed. This protection is needed to assure that we can have the continued assistance of carriers who might be called on not only in terrorist matters but on many domestic crimes to provide assistance. Furthermore, if we don't have that protection, if these lawsuits continue, it is quite likely that the court proceedings will get into details further on how the collection of electronic information and communications is accomplished. Every time we talk about that and lay out more, we give more information and more guidance to the terrorists themselves on how to avoid our surveillance. We don't want to be in that position.

The next problem with the substitute from the Judiciary Committee is that, unlike the managers' amendment that Senator Rockefeller and I intend to offer for the Senate's consideration, the new substitute doesn't fix the reporting problems of the Wyden amendment, which had a great objective--and I agreed with the objective--but it is unworkable. We are going to make it workable in our bill.

Furthermore, it requires the intelligence community to perform the impossible task of estimating and recording U.S. person communications in its possession. Anybody who wants to know why that is so, we would be happy to meet with them in a closed meeting and explain why that is not workable. It would be an impossible burden, one we cannot undertake on the committee.

Next, the substitute modifies the exclusive means provision from the original substitute, but it is still problematic and requires an express statutory authorization. That presumes that after the next attack Congress will be in a position to act quickly to pass necessary authorizations. I don't think we want to impose that provision.

The underlying Intelligence Committee bill provides the same exclusive means, directions, and limitations that were in the FISA bill initially.

Another problem with the Judiciary Committee bill is that it places a provision in the Intelligence Committee bill that would have allowed collection to continue until the FISA Court of review has--if they had gotten an unfavorable ruling from one judge, it allows collection to continue until the court of review rules on it. This is a real problem if there is one unfavorable opinion that might put us deaf to collections that are necessary.

The Intelligence Committee determined that anything except an automatic stay through the FISA Court of review could jeopardize our intelligence collection. This was already a compromise from the full automatic stay that was in the Protect America Act.

Next, the substitute would impose unreasonable new restrictions on the use of foreign intelligence information, including information not concerning U.S. persons, obtained or derived from acquisitions using targeting procedures that the FISA Court found to be deficient in some manner, throwing out vital terrorist information because we didn't protect the constitutional rights or there were some procedural flaws in targeting a foreign terrorist in a foreign land.

It creates a superexclusionary rule in the foreign intelligence arena that is at odds with the 9/11 Commission's mandate for the intelligence community to find and link disparate pieces of foreign intelligence information.

Read what they said. It was important. They said we are not sharing information, and we need to share information within the community if we are going to have a chance to prevent the next 9/11.

On reverse targeting, the substitute changes the bright-line reverse targeting provision in S. 2248 to a new rule that changes ``the purpose'' to ``a significant purpose.'' This change is a significant concern to the DNI and DOJ. They told us it creates so much uncertainty in the appropriate legal standard for collection, and it may confuse analysts trying to follow the standards. This could inadvertently lead to less robust intelligence collection.

Under the bulk collection, while the new substitute modifies the bulk collection prohibition in the original Judiciary Committee substitute, it doesn't solve the problem. This provision could have significant unintended operational consequences, and it is unnecessary given restrictions in S. 2248 about intentionally targeting persons in the United States.

As I said, for example, if a general is about to order troops into Fallujah, this prohibition could impede the ability of the intelligence community to listen to calls coming into and out of that city without a court order.

The FISA Court would be commanded, under the Judiciary Committee's substitute, to assess compliance with minimization procedures used for the acquisition of foreign intelligence information from individuals outside the United States. As I reported earlier in my floor speech, there is a FISA Court opinion, In Re: Motion For Release, December 11, stating:

The Court recognizes the executive branch has the expertise

in national security, and the Court should not be making

judgments as to which particular surveillance unit should be

conducted.

Finally, it replaces a 6-year sunset with a 4-year sunset. As the Senator from Massachusetts said, this bill ought to be reviewed continually. Exactly. That is what the intelligence community should do. We should not have a provision that would sunset the authority for our collection of vital information. But we should have continuing oversight which the Intelligence Committees have provided and will continue to provide to make sure that collection is proceeding in a manner consistent with the Constitution, with the laws, and the regulations overseeing it.

We provide a robust oversight of the NSA collection. That collection must be done in a manner consistent with the guidelines that Congress has laid down, the Constitution has laid down, and the administration has laid down. If there is any problem with that, then it is up to the Intelligence Committees of both Houses to bring before the Congress, if we cannot correct it by interceding with the people in the agency, a bill to change it.

I see my chairman, Senator Rockefeller, is here. I will be glad to yield the remaining 3 minutes of my time to the distinguished chairman of the committee.

I am going to offer a motion to table, but yes.

Mr. President, I move to table, and I ask for the yeas and nays.

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

The motion to lay on the table was agreed to.

Mr. President, I thank the chairman for his extensive discussion of this measure. This is one of the significant additions we are making to the preexisting FISA law. It is something that was brought up and discussed in the committee. There was general agreement that an American or a U.S. person who goes abroad ought to be provided some form of protection. We discussed it at length.

The objective was provided in a very brief statement in the amendment that appeared before the committee. I was very concerned about it because I knew just enough about the FISA law to be thoroughly confused about how it would work. I voted against it but expressed my desire and willingness to work with the sponsor of this amendment and the other members of the committee because it was a good idea.

Well, we found out how complicated it is to amend and to change the FISA law because of the many working parts, not only within the law but within the actual means of interception.

Well, we worked for better than a month on a bipartisan basis with the proponents of this measure--and I consider myself a proponent of this measure--with the intelligence community, lawyers for the Department of Justice, and we came up with a simple little 25-page statutory provision. It is now included in the managers' amendment.

Should anyone think it is simple to amend FISA, I suggest you begin reading at page 5 of the measure before us, and read through page 29, I believe it is, to show how it is accomplished. Nevertheless, this puts in a new layer of protection for U.S. persons. Obviously, we are concerned. Those are American citizens who are abroad.

There were questions raised: Well, if I go abroad, can the intelligence community tap my phone without a court order? Well, first of all, the intelligence community is not going to be tapping anybody's phone or trying to listen in on any--intercept any conversations unless they have good, solid information that that phone is in a terrorist's hands. They have to have intel before they even look at that conversation. That intel could come in many forms which I won't describe here, but that--first of all, if you are abroad, you would not have been targeted unless you had certain reasonable connections with a terrorist activity or a terrorist who would give the Attorney General and the intelligence community the basis for asserting that there was a terrorist content to the phone conversation.

Now, why do they do this? Because they have more communications than they can handle. They have more terrorist communications almost than it is possible to keep up with. The last thing they want to do is target a conversation of a U.S. person or an American abroad who doesn't have any connection to terrorist activities. So previously, only if there was one of the connections that would give reasonable grounds to lead the Attorney General to say that there was valuable foreign intelligence collection would you collect on it. But now, if that is an American citizen or, more broadly, a U.S. person, they have to go to the intelligence court, the FISC, to get an order--two different kinds of orders depending upon how the collection is going to occur--and get an order finding that there is probable cause to believe, as the chairman has said, that this person is an agent, officer, employee of a foreign power and has foreign intelligence information that may be communicated.

So this is a protection that I hope those concerned about the use of electronic surveillance will understand is a significant step we have taken toward protecting the rights of American citizens. But I point out the fact that it took us a month and about 24 or 25 pages to accomplish it. But with that being said, I urge my colleagues on both sides of the aisle to support it. This is a major new expansion of protection for American citizens, U.S. persons, and this is one of the privacy constitutional right protections added by this bill that was never there before. I urge my colleagues to support it.

Mr. President, I yield the floor.

Mr. President, this measure has been considered in the Intelligence Committee. I believed it was not necessary to require additional paperwork, but also I think it is important to note that some of the charges made about the powers given to the intelligence community are way out of bounds.

This measure before us does, in fact, put further constraints on the intelligence community. There are powers that exist in both the intelligence community and in law enforcement agencies which may not be affected here. But to say this offers broad new means of getting into business records and other personal effects of individuals--this is a bill devoted to electronic surveillance. The reason we needed to do the bill on electronic surveillance was the fact that the means of electronic surveillance have changed, and the old FISA law did not permit the kind of collection that previously was permitted when communications outside the United States were by radio rather than by cable.

The whole purpose of this bill is to ensure that there are procedures in place to permit surveillance targeting people reasonably believed to be outside the United States who have connections with terrorist activities, so that they are an agent or an employee or an officer of a foreign power and have legitimate foreign intelligence information. That is the test. That is what this does. Arguments about the nature of foreign intelligence surveillance should be limited to this bill.

Mr. President, I yield the floor.

Mr. President, I send a second-degree amendment to the desk and ask for its immediate consideration.

Mr. President, I ask unanimous consent that the reading of the amendment be dispensed with.

Mr. President, as the sponsor of the first-degree amendment has noted, this was debated and it was adopted on I believe a 10-to-5 or 9-to-6 vote in the committee, but we found out there were substantial problems with this amendment to which the intelligence community objected. We modified it to the provisions that are now in the current managers' amendment and the underlying bill.

The major problem with this amendment is the pleadings. Pleadings have historically been protected during any litigation involving FISA. Congress has only received limited access to certain pleadings, certain actions for audit purposes in controlled circumstances.

This amendment I have offered incorporates the national security protection, which the author of the underlying amendment suggested, and it does provide for the 5 years of back opinions from the FISC. This gives the 5 years. We have had semiannual reports from the FISC on all of the opinions handed down in the previous 6 months.

It is somewhat burdensome, but I have been negotiating with the Department of Justice lawyers. They say while it is burdensome, this is not objectionable. They prefer not to have it, but the one thing on which they are standing firm and believe they cannot accept is to require turning over the pleadings.

The pleadings are actually some of the most sensitive intelligence information we have because in those pleadings the Government has to describe the facilities to be used, the targets of the collection, the information, and how the information is going to be collected, who gave them the information, how they got it. This is the ultimate description of sources and methods. Any time the sources and methods or the assets are disclosed, it is possibly a death sentence to someone who is working with us undercover or as an agent. The Department of Justice believes this information is so sensitive that it has to be kept extremely closely held within the court and the people who must see it to issue the order. Without that protection, they believe that our most sensitive assets, our means of collection, where the facilities are, the whole framework of our intelligence system could be brought down. The opinions themselves go into legal reasoning; they give the justifications. They are the end product of the work of the FISC.

What the Department of Justice says the intelligence community is unwilling to give is to lay out and submit to Congress the whole list of information of sources, methods, facilities, targets, the names of assets, or the identification of assets that could result in death for the informant, the agents, or the assets.

We have accepted a portion of the amendment proposed by the Senator from Wisconsin. This accepts another portion, but that final portion is objectionable and is a red line. I urge my colleagues not to support the amendment which turns over the very most secret sources and methods which the intelligence community cannot afford to share.

I yield the floor.

Madam President, I thank my colleague from Oregon. As usual, he states objectives that he and I agree with. We both have the same desire, to protect American citizens, U.S. persons, certainly military men and women and their families on military bases.

I would say to my friend, under the clear provisions of section 703 and 704, if they are an American military person overseas, the first test would be: Are you an officer or an employee of a foreign government?

Obviously, they are employees of our Government. But you would have to be acting as an agent of a foreign power, and, furthermore, there would have to be intelligence information provided showing that there was reasonable grounds to believe there was intelligence information.

Now, there could be the situation, as there has been in the past--it has happened within the CIA; it has happened within the military--that some person may turn into an agent of a foreign power even though they are wearing our uniform. That is a very rare situation. But in that instance, then, you would be able, if you had intelligence information, to suggest this person was acting as an agent and had the appropriate foreign intelligence.

Absent that, nobody is going to sweep them up, nobody is going to listen in, nobody is going to listen in to their phone calls back home to their families or their families' calls to them.

Now, my colleague mentioned some other questions about collection. And this is a very important discussion, a complicated discussion, but regrettably a classified discussion. So let me suggest to him that we understand. He has talked to the Department of Justice. I believe they have had some confidential discussions. We would be happy to have more with him. I regret we cannot have them on the floor of the Senate because they go into matters which are classified.

But he and I share the same objective. We have slightly different ways of getting there. There are certain items I think have to be discussed off the Senate floor.

I yield the floor.

Madam President, I must object to that. I do commend the Senator from Rhode Island and the Senator from Oregon for their leadership on the issues which they have addressed. They have made a strong push, and they worked with us through the 20-plus pages of construction to get a workable means of achieving the goal they so eloquently champion. We will continue to work with them on those efforts dealing with the items the Senator from Oregon addressed. However, I must object to setting aside the pending amendment.

Madam President, we too want to move through this bill. This amendment, sponsored by the Senator from Rhode Island, was included in the Judiciary Committee substitute for the Intelligence Committee bill. We defeated that.

The chairman of the Judiciary Committee has said we are going to come back and vote on all of these amendments one by one. At this point I think it is appropriate that the leaders are discussing or will discuss how we are going to proceed. In the meantime, we are not going to set aside amendments

until we have some direction from the leadership on how they wish to handle these amendments.

On the substance of the amendment, earlier today in discussing the Judiciary Committee substitute, I pointed out that the FISA Court, or the FISC as it is called, has said: We are not going to get into this area. We don't want to get into the business of trying to oversee how foreign intelligence is collected. That means whether it is collected or whether there is incidental collection, those challenges are significantly different from the challenges that the FBI would face in carrying out their court order.

But it should be noted, as I believe the Senator from Rhode Island has, that the FISA court order, the FISC, will set out the requirement that minimization procedures be followed. There will be significant review and oversight of those because the person conducting the surveillance has a supervisor who will look over their shoulder. That supervisor knows there will be a representative of the inspector general who is watching, who is looking for any problems. That inspector general knows there will be a lawyer from the Department of Justice overseeing it to assure there is compliance.

We have an Intelligence Committee with a very able staff, some of whom understand very well how the NSA programs work, whether it is under the FISC or under the previous time. It is our job, under our challenge, our charter, as an oversight committee of the intelligence community, to make sure these laws are followed. So I will say that when the FISC was challenged to take on a broader role in handling foreign intelligence, they stated in the December 17 released opinion, In re Motion for Release of Court Records, at the very bottom of page 19, footnote 31, the appellant claimed that the court could conduct a review because it is a ``specialized body with considerable expertise in the area of national security.'' The FISC itself said that this overstates the FISC's expertise:

Although the FISC handles a great deal of classified

material, FISC judges do not make classification decisions

and are not intended to become national security experts. . .

. (FISC judges are not expected or desired to become experts

in foreign policy matters or foreign intelligence activities,

and do not make substantive judgments on the propriety or

need for a particular surveillance). Furthermore, even if a

typical FISC judge had more expertise in national security

matters than a typical district court judge, that expertise

would still not equal that of the Executive Branch, which is

constitutionally entrusted with protecting the national

security.

They cite a case, which says:

. . . (``a reviewing court must recognize that the

Executive departments responsible for national defense and

foreign policy matters have unique insights'' into national

security harms that might follow from disclosure). . . .

At the end it says:

For these reasons, the more searching review requested by

the [appellant in that case] would be inappropriate.

So while there are court orders that the minimization procedures be followed, there is an existing framework for significant oversight, and there is the oversight not only by the executive branch but by the legislative branch, and the FISC says that is not the business they are to get into.

We will have an opportunity to revisit this when the matter is brought up. But I wanted to advise my good friend, a diligent worker on the Intelligence Committee, why we had argued against that provision in the amendment or the substitute that the Judiciary Committee proposed.

I thank the Chair and yield the floor.

I object, Mr. President.

Mr. President, if I may respond to the Senator from Rhode Island--I apologize to the Senator from Maryland--I say to the Senator from Rhode Island, what I said was his provision was in the Judiciary substitute that we defeated. We did not deal with his amendment in the Intelligence Committee. We discussed it. He offered it, and it was accepted in the Judiciary substitute. That amendment was defeated.

What I raised was the concern that our leadership has about going back and revisiting all the elements of the Judiciary substitute.

I thank the Chair, and my apologies and thanks to my colleague from Maryland.

Madam President, the Senate now returns to the consideration of S. 2248, the FISA Amendments Act.

As I said in December when we debated the motion to proceed to this bill, I believe this legislation is critical to our Nation's security. That phrase is thrown around a lot--``our Nation's security.'' It does have meaning. To protect America from the panoply of threats we face around the world, we must know what our enemies are planning and what they are doing. We get that information through our intelligence agencies, and one of the most useful sources for them is communications intelligence.

The Foreign Intelligence Surveillance Act, or FISA, gives the Government the authority, with court approval, to collect communications intelligence inside the United States. Unfortunately, the law has not kept pace with the incredible advances in telecommunications technology of the last 30 years.

As this debate proceeds over these coming days, it is important for all Members to understand why FISA exists and why it is necessary for us to update it. The Congress passed FISA to protect Americans inside the United States from inappropriate eavesdropping by the Government. The FISA statute created a system that allowed the Government to go to a special court and show probable cause that someone inside the United States was an agent of a foreign power. If it agreed, if the court agreed, the court then issued an order allowing the Government to collect the intelligence.

Over time, the flow of global communications changed. The nature of these communications changed. The system of fiber optic cables carrying international communications grew, and wireless technology began to dominate our domestic system. This was a marked change from the communications architecture that existed in 1978, when FISA was started, when local

calls were transmitted over a wire and international ones usually went via satellite.

As technology changed and America became the hub for international communication, our intelligence agencies were presented with collection opportunities that were never envisioned--never even thought about in 1978. But because of the way that FISA was drafted, they were unable to take advantage of the new opportunities to collect significant intelligence inside the United States against targets located overseas.

After September 11, 2001, the President chose to deal with the problem unilaterally and created a warrantless surveillance program that relied on, to my mind, questionable legal justification. I think that was a mistake. I believe the President should have sought, and would have received from Congress, the necessary changes to FISA to accommodate the international communications he wished and needed to target.

The public disclosure of the warrantless program ultimately led the President to seek approval from the FISA Court and then to seek additional authority from the Congress, which is where we are.

Our first attempt to address this issue was the Protect America Act passed last August. That legislation allowed our intelligence community to undertake the collection needed to monitor terrorist communications, but the PAA, as we shall call it, is flawed legislation that does not achieve the balance between protecting security and preserving our civil liberties, which is so essential. It provided an expanse of new authority to collect intelligence inside the United States, with little court involvement or oversight from the Congress.

But we had the foresight to include in the PAA--the Protect America Act--a 6-month sunset. That 6-month period allowed us the time we needed to craft a bill that does achieve this important balance: security and civil liberties. It gives the intelligence community the authority it needs to keep us safe, and it puts in place the safeguards needed to protect America's liberties. That is the bill the Senate is now considering; i.e., S. 2248.

This bill was reported to the Senate last October on a strong bipartisan vote under Senator Bond and myself, Vice Chairman Bond and myself, by a vote of 13 to 2. Vice Chairman Bond and I worked hard to craft a bill that would garnish support from both sides of the aisle and that would have the support of the administration, leaders of the intelligence community and, most importantly, would achieve our twin goals of protecting the security and privacy of Americans. I should say at this point we went to great lengths to check all our bases in this process. We didn't do this in a cocoon and we didn't do it in a partisan way. We reached out to the experts, whether they were inside the administration or outside the administration. We wanted to do it so we could make this legislation as effective as possible.

But, as with any legislation, this bill is not perfect. I have welcomed the input from others as we have moved forward. On this point, I must particularly acknowledge the work of the Senate Judiciary Committee. The Judiciary and Intelligence Committees shared jurisdiction over FISA. The Judiciary Committee also happens to be led by two individuals with considerable knowledge and experience with these issues from the perspective of both committees. It may not be known to all, but Senator Pat Leahy served as vice chairman of the Intelligence Committee in the mid-1980s, and Senator Specter served as chairman in the mid-1990s. I appreciate the time and thought they have put into this legislation.

The Judiciary Committee considered the Intelligence Committee bill on sequential referral and has reported a proposed amendment to our bill. That amendment is now the pending amendment. The Intelligence Committee bill and the Judiciary Committee amendment take a similar approach to addressing the underlying problems with FISA--not a huge difference. The Judiciary Committee included several provisions that I think further improve the already robust protections for privacy contained in S. 2248. We were enriched by working with them.

I intend to support amendments to incorporate many of these changes into the underlying bill, which is the Intelligence Committee bill, and even though I cannot support everything in the Judiciary Committee substitute amendment, nevertheless, there is very good material there.

Before I discuss possible amendments, let me take a few minutes to walk through the bill before us today. I apologize, but I think this is necessary as we begin this debate on what is a highly complicated and somewhat arcane subject.

In crafting this legislation, the Intelligence Committee set out to accomplish four main goals.

First, we wanted to ensure that activities authorized by this bill are only directed at persons outside the United States. The bill requires the FISA Court to approve targeting procedures designed to accurately make the determination of whether someone is outside the United States. For individuals inside the United States, the existing procedures under FISA continue to apply. Individual court orders, FISA orders, are still required.

Secondly, our bill improves the protection of information from or about a U.S. person. Unlike the Protect America Act, this bill provides for court review of the so-called minimization procedures. These are procedures used to shield information about Americans who may be overheard or mentioned in the conversation of foreign targets.

Court review of these procedures is central to the protection afforded under FISA. But the FISA Court's role was left out of the Protect America Act.

Third, the bill includes a new protection for U.S. citizens outside the United States. The Intelligence Committee rejects the proposition that Americans lose their privacy rights because they travel or work elsewhere in the world.

Under current law, the intelligence community can target U.S. citizens outside the U.S. solely on the authority of the Attorney General. Our bill requires an order of the FISA Court before an American can be targeted, regardless of the American's location. This is a concept that both committees endorsed, and it enjoys bipartisan support. Director of National Intelligence Mike McConnell also endorsed this in testimony before the Intelligence Committee. This is an area of law, however, that requires careful attention to avoid, as the Director described, ``unintended consequences.''

Both the Intelligence Committee and Judiciary Committee approaches need further refinement. Therefore, I believe we have reached an agreement on a bipartisan amendment that would reconcile the approaches of the two committees and resolve the concerns of the administration. Vice Chairman Bond and I will offer this modification as part of the managers' amendment.

Finally, the Intelligence Committee bill adds significant new oversight authority to collect inside the United States against foreign targets. The new oversight will be conducted by all three branches of Government.

The bill includes a series of annual reports to Congress on the authorized collection, including instances of noncompliance; inspector general reviews by the Justice Department and the Intelligence Committee; and FISA Court review and approval of acquisition and minimization procedures.

Beyond these steps to update FISA, the other major component of the bill passed by the Intelligence Committee--and, unfortunately, not included in the Judiciary Committee amendment--is liability relief for companies that may have helped the Government collect critical intelligence after the September 11 terrorist attacks.

I understand this is controversial. But everybody should know that this is an issue the Intelligence Committee has considered very carefully. We had a number of hearings on this subject. In reviewing the record of correspondence from the administration to these companies, I and most members of the committee became convinced that companies acted in good faith. They relied on the legal conclusion of the Nation's most senior law enforcement official, and they provided assistance because they wanted to help stop terrorist attacks.

The companies received letters, and I tried very hard to convince Steve Hadley--Director McConnell very much approved of this--to make it possible for every Member of the Senate to have those letters that the companies received from the National Security Agency, so Members could understand that this was not some kind of a game, that this wasn't ``wordsmithing.'' What these letters stated was that the companies' assistance was ``required,'' that the requested assistance was based on an order of the President, and that the Attorney General had certified the legality of the order. And then the NSA Director, as I say, required, compelled these companies--there were various uses of words, but they were all very firm, leaving no wiggle room--to comply. And they did. They did it because they were told to do so by the highest authorities in the land. They did so because--I believe it is possible to say this--there are a lot of big corporations that are very patriotic.

Private companies should be allowed to rely on this assertion from these high officials. They should be allowed to do that. Our longstanding legal structure is specifically designed not to force a private company to second guess the Government in these circumstances. I know many colleagues on the other side believe that the President acted with his constitutional authority when he established this program. I believe the legal foundation for this program was questionable at best and was part of an overarching legal framework that sought to dramatically alter the balance of power between the branches of power in favor of the executive. But that is a dispute that needs to be settled between the President, the Congress, and the courts. We should not allow private companies who simply wanted to come to the aid of their country, or were required or compelled to do so, to be caught in the crossfire of this disagreement.

A bipartisan consensus of the Intelligence Committee supported the narrowly drawn liability relief included in the bill. We did not include the open-ended immunity sought by the administration that would have prevented suits against the Government, or Government officials who knowingly broke the law.

The committee's liability relief provision applies only to companies who may have participated in the warrantless surveillance program after September 11, 2001, until January 2007, when the whole matter was placed under FISA Court authority. That is why there can be no question about prospective; it is retrospective.

The question of whether the President had the authority to launch the warrantless surveillance program leads me to the issue of exclusivity. This is whether FISA is the exclusive means by which the President may authorize the surveillance of Americans for foreign intelligence purposes.

The President's justification for creating the warrantless surveillance program relied in part on a claim that the legislation authorizing the use of military force after 9/11 somehow gave him the authority to ignore the FISA statute. I don't buy this argument.

The President also claims he has the authority, as Commander in Chief, to approve surveillance even when statutes of this coequal branch of Government would prohibit him specifically from so doing. No act of Congress by itself can finally resolve the debate between Presidential and congressional authority.

We can make it clear, however, which statutes authorize the use of electronic surveillance. This is not academic. It is important to clarify this point for the future. When the Nation next faces a military emergency, we don't want Congress to hesitate while it debates whether its authorization to use force will have unintended consequences, such as authorizing the President to spy on Americans.

To avoid this situation, both the Intelligence and Judiciary Committees included provisions intended to clarify which statutes constitute the exclusive means for conducting electronic surveillance. I have worked with Senator Feinstein, who serves on both committees, and Senator Leahy on an amendment that will bridge the differences between the two bills and will settle this issue in a way that I think clarifies the statute.

Another important provision is the sunset. This bill provides a significant new authority, and it is essential--because it is a significant new authority in what is still emerging in the collection of intelligence--that we carefully monitor the implementation of this authority and revisit it to ensure it is working as we now envision.

The Intelligence Committee bill includes a 6-year sunset. The Judiciary Committee has a 4-year sunset. I will join with Senator Cardin and others in support of an amendment to incorporate the Judiciary Committee 4-year sunset into the underlying bill. Four years will ensure that the decision on permanency is made during the next Presidential term.

As we proceed with this debate, every Member should have the same two goals we had in the Intelligence Committee: providing our intelligence professionals with the tools they need to keep us safe, and establishing a system with sufficient safeguards to ensure that Americans' civil liberties are protected over the long term. I think the Intelligence Committee bill does that, and with a few changes it will be even stronger.

I yield the floor.

Would the distinguished vice chairman be willing to yield for a parliamentary matter?

Mr. President, I ask unanimous consent that the time until 2 p.m. today be for debate prior to the vote in relation to the Judiciary Committee amendment, as modified, with no amendment in order to the amendment prior to the vote, with all time equally divided and controlled between Senators Leahy and Bond or their designees, with the 30 minutes prior to the vote divided as provided above, with Senator Leahy controlling the final 15 minutes and the vote will be at 2.

Mr. President, I wish to take a few minutes to describe to the Senate my views on the amendment reported by the Judiciary Committee, and why I will be opposing the amendment when we vote at 2.

First, I wish to repeat a few comments I made in my opening remarks when we debated the motion to proceed to S. 2248 in December.

From the beginning of the Senate's consideration of foreign intelligence surveillance legislation in 1976, the resulting law--the Foreign Intelligence Surveillance Act of 1978--has been the joint responsibility of both the Intelligence and Judiciary Committees. FISA is, after all, a law that concerns both intelligence collection and judicial proceedings.

The bill now before the Senate, S. 2248, was reported to the Senate by the Intelligence Committee last October, and then sequentially reported to the Senate by the Judiciary Committee in November.

As a parliamentary matter, the measure as reported by the Judiciary Committee is the pending amendment to the bill reported by the Intelligence Committee.

I agree with a number of the recommendations of the Judiciary Committee. I have been pleased to work with members of the Judiciary Committee on modifications that address particular concerns that had been raised by the administration.

I will accordingly support individual amendments to add those recommendations, as modified when necessary, to S. 2248. These include a strengthened exclusivity provision, a 4-year sunset, court review of compliance with minimization procedures, and an inspectors general report on the President's warrantless surveillance program in order to ensure there is a comprehensive historical record of that experience.

While I support many aspects of the Judiciary amendment, I cannot agree with recommendations of the Judiciary Committee that may have an adverse impact on U.S. intelligence collection or collection analysis, and that are not warranted by a realistic concern about U.S. privacy interests.

If any of those provisions are offered as individual amendments, I will, of course, study them, but must reserve the right to oppose them.

I will illustrate my concern by describing two provisions of the Judiciary amendment.

The Judiciary Committee substitute contains a ``significant purpose'' requirement. This has been described as a way to prevent reverse targeting--that is, conducting surveillance of a person overseas when the real target of the surveillance is a person within the United States.

The Intelligence Committee bill already explicitly codifies the existing prohibition on reverse targeting. What the Judiciary Committee substitute actually does is turn the reverse targeting prohibition on its head. I fear it would impose a new affirmative requirement that the government must seek a FISA Court order when in the course of targeting a foreign person outside the United States the government incidentally collects the communications of U.S. persons.

This is unworkable and would create untenable gaps in our intelligence coverage without significantly enhancing the privacy of Americans. Incidental communications with or about Americans should be handled properly, through minimization--a process that

is strengthened in our bill. But the fact that there may also be a foreign intelligence interest when a foreign target is in contact with the United States should not be the cause of making it more difficult to undertake the surveillance of the foreign target.

The Judiciary Amendment also includes a provision altering the consequences of a FISA Court determination that there is a deficiency in the Government's targeting or minimization procedures under the new foreign targeting authority that will be enacted in S. 2248. Upon such a court determination, the Intelligence Committee bill would require the Government to either correct the deficiency or cease new acquisition.

The Judiciary Committee provision goes beyond the requirement that deficiencies be corrected or new acquisitions ceased. It would take the further step of preventing all use of information already acquired under the new procedure that concerns U.S. persons, unless the Attorney General determines that the information indicates a threat of death or serious bodily harm.

The provision is impractical. And it creates risks that we will lose valuable intelligence.

The Judiciary Committee provision would require intelligence analysts to go through all of the intelligence that had been collected under the new process--presumably a very large collection of materials--to identify information that might be subject to the restriction and make sure that it had been not used in disseminated intelligence.

Even for minor deficiencies in procedures, this provision would therefore require the Intelligence Community to discard information that might constitute significant intelligence, and to focus its analytical resources on satisfying this provision rather than collecting and analyzing new intelligence. In my view, this allocation of resources makes no sense.

At the end of our debate this morning, the Senate will be asked to vote on the pending Judiciary Committee amendment as a whole, either by way of a tabling motion or directly on the amendment.

Although, as I have indicated, there are parts of the Judiciary amendment that I look forward to supporting, there are two reasons, with all respect to the members of the Judiciary Committee, why I cannot support the pending substitute amendment as a whole.

The first is that the form, and consequently the effect of the amendment, goes beyond what the members of the Judiciary Committee decided during their deliberations, and guts key parts of S. 2248 beyond any reasons agreed to by a majority of the Judiciary Committee.

S. 2248 has two substantive titles, in addition to a third title on transition procedures.

The first title addresses intelligence collection; it is the direct replacement of the Protect America Act.

The second title addresses the many lawsuits against telephone and internet companies for their alleged cooperation with the Government.

At its markup, the Judiciary Committee rejected, by a clear 7-to-12 vote, an amendment to strike title II on liability protection. Previously, the Intelligence Committee had voted against striking title II by a 3-to-12 vote. In short, while there may be good ideas, that certainly merit debate, about improving title II, there has not been majority support in the Senate for striking it.

Yet, notwithstanding the lack of support in either the Judiciary or Intelligence Committee for striking title II, the form in which the Judiciary Committee reported its amendment would do just that.

We will welcome a debate about improving title II, but on behalf of the Intelligence Committee--which voted overwhelmingly for title II--I must defend keeping title II in the base text before the Senate. For that reason alone, I must oppose the Judiciary amendment, even as I support individual elements of it.

Second, as I have previously mentioned, even with respect to title I, there are portions of the Judiciary amendment that I must oppose on the ground that they will have an adverse impact on intelligence collection or the use of intelligence that is not warranted by a realistic concern about U.S. privacy interests.

Accordingly, with great respect for my colleagues on the Judiciary Committee, I will vote against the Judiciary amendment. I also look forward to joining them in urging the adoption of specific amendments to improve the Intelligence Committee bill.

Mr. President, I send an amendment to the desk on behalf of myself and Senator Bond and ask for its immediate consideration.

I ask unanimous consent that reading of the amendment be dispensed with.

Mr. President, the distinguished vice chairman, Senator Bond, and I have joined in a bipartisan amendment to S. 2248, the FISA Amendments Act of 2008. The Rockefeller-Bond amendment perfects various details of the underlying bill but its main purpose is to provide explicit statutory protection, for the first time in the 30 years of FISA, for Americans who are outside the United States.

The amendment stands for the simple proposition that Americans, whether they are working, studying, traveling or serving in our Armed Forces outside the United States, do not lose their rights as Americans when it comes to the actions of their own Government. In 1791, when the Bill of Rights was ratified, including, of course, the fourth amendment, which protects our people from unreasonable search and seizure, there were 4 million Americans. That was it. Now that very number of Americans, 4 million, lives outside the United States and, of course, many millions more travel each year outside the United States.

Because this amendment is so important and because it has gone through so much development to reach the point at which we have now arrived, I would like to take, frankly, a few minutes to describe its origin and evolution, with the forbearance of my colleagues.

The protection of Americans outside the United States may have been the single most important piece of business left undone by the original FISA statute created in 1978. To fill that void, President Reagan issued an executive order, Executive Order 12333, that addresses the use of intelligence techniques such as electronic surveillance or unconsented searches against Americans abroad.

Executive Order 12333 requires that intelligence agencies have procedures and that those procedures protect the constitutional rights of Americans overseas. It also requires the Attorney General to determine that there is probable cause to conclude that the American overseas is an agent of a foreign power before the U.S. Government undertakes electronic surveillance or conducts searches abroad against that person. That was good but insufficient. In our country of laws, we do not usually leave it, outside of an emergency, to any Attorney General to decide alone whether there is probable cause for a search. That is a decision which we entrust to neutral judges.

Our bipartisan amendment--Senator Bond's and mine--makes sure Americans do not lose that important protection by setting foot outside the United States.

Vice Chairman Bond and I took the first step when we included, in our October Intelligence Committee mark, a provision concerning acquisition by the intelligence community of the communications of U.S. persons abroad.

We focused our proposal on the circumstance when the Government is seeking those communications from electronic communication providers within the United States. We did not address the targeting of U.S. persons overseas by intelligence community collection methods that are employed outside the United States.

The provision before the Intelligence Committee in its October markup would have allowed the Attorney General to determine that a U.S. person outside the United States was a foreign power, agent of a foreign power, or an officer or employee of a foreign power, and then target that person for collection. Under our proposal, the Attorney General would then have been required to submit that probable cause determination to the FISA Court for review.

But as the chairmen and ranking members of committees sometimes learn from their full membership of

their committees, important ideas may require broad solutions.

During our committee markup, Senator Wyden offered an amendment on targeting U.S. persons abroad that substituted two new sections in place of the language described above on targeting U.S. persons abroad.

First, the Wyden amendment required the Government to obtain a standard FISA order for electronic surveillance--known as a title I order--before the Government could target U.S. persons outside the United States by seeking their communications from providers in the United States.

Thus, rather than the new procedure described in our chairman and vice chairman mark, the amendment required a title I FISA application and order whenever the collection against an American abroad occurred with the assistance of a provider in the United States.

Second, the Wyden amendment required that the Government, when acting outside the United States, obtain a FISA Court order before targeting the communications of U.S. persons located outside the United States.

Specifically, it required a FISA Court order that there was probable cause to believe that the U.S. person who was the target of surveillance was, in fact, a foreign power or an agent of a foreign power before the Government employed surveillance techniques outside the United States. This second part of the Wyden amendment implemented an entirely new concept of law.

A court order has never before been required for foreign intelligence collection that is conducted entirely outside the United States, even if that collection involves U.S. persons. But while new, it quickly became evident it was an idea whose time had come. The Wyden amendment passed the committee with a vote of 9 to 6.

Yet, as often is the case for an initial amendment of such magnitude, it was also immediately clear that further work needed to be done before the proposal became law to make sure it worked well in practice.

During the markup, Senator Whitehouse, who is a member of the Judiciary Committee--and in his first year in this body has already emerged as a leading legal voice among us--stated he would be willing to work on the language of the amendment in the Judiciary Committee, on which he also serves, during the sequential referral process to ensure that it achieved its desired goal and did not result in unintended decreases in collection.

Senator Whitehouse, working with the Department of Justice, was largely responsible for the changes made to the provision on U.S. persons outside the United States that is included in the Judiciary Committee substitute amendment. It is a good amendment.

He focused his efforts to changes on the second part of the section, the portion relating to collection of electronic communications outside the United States. The provision requiring a traditional FISA electronic surveillance application for collection inside the United States remained mostly unchanged in the Judiciary Committee markup.

The Judiciary Committee amendment makes some necessary technical fixes to the section on collection outside the United States. It stressed that the FISA Court would only be permitted to assess the question of probable cause for collection outside the United States, not the methods of acquisition of the information, as any such inquiry might delve into very sensitive intelligence matters.

The Judiciary Committee section on collection outside the United States also made three other important changes:

First, the addition of emergency procedures, similar to those included in other parts of FISA, that would allow the Attorney General to acquire the information as long as a subsequent order is obtained; second, a more explicit, individualized review of minimization procedures; and, third, the addition of procedures to transition current acquisitions under Executive Order 12333 over to the new procedure.

The managers' amendment, offered by Senator Bond and myself, now seeks to complete this process by fully integrating the new procedure into the overall reforms contained in the FISA Amendments Act of 2008 and does so in a manner that maintains an effective system of intelligence collection.

In the course of doing that, we have sought to resolve, in conjunction with the Department of Justice and the intelligence community, several problems identified with the Judiciary Committee substitute.

The most significant changes in the managers' amendment have been made to the first part of the Wyden amendment: the requirement that the Government obtain standard electronic surveillance--title I--orders for the targeting of U.S. persons abroad that occurs within the United States.

That provision, as of this moment, remains a part of our base bill and will remain so until an amendment is adopted. As I will discuss in more detail, our proposed changes are required because the language of this provision, as reported out of both the Intelligence and Judiciary Committees, would prevent certain types of important foreign intelligence collection.

First, the definition ``agent of a foreign power'' in FISA, which requires a U.S. person to have engaged in certain types of wrongdoing, is different than the definition of ``agent of a foreign power'' that has traditionally been used in overseas collection against Americans.

The Director of National Intelligence has therefore proposed, and we agree, that collection against a U.S. person abroad should be expanded beyond ``agent of a foreign power'' to ``an officer or employee of a foreign power,'' to cover the types of collection that have traditionally been allowed against U.S. persons overseas.

For example, the notorious Charles Taylor, the former President of Liberia, who is now charged with crimes against humanity, is an American who was an officer of a foreign power.

Second, the Judiciary Committee provision did not deal with the issue of stored electronic communications or stored electronic data, the collection of which is dealt with under title III rather than title I of FISA and which are an important part of the acquisition system that is established by the new title VII that S. 2248 will add to FISA.

To address this issue, the managers' amendment that Senator Bond and I are proposing, after extensive technical consultations with the intelligence community and the Department of Justice, adds two sections to the new title VII in our committee's bill, and, in so doing, addresses the intelligence collection concerns identified by the Director of National Intelligence.

By placing all the relevant detail for collection against U.S. persons overseas in the same new title of FISA--title VII--that includes all other procedures for persons outside the United States, the managers' amendment provides a comprehensive, consolidated roadmap for all those in the intelligence community, the Department of Justice, and the FISA Court who will have the responsibility to implement our amendment.

In conclusion, I would like to underscore some major points.

As is evident from everything I have described, it is important to thank two members of our committee for their work on this issue of targeting Americans overseas.

Senator Wyden, obviously, is one of those. I wish to recognize his leadership at all times in this area. He recognized the importance of the issue and successfully offered an amendment at the Intelligence Committee mark-up that broadened the protections contained in our bill.

Senator Whitehouse has been indispensable contributor to the effort on this provision as well, quietly working out problems and making things work better. His work goes a long way toward ensuring that the provision can be successfully implemented by the intelligence community, which is key.

By adopting this amendment on a bipartisan basis, the Intelligence Committee--and now the vice chairman and myself in our managers' amendment--seek to ensure that Americans are protected from unwarranted surveillance, whether they are inside or outside the United States.

This is a significant new protection for U.S. persons. When the United States conducts foreign intelligence collection overseas on a U.S. person located outside the United States, currently only the Attorney General, not a court, makes a probable cause determination. I have said that. U.S. citizens have never before been entitled by

statute to court protection in this area. Now, hopefully, they will be.

Our bipartisan goal is clear: A court must be involved when U.S. persons are targeted for surveillance, no matter where those persons are located or how they are targeted.

We are also in agreement that our original committee provision and the work of the Judiciary Committee needed refinement to ensure it did not have unintended consequences that might limit the collection of foreign intelligence information. The purpose of our amendment is to make sure we do not reduce the scope of any current intelligence collection.

Our managers' amendment accomplishes this goal. Under the managers' amendment, if a U.S. person is targeted overseas by using a communications provider within the United States, FISA will now require that the Government submit an application to the FISA Court and obtain a FISA Court order. Although the process to obtain the order is tailored to address some of the operational concerns relevant to the issue of collection on U.S. persons located outside the United States, and consolidated in a new title of FISA, the procedures are as robust and protective of the privacy rights of U.S. persons as existing FISA procedures.

If the acquisition occurs outside the United States, FISA will now require that the FISA Court issue an order finding that there is probable cause to believe the U.S. person who is the target of the acquisition is an agent, officer or employee of a foreign power, without involving the FISA Court in the methods of overseas collection.

Those methods of overseas collection will continue to be governed by applicable executive branch directives, such as Executive Order 12333, which impose limits on intelligence agencies in order to protect the constitutional rights and other legal rights of Americans.

Mr. President, I urge the adoption of this amendment.

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

Mr. President, I am back again tonight to talk about the Medicare drug benefit. As I said yesterday, the 110th Congress will consider legislation that would fundamentally change the benefit. The public and Medicare beneficiaries need to fully understand the proposed changes and how they would affect them.

When we talk about the public and Medicare beneficiaries, remember, for the most part, we are talking about the senior citizens of America and people who are on Social Security disability.

Yesterday I spoke about how the benefit uses prescription drug plans in competition to keep costs down and how well that has worked. Today I want to get to the crux of this debate, the so-called prohibition on Government negotiation with drugmakers.

Opponents of the Medicare drug benefit have twisted the law to come up with their absurd claim that Medicare will not be negotiating with drugmakers. They misrepresented the noninterference clause. The language does not prohibit Medicare from negotiating with drugmakers; it prohibits the Government from interfering in negotiations that are ongoing all the time.

So it is a prohibition on Government negotiating. It is not a prohibition on negotiation. It is very important because it is not the Government agency itself that is doing the negotiating. It is the private prescription drug plans that are doing the negotiation.

That may surprise some people who have heard about the so-called prohibition on negotiations. Of course, price negotiations occur on drugs provided to Medicare beneficiaries. Those negotiations occur between the prescription drug plans and the manufacturers. We have a precedent for this. The plans are run by organizations experienced in negotiation with drug manufacturers. They deliver prescription drug benefits to millions and millions of Americans--in other words, meaning millions and millions of Americans beyond senior citizens--and including this 50-year precedent of it being done for Federal employees through the Federal Employees Health Benefit Plans.

As I said yesterday, competition among the plans to get the best price is working. We have lower than expected bids and cost of premiums and lower than expected costs for the Government as a result. So not only is it saving the senior citizens money, as it has been saving Federal employees money for 50 years, but also lowering costs to the taxpayers because there is some subsidy for seniors in the Medicare prescription drug program.

Most importantly, we have lowered prices on drugs for beneficiaries. For the top 25 drugs used by seniors--so I am just taking the top 25 drugs used--the Medicare prescription drug plans have been able to negotiate prices that on average are 35 percent lower than the average cash price at retail pharmacies; 35 percent lower. The purpose of the prohibition on Government negotiation--in other words, getting back to what is referred to as the noninterference clause--is to keep the Government from undermining these negotiations that have been so successful and to keep the Government out of the medicine cabinet.

I have lost count of the number of times I have talked about this so- called prohibition that is not a prohibition on negotiations, because negotiations are going on every day. I am not easily discouraged and that is why I am here talking tonight on this subject. I prefer to debate more substantive issues, but unfortunately that is not the case. The debate that went on during the campaign, the debate that went on in some speeches on the floor in the last Congress, and the debate that will come here on the Senate floor in the next 3 weeks, is in fact a shell game. It is about distortion of the language of the law, it is about manipulation of beneficiaries and, in turn, the public, and it hinges on the convenient lapse in some people's memory about the history of this noninterference clause. What I want to do today is remind people about the history.

We are going to take a little trip down memory lane. For our first stop

on memory lane, let me take a second to read something to you. This is a quote from someone talking about their own Medicare drug benefit proposal.

Under this proposal, Medicare would not set prices for

drugs.

Let me start over again because that first sentence needs to be emphasized:

Under this proposal, Medicare would not set prices for

drugs. Prices would be determined through negotiations

between the private benefit administrators and drug

manufacturers. . . .

The person who said this clearly wanted private negotiations with drug companies for Medicare benefits. He was proposing, and I want to quote again from this person--and I am soon going to tell you who that is--

. . . negotiations between private benefit administrators

and drug manufacturers.

So I am taking that quote out of the previous quote for a way of emphasis.

Negotiations would go on between private benefit

administrators and drug manufacturers.

In other words, not involving the Government. So it could not be more clear what this person had in mind when he was proposing legislation a few years ago. You are going to be shocked to hear who said this. For those who thought President Bush said it, they are wrong. The quote is from none other than President Clinton. President Clinton made that comment as part of his June 1999 plan for strengthening and modernizing Medicare. President Clinton had in his idea, when we were going to strengthen and modernize Medicare with a prescription drug program, that we ought to have negotiations done by the private sector, not by the Government.

President Clinton went on to say that under his plan:

Prices would be determined through negotiations between the

private benefit administrators and drug manufacturers.

Quoting further:

The competitive bidding process would be used to yield the

best possible drug prices and coverage. . . .

And following the 50-year precedent I have been referring to, he went on to say:

. . . just as it is used by large private employers and the

Federal Employee Health Benefit Plans today.

That is the end of the quote from President Clinton.

President Clinton also described his plan as using private negotiators because:

These organizations have experience managing drug

utilization and have developed numerous tools for cost

containment and utilization management.

This is a President whom a lot of people would believe, because he comes from the Democratic Party, has great faith in big Government, that he would not be suggesting these things. But when you have a precedent of 50 years of it working for Federal employees, he believed it was good enough to use when you offer prescription drugs to the senior citizens of America.

Does this ring any bells? It should, because it is the same framework used in today's Medicare prescription drug benefit--and I had a hand, as a conferee, in writing that. Private negotiations with drug companies--and it is based on a nearly 50-year history of the Federal Employees Health Benefit Plan.

Here is another interesting spot on memory lane--if I could digress for a minute for the benefit of Members who keep ringing up about a doughnut hole--separate from the issue of pricing drugs and negotiating. I thought it would be good to remind people. The Clinton plan had a coverage gap as well. It had a doughnut hole, as we refer to it, like the bill eventually signed by President Bush in 2003. Like many others, the new Speaker of the House has questioned why one would pay premiums at a point in time when you are not receiving benefits. In other words, when you are in the doughnut hole. It happens in the private sector, in a lot of different insurances. That is how insurance works. Go look at any homeowner's policy and auto policy or even the Part B of Medicare. You pay premiums to have coverage, and that is also how President Clinton's plan would have worked if it had been passed in 1999 instead of 2003.

In Sunday's Washington Post, Speaker Pelosi was quoted on her thoughts about having a doughnut hole. She said:

How could that be a good idea unless you're writing a bill

for the HMOs and the pharmaceutical companies and not for

America's seniors?

Maybe she was referring to President Clinton's plan. As I said, President Clinton proposed this plan in June of 1999. On April 4, 2000, in a bill that is listed as S. 2342, the Medicare Modernization Act introduced here in the Senate, S. 2342 from that year, 2000, would have created a drug benefit administered through benefit managers. It even had the same title as the Medicare law that is now law. The Medicare Modernization Act is the title in 2000. It is the title of a bipartisan bill that is now law. So, here again, we have private negotiations with drug companies. It sounds familiar. It is like today's Medicare drug benefit.

Here is another important stop down our memory lane. This bill, which I referred to as S. 2342 previously, included the following language. ``Noninterference,'' nothing in this section or in this part shall be construed as authorizing the Secretary to:

require a particular formulary or to institute a price

structure for benefits; (2) interfere in any way with

negotiations . . . or (3) otherwise interfere with the

competitive nature of providing a prescription drug benefit

through private entities.

This is the first bill, the very first one where the noninterference clause appeared. You could say it is the second time it appeared because it appeared as a suggestion of President Clinton, but it was introduced the first time, and this was the language. But S. 2342 was not introduced by Republicans. It was introduced by my esteemed colleague and friend, the late Senator Moynihan. One month later there was S. 2541 introduced. I will read some language of that bill. Here I go to the first chart I have. I have four charts coming up.

(B) Noninterference . . . The Secretary may not--

(1) require a particular formulary, institute a price

structure for benefits;

(2) interfere in any way with negotiations between private

entities and drug manufacturers or wholesalers; or

(3) interfere with the competitive nature of providing a

prescription drug benefit through private entities.

That wasn't a Republican bill, either. It was introduced by Senator Daschle, who was joined by 33 other Democrats, including Senators Reid, Durbin, and Kennedy. For instance, 33 Senate Democrats cosponsored language for a bill that they now find not to their liking. I don't understand it. It turns out that the Democrats did not want Government interfering in the private sector negotiations, either. They recognized then that the private sector would do a better job. They recognized then what President Clinton recognized: something that had worked 50 years for Federal employees could be allied to senior citizens and Medicare as well and maybe do it better. And they didn't want the Government, some bureaucrat, messing it all up. At that time, they didn't want the Government in their medicine Cabinet, either.

In June 2000, two Democratic bills were introduced in the House of Representatives that also included the noninterference language. One was introduced by Dick Gephardt. That bill had more than 100 cosponsors, including then-Representative Pelosi, now Speaker of the House, but it also included Representatives Rangel, Dingell, and Stark. I want Members to know I worked very closely on some health issues with Dingell and Stark, and I worked very closely with Congressman Rangel on trade and tax issues.

That language included in H.R. 4770, introduced by Representative Gephardt and supported by more than 100 House Democrats, was almost identical to the language in Senator Daschle's bill. So we have 33 Senate Democrats, we have 100 House Democrats supporting the noninterference language.

Here is a chart with the text of the noninterference clause included in what is now Part D, the prescription drug part of Medicare, referring to it again under its official title, the Medicare Modernization Act.

It says:

(B) Noninterference--in order to promote competition under

this part and in carrying out this part, the Secretary--

(1) may not interfere with the negotiations between the

drug manufacturers and pharmacies and PDP sponsors; and

(2) may not require a particular formulary or institute a

price structure for the reimbursement of covered Part D

drugs.

It sounds exactly like what was introduced in the Democratic bill. If we compare this language to the Gephardt-Pelosi language, the Medicare Modernization Act provisions have 26 fewer words. Compare it to the Daschle-Kennedy noninterference clause--the Medicare Modernization Act has 10 fewer words. It sounds as if sponsors of those bills were pretty concerned about the potential of Government interference.

Last week, the senior Senator from Illinois described the Medicare law enacted in 2003 as being written by the pharmaceutical industry. But the noninterference clause first appeared in legislation introduced by Democrats who now oppose the same provision that is law.

Since the opponents of the Medicare drug benefit always say that the noninterference clause is proof that the drug industry wrote the law, my question is, If that is what you think, did the pharmaceutical industry also write the bills that you had put in over the previous years going back to the bills I have referred to that were introduced by Democrats? I bet you wonder just how many Democratic bills contain that now infamous ``noninterference clause''--the prohibition, in other words, on Government negotiating.

I have a timeline. As this chart shows, the prohibition on Government negotiation--the noninterference clause--has been in seven bills by Democrats between 1999 and 2003. That is in addition to the point I make clear of where the last Democratic President was on this subject: right where the law is today. Seven bills, including the bill introduced in the House on the same day as H.R. 1, which is now the law.

First it was in the Moynihan bill in 2000. There was a Daschle-Reid- Kennedy bill. That was followed in the House by a bill introduced by Representative Eshoo and then the Gephardt-Pelosi bill which has Representatives Rangel, Dingell, Stark, and our colleague who then was in the House, Senator Stabenow now, as a cosponsor. Representative Stark then had his own bill, and the senior Senator from Oregon introduced his bill in the Senate.

Finally, in the House, Representative Thomas introduced a bill. I know what the response will be. It will be that even though Democratic bills had nearly exactly the same noninterference language, practically word for word in seven bills over a long period of time, opponents now think that approach is no longer best for Medicare. It is sort of like we supported it before we opposed it.

Of course I yield for a question. We very seldom get a chance to debate. That is a welcome opportunity.

In the sense of what we can afford for veterans, we ought to think in terms of that we cannot afford enough for veterans who put their lives on the line.

When we have appropriated accounts, there are some limits, as opposed to an entitlement such as Medicare, but it is not as good as what seniors have under this because there are several therapies the Government will not pay for under the veterans program we pay for under Medicare. From that standpoint of the quality of the program, based upon the therapies that are available, it is not as good as what we have in Medicare.

The answer is yes. But you get back to the person who came to one of my town meetings and said: The doctor said I ought to have this prescription. Why won't the Veterans' Administration pay for it? I have to have this one, according to the Veterans' Administration, and there is some way it affects me that the other one wouldn't.

We have to take that into consideration as well. Yes, bulk discount gets drugs cheaper, but the Government is not going to pay for every drug. You are going to have the bureaucrat in the medicine cabinet of the veteran, and the bureaucrat is not today in the medicine cabinet of the senior citizen.

You also have to realize that, in addition to the VA having a limited formula, they also do not have the availability of the drug in the pharmacies the way we provide in this Medicare Program.

If you want to say for a period of a year or beyond a year, the answer is yes, but for 12 months, no. But also remember that every year the Secretary of Health and Human Services has to approve these plans, and there are certain basic needs they have to meet. One of those basic needs that is in the law that is not in the VA program is a requirement that every therapy be available.

That is true, but every therapy is available.

Mr. President, I say to the Senator, I want to comment on the first part of what he recently said; that is, that what you say is true in regard to plans changing what drugs can be offered. We require that every therapy be available, but you are right, not every drug is available. And you want what the VA has because it might be better.

Now, let me point out then why our program is better. In the VA, 30 percent of drugs are covered, 70 percent not covered. In our program, if a senior finds him or herself in a plan where at the end of the year it has changed, they have choices of several plans to go to. The VA does not have that choice. There is no place a veteran can go. There is no place my constituents could go when they came to me and said: Why don't you cover this drug? My doctor says I need it because of what it does to me that the other one won't--or just the opposite.

I have, too, so I agree with the Senator.

Well, can I ask a question without answering the Senator's question?

Because I was very joyful the Senator was coming out here. I saw him come out. I probably irritated him or something.

Here is what I was hoping we would be debating. Because the whole point of the last 2 days is: From President Clinton in June 1999, all the way through bills that the Senator's party introduced in 2003, we had the noninterference clause in it. I want you to know I felt very comfortable adopting a Democrat noninterference clause in my bill that is now law, and I was hoping the Senator was going to come out and give some justification why his party--mostly in his party; there were some on our side who would agree--why his party would change its mind after President Clinton thought that what we have been doing for 50 years was working so well in the Federal Employees Health Benefit Program that he wanted to do it. And he said you get lower drug prices by doing it that way.

Several bills--I think I said seven bills--introduced by Democrats had the same principle in it. And now you don't like it. I don't understand why. I was hoping that was why the Senator came out to debate.

If it is a good idea, I think the Senator from Illinois would do the consumers more good by offering a Government program to compete with Wal-Mart, maybe.

Mr. President, I think I have to give a bottom line and say it is working. Or if that is not good enough for you--after 2 years--that it is something that is working, it is something that is needed, it is something that Republicans got passed. And we did not get it passed without Democratic help, thank God--it was bipartisan-- otherwise we would not have gotten it done. But for 4 years we were waiting for something to happen on your side of the aisle. It did not happen.

So could I end by saying one thing? In case my word is not so good, I would quote from the LA Times. It is in response to what the Senator said about the VA program. And I do not have any problems with the VA program. But it says here:

VA officials can negotiate major price discounts because

they restrict the number of drugs on their coverage list. In

other words, the VA offers lower drug prices but fewer

choices.

Now, do we want to give the seniors of America fewer choices? I think you do. The route you are going, that is where you are going to end up.

So I cannot attribute this specifically to the Senator from Illinois, but the Senator is talking about choice now, and if there is anything people have choice on, it is all the plans that are available. But from your side of the aisle, starting in 2004, all I heard was there was too much choice, too much choice, too many plans.

So I do not know for sure if you and your party know where you are coming from, whether choice is OK, how much choice is OK. Maybe you are leading us down the line where we are going to end up, if you get too much Government interference, we will not have choice.

Mr. President, let me suggest to you that the committee that has jurisdiction over it, which I am no longer chairman of, has a tradition of trying to work through things. I want you to know I am committed to looking if there are better ways of doing it. But I think it is pretty difficult to argue with a program that has come in with senior citizens, by 80 percent in more than one poll, saying they are satisfied and, secondly, a program--what Government program have you ever seen come in without big cost overruns?

This one has come in now with the latest projection by CBO that it is going to cost $189 billion less than we anticipated it would cost. And we got lower Federal costs. We got lower premiums for the seniors. We got 35-percent lower drug prices for the 25 drugs most used by seniors. We got lower

State costs, because the States do not have to pick up the duel eligibles as they used to.

There is something good coming out of the discussion the Senator and I are having. If we would have had this discussion 3 years ago, you would have said what we were doing was going to bring holy hell and not do any good and it would never work. At least now there is some acceptance of the program. So maybe with a little bit more dialog we will come around to the point where you are saying: Maybe, Senator Grassley, you were right.

I noticed you have not said that so I can quote you again.

Remember, the bill you want to amend is a bipartisan bill. Remember that.

I thank you.

Mr. President, I want to finish my remarks. I am not sure finishing my remarks can be more valuable than what we just had here in this sort of discussion. But I think when the Senator came in, I was kind of needling the other party a little bit with a statement like all of this business of Democrats introducing this noninterference language, and my copying it, thinking that was the right thing to do, was the bipartisan thing to do, that now they are backing off of it, as you can see by the recent exchange I had with my friend from Illinois, that it is sort of for the Democrats like: We supported it before we opposed it.

But I want to recap. When Democrats controlled the Senate, their bills took the same approach and had basically the same noninterference language--the same prohibition on government negotiations. Looks like my colleagues across the aisle yielded--and perhaps against their own better policy judgment--to take the opportunity to make political hay by demagoguing what seems like a reasonable proposition. That proposition was that Government, with all those Medicare beneficiaries in the Medicare program, should negotiate lower prices for drugs. In reality, it is nothing but an appealing sound bite.

After the Medicare law was enacted, opponents distorted the meaning of the language and vowed to change it. They have now demagogued on this issue for 3 years. They had all that time to prepare their proposals. What has been introduced to date? The bill introduced in the House to address the so-called prohibition has been described as ``not as far-reaching as the new majority indicated before taking power.''

The Senate bill is a nonbinding sense of the Congress resolution as a placeholder with no details. I understand that some bills are introduced as markers pending further development. I have done that myself. But 3 years of talking about this issue, talking about what is wrong with the noninterference clause, and there still is no more substance behind the proposal than that?

One of the questions I should have asked the Senator from Illinois is, please describe to me how it is going to work if you take out the noninterference clause. I have never had anybody tell me that. Something like, let's do it a little bit like the VA, but the HHS is not the VA. So how is it going to be done? Somewhere along the line they are going to have to tell us.

In fact, the USA Today editorial page recognized the lack of substance when they wrote in November that House Democratic aides couldn't provide any details on their party's proposal. This is after 3 years of their finding fault with what is law.

It makes me wonder if people who led the charge against the so-called prohibition on Government negotiation truly ever did change their minds about this provision. There was actually a surprising level of agreement among Democrats and Republicans that the private sector would be able to do a better job of tough negotiation with drug companies than the Government could ever do. We had all seen the same history of the poor job Medicare does setting prices on almost anything, whether it is hospitals or whether it is wheelchairs. Everyone from President Clinton to Mr. Gephardt to Speaker Pelosi to the senior Senator from Oregon, recognized that at the time when they put their names on legislation.

The same USA Today editorial referred to opponents' plans to change the law as ``more of a campaign pander than a fully baked plan.'' Maybe the opponents finally realized that themselves.

I believe beneficiaries and the public deserve more than that. That is what the debate is going to be all about. But they are going to have to sell their point.

I yield the floor and suggest the absence of a quorum.

Mr. President, I have sought recognition to comment about the pending legislation on the Foreign Intelligence Surveillance Act and the so-called Leahy substitute. We are engaged here in the continuation of a historic debate. Confronted by terrorism on 9/11, the response has been made to legislate on the PATRIOT Act and the Protect America Act, in order to deal effectively with the terrorists. At the same time, there is great concern that there be an appropriate balance. While it is indisputable that our first duty is to protect America, it is also equally fundamental that the constitutional protections have to be kept in mind at all times, and it requires a balance.

The beauty of the Constitution is the doctrine of separation of powers, so that no one branch has too much. This has been a classic confrontation of the executive asserting its authority under article II, and disregarding statutes, such as the Foreign Intelligence Surveillance Act, disregarding the statutory requirement that the Members of the House and Senate Intelligence Committees be informed of activities like electronic surveillance, with the President asserting that authority under article II, saying that it supercedes a statute.

Congress has been ineffective on congressional oversight. The courts have filled the void, undertaking very significant action. A key part of what we are considering here today is whether there will be jurisdiction stricken on the pendency of many cases in the Federal courts challenging what the telephone companies have allegedly done or whether there will be continued access to the courts. It is my view, for reasons which I will amplify in the course of this floor statement, that there can be an accommodation to keep the courts open and to allow the electronic surveillance to continue. That can be accomplished by an amendment Senator Whitehouse and I intend to offer later today or perhaps tomorrow--at the first opportunity we have--where the litigation against the telephone companies would proceed, but the U.S. Government would be substituted as the party defendant.

There is no doubt that the telephone companies have been good citizens in whatever it is they have done. Yet there is nothing on the record as to what really happened. Whatever it is they have done, the indicators are that they have been good citizens, although, in the course of having the Federal Government substituted for the telephone companies, there will have to be evidence of compliance with the governmental request, a compliance in good faith.

The likelihood of verdicts being rendered, I think, in my legal judgment, is very remote. But that doesn't eliminate the requirement and the practice of keeping the courts open to make that determination.

The Specter-Whitehouse substitution amendment will place the Government in the shoes of the telephone companies to have the same defenses--no more and no less. For example, the doctrine of governmental immunity would not be available to the Government. There have been those who have criticized the Specter-Whitehouse amendment, who have ignored the very basic proposition that the suits cannot be dismissed because of governmental immunity.

On the other hand, by the same token, the state secrets defense will be available. In the lawsuits that are being prosecuted now against the telephone companies, the government has intervened to assert the state secrets doctrine. In fact, the Government has precluded the telephone companies from saying very much under that doctrine. When the Government is substituted for the telephone companies, the Government will retain the defense of the state secrets doctrine.

Before going into the body of the argument in support of the Specter- Whitehouse substitute approach, I wish to comment briefly on the substitute offered by the Judiciary Committee and by our distinguished chairman, Senator Leahy, as the pending business.

I begin by commending Senator Leahy for his work on the committee. For many years, we have worked together. His work as chairman has been exemplary, and there have been improvements that have been made by the modified Leahy substitute. Improvements have been made in that it clarifies that when surveillance occurs overseas, the FISA Court's role is limited to assessing probable cause and not the means of collection. It has further been improved by extending the length of emergency surveillance to conform to the Intelligence Committee bill's 7 days instead of 3 days. It has been improved by eliminating certain language criticized by the administration--and I think justifiably--as being overly broad. But it does retain the basic concept that the Foreign Intelligence Surveillance Act is the exclusive statutory procedure. So you preempt the Government argument that the Authorization for the Use of Military Force preempts and supersedes FISA. That argument has been made by the administration. I think it is a vacuous argument. In any event, this legislation would restate the proposition that the AUMF, or legislation like that, would not supersede FISA.

The substitute offered by the distinguished chairman also has a change which allows the continuation of surveillance pending en banc review by the Foreign Intelligence Surveillance Court. It also improves a provision calling for an inspector general review of the terrorist surveillance program.

I think, in essence, the substitute provision Senator Leahy has offered is an improvement over the prior bill. I regret that I cannot support it because it leaves out the provision with respect to immunity. While I do not like the provision with respect to immunity and think we can improve upon it, as I have said, by the approach of substituting the Federal Government for the telephone companies, I believe it is important to keep protecting the telephone companies in the picture and to benefit from the activities which they are undertaking. Therefore, I will not be able to support the substitute offered by Senator Leahy.

It is my hope that the Specter-Whitehouse amendment will be adopted, substituting the Government. If that fails, then with reluctance I will support retroactive immunity. To repeat, I think that is not the preferable course.

In dealing with the fundamental proposition of keeping the courts open, we have had an extended history in the past 2 or 3 years of the ineffectiveness of dealing with the expanded executive authority with congressional oversight. The PATRIOT Act reauthorization came out of the Judiciary Committee in 2005. I chaired it and was managing the bill on the floor of the Senate back in mid-December of 2005. I was very surprised that morning to read in the New York Times that the Federal Government had been undertaking the terrorist surveillance program without notifying the Intelligence Committees, as required by the National Security Act of 1947, and without notifying the chairman or ranking member of the Judiciary Committee. That was more than a surprise; it was a shock.

We were nearing the end of the consideration of the PATRIOT Act reauthorization, and all of the indicators were that we would get it passed. Some appeared on the floor of the Senate that day to say that they had intended to support the PATRIOT Act reauthorization, but no longer, in light of the fact that there had been the terrorist surveillance program, unknown to Congress, in violation of the Foreign Intelligence Surveillance Act and in violation of the National Security Act of 1947.

Now, it may be that the President was correct in asserting that he had article II power under the Constitution. If the President did have power under article II as Commander in Chief, then such power could not be reduced by legislation. That is a basic constitutional principle. But the determination of that really doesn't reside with the President alone.

I then introduced legislation to bring the terrorist surveillance program under the Foreign Intelligence Surveillance Court. I will not take the time

now to go through the lengthy efforts made in that regard. Suffice it to say that congressional oversight was not satisfactory. Where there has been a conflict between the Congress and the White House, the tools available to the White House have rendered the congressional oversight ineffective. When the Judiciary Committee has issued subpoenas, the subpoenas have been ignored by the White House, and the enforcement procedures are insufficient, really nugatory.

In the first place, if litigated, they take at least 2 years to have a judicial decision. The law requires the U.S. attorney for the District of Columbia to bring the action. The U.S. attorney for the District of Columbia is part of the executive branch, and some in the Department of Justice have said forget about having the action brought. It is theoretically possible to have a contempt citation on the floor of the Senate, but it is a practical impossibility. So the efforts at enforcement of congressional oversight through the subpoena process has been to no avail.

On the other hand, the courts have been effective. When the issue has arisen as to the detention at Guantanamo, the Supreme Court of the United States said in Hamdan that the Geneva Conventions applied, and in Rasul that habeas corpus was in effect, notwithstanding the fact Guantanamo was outside the territorial limit of the United States because the U.S. Government controlled Guantanamo.

Where the Congress has responded with legislation, the issue is now before the Supreme Court of the United States again in the Boumediene case. The courts have been effective in asserting a balance, in asserting constitutional governance. A whole series of court cases have shown the effectiveness of the courts. For instance, in the Hepting case that is pending on the terrorist surveillance program, the district court rejected a blanket application of the state secrets doctrine. In the Padilla case, the Supreme Court's decision to take up the case led the government to file criminal charges. A New York case involving the national security letters, Doe v. Gonzalez, found that certain NSL gag orders were unconstitutional in light of the First Amendment.

The Hamdan case involved a detainee by the U.S. Government. There the Supreme Court held that the President does not have a blank check to deal with detainees and that Congress had a role to play.

In the Al-Haramain case, the Terrorist Surveillance Program was litigated by an Islamic charity that allegedly had a TSP derived transcript. The case Ninth Circuit decision upheld the government's assertion of the state secrets doctrine in that case.

I do not go into great length on these judicial decisions but to note that when the court issues a order and insists on witnesses being presented on pain of having the case dismissed or on pain of having adverse action taken against the party who doesn't follow the court order, the courts have been effective. That is why, on a constitutional balance, I think it is very important not to foreclose action by the courts, not to, in effect, strip the Federal courts of jurisdiction of the many pending cases which have been brought against the telephone companies, and it can be done in a practical way, preserving the importance of law enforcement activities for whatever it is the telephone companies are doing by substituting the Federal Government as the party defendant.

I am especially concerned about this issue in the context of what occurred back in June of 2006, when the Judiciary Committee, while I was chairing it, was trying to exercise congressional oversight, assert a constitutional balance with the executive branch, and we were unsuccessful for a variety of reasons. Where the Federal Government had the defense of executive privilege, it was impossible to move effectively on congressional oversight. But when it became known about the alleged activities of the telephone companies, I sought, as chairman, to have subpoenas issued. The Vice President then contacted Republican members of the Judiciary Committee, in effect, behind my back--the protocol is to call the chairman first; if not to call the chairman first, to call the chairman sometime--leading me to write a letter, dated June 7, 2006.

I ask unanimous consent to have printed in the Record at the conclusion of my remarks this letter, dated June 7, 2006.

Mr. President, I did not like sending the Vice President a lawyer's letter, three pages, single spaced. It starts off--and I will read a short paragraph:

Dear Mr. Vice President, I am taking this unusual step in

writing to you to establish a public record. It is neither

pleasant nor easy to raise these issues with the

administration of my own party, but I do so because of their

importance.

And then I go into the issues of the expansion of executive authority in many directions, the refusal of the executive branch to accommodate legitimate congressional oversight, and complain about the Vice President's activities in contacting Republican members of the Judiciary Committee.

To have the record complete, Mr. President, I ask unanimous consent to have printed in the Record at the conclusion of my remarks the Vice President's response to me, dated June 8, 2006.

Mr. President, with that background, there is a particular sensitivity on my part to having retroactive immunity which I think would be an open invitation in the future for the executive branch to continue to ignore the statutes as the executive branch apparently ignored the Foreign Intelligence Surveillance Act that sets the exclusive way of getting wiretapping, a statement of probable cause to a judge, to ignore the National Security Act of 1947 in failing to notify the Intelligence Committees of the House and Senate as mandated, positively required, under that statute, to ignore that under the assertion of article II power. But the judicial branch of Government is the ultimate arbiter. To move to close the courts is a very serious and unwise step, especially when the objective can be retained of the law enforcement tools and having the litigation continue, of having the U.S. Government as the party defendant. I don't believe there will be verdicts against the Government, but if there are, it is part of the cost of doing business, part of the cost of fighting terrorism, and it ought to be borne by the U.S. Government, as opposed to being borne by the telephone companies which presumably have been good citizens, something they have to establish under the Specter-Whitehouse amendment to have the Government step in as a substitute.

Where we stand at the present time is on the substitute offered by the distinguished chairman. Again, I compliment him for the work he is doing generally and specifically about our Judiciary Committee activities on the Foreign Intelligence Surveillance Act. I have noted a number of particulars where I think Senator Leahy's revised substitute has made improvements. To repeat, I regret I cannot support it because it leaves out the immunity provision. Again, I do not like the immunity provision and think we can improve it with the Specter-Whitehouse amendment. But if I am unsuccessful on that, then I will have to, at least speaking for myself, swallow the retroactive immunity provision on a balance of my own judgment as to the importance of having that kind of electronic surveillance, whatever it is, go forward, even with the retroactive immunity.

It is my hope, when we consider the ramifications, that we can command the majority in this body, work through the legislation with the House of Representatives, and find a way to allow the Government to have the advantages of the electronic surveillance but not foreclose the courts by the remedy of having the Government substituted as the party defendant.

I yield the floor.

Exhibit 1

U.S. Senate,

Committee on the Judiciary,

Washington, DC, June 7, 2006.

Hon. Richard B. Cheney,

The Vice President,

Washington, DC.

Dear Mr. Vice President: I am taking this unusual step in

writing to you to establish a public record. It is neither

pleasant

nor easy to raise these issues with the Administration of my

own party, but I do so because of their importance.

No one has been more supportive of a strong national

defense and tough action against terrorism than I. However,

the Administration's continuing position on the NSA

electronic surveillance program rejects the historical

constitutional practice of judicial approval of warrants

before wiretapping and denigrates the constitutional

authority and responsibility of the Congress and specifically

the Judiciary Committee to conduct oversight on

constitutional issues.

On March 16, 2006, I introduced legislation to authorize

the Foreign Intelligence Surveillance Court to rule on the

constitutionality of the Administration's electronic

surveillance program. Expert witnesses, including four former

judges of the FISA Court, supported the legislation as an

effective way to preserve the secrecy of the program and

protect civil rights. The FISA Court has an unblemished

record for keeping secrets and it has the obvious expertise

to rule on the issue. The FISA Court judges and other experts

concluded that the legislation satisfied the case-in-

controversy requirement and was not a prohibited advisory

opinion. Notwithstanding my repeated efforts to get the

Administration's position on this legislation, I have been

unable to get any response, including a ``no''.

The Administration's obligation to provide sufficient

information to the Judiciary Committee to allow the Committee

to perform its constitutional oversight is not satisfied by

the briefings to the Congressional Intelligence Committees.

On that subject, it should be noted that this Administration,

as well as previous Administrations, has failed to comply

with the requirements of the National Security Act of 1947 to

keep the House and Senate Intelligence Committees fully

informed. That statute has been ignored for decades when

Presidents have only informed the so-called ``Gang of

Eight,'' the Leaders of both Houses and the Chairmen and

Ranking Members on the Intelligence Committees. From my

experience as a member of the ``Gang of Eight'' when I

chaired the Intelligence Committee of the 104th Congress,

even that group gets very little information. It was only in

the face of pressure from the Senate Judiciary Committee that

the Administration reluctantly informed subcommittees of the

House and Senate Intelligence Committees and then agreed to

inform the full Intelligence Committee members in order to

get General Hayden confirmed.

When there were public disclosures about the telephone

companies turning over millions of customer records involving

allegedly billions of telephone calls, the Judiciary

Committee scheduled a hearing of the chief executive officers

of the four telephone companies involved. When some of the

companies requested subpoenas so they would not be

volunteers, we responded that we would honor that request.

Later, the companies indicated that if the hearing were

closed to the public, they would not need subpoenas.

I then sought Committee approval, which is necessary under

our rules, to have a closed session to protect the

confidentiality of any classified information and scheduled a

Judiciary Committee Executive Session for 2:30 P.M. yesterday

to get that approval.

I was advised yesterday that you had called Republican

members of the Judiciary Committee lobbying them to oppose

any Judiciary Committee hearing, even a closed one, with the

telephone companies. I was further advised that you told

those Republican members that the telephone companies had

been instructed not to provide any information to the

Committee as they were prohibited from disclosing classified

information.

I was surprised, to say the least, that you sought to

influence, really determine, the action of the Committee

without calling me first, or at least calling me at some

point. This was especially perplexing since we both attended

the Republican Senators caucus lunch yesterday and I walked

directly in front of you on at least two occasions enroute

from the buffet to my table.

At the request of Republican Committee members, I scheduled

a Republican members meeting at 2:00 P.M. yesterday in

advance of the 2:30 P.M. full Committee meeting. At that

time, I announced my plan to proceed with the hearing and to

invite the chief executive officers of the telephone

companies who would not be subject to the embarrassment of

being subpoenaed because that was no longer needed. I

emphasized my preference to have a closed hearing providing a

majority of the Committee agreed.

Senator Hatch then urged me to defer action on the

telephone companies hearing, saying that he would get

Administration support for my bill which he had long

supported. In the context of the doubt as to whether there

were the votes necessary for a closed hearing or to proceed

in any manner as to the telephone companies, I agreed to

Senator Hatch's proposal for a brief delay on the telephone

companies hearing to give him an opportunity to secure the

Administration's approval of the bill which he thought could

be done. When I announced this course of action at the full

Committee Executive Session, there was a very contentious

discussion which is available on the public record.

It has been my hope that there could be an accommodation

between Congress's Article I authority on oversight and the

President's constitutional authority under Article II. There

is no doubt that the NSA program violates the Foreign

Intelligence Surveillance Act which sets forth the exclusive

procedure for domestic wiretaps which requires the approval

of the FISA Court. It may be that the President has inherent

authority under Article II to trump that statute but the

President does not have a blank check and the determination

on whether the President has such Article II power calls for

a balancing test which requires knowing what the surveillance

program constitutes.

If an accommodation cannot be reached with the

Administration, the Judiciary Committee will consider

confronting the issue with subpoenas and enforcement of that

compulsory process if it appears that a majority vote will be

forthcoming. The Committee would obviously have a much easier

time making our case for enforcement of subpoenas against the

telephone companies which do not have the plea of executive

privilege. That may ultimately be the course of least

resistance.

We press this issue in the context of repeated stances by

the Administration on expansion of Article II power,

frequently at the expense of Congress's Article I authority.

There are the Presidential signing statements where the

President seeks to cherry-pick which parts of the statute he

will follow. There has been the refusal of the Department of

Justice to provide the necessary clearances to permit its

Office of Professional Responsibility to determine the

propriety of the legal advice given by the Department of

Justice on the electronic surveillance program. There is the

recent Executive Branch search and seizure of Congressman

Jefferson's office. There are recent and repeated assertions

by the Department of Justice that it has the authority to

criminally prosecute newspapers and reporters under highly

questionable criminal statutes.

All of this is occurring in the context where the

Administration is continuing warrantless wiretaps in

violation of the Foreign Intelligence Surveillance Act and is

preventing the Senate Judiciary Committee from carrying out

its constitutional responsibility for Congressional oversight

on constitutional issues. I am available to try to work this

out with the Administration without the necessity of a

constitutional confrontation between Congress and the

President.

Sincerely,

Arlen Specter.

Younger prosecutors.

Mr. President, I ask unanimous consent that following my remarks, the Senator from Florida, Mr. Nelson, be recognized for his remarks.

Mr. President, I strongly support Senator Leahy in his effort to replace the Senate Intelligence Committee bill with the version passed by the Judiciary Committee. I am a member of both of these

committees. As a member of both committees, I have been deeply involved in the process of having looked at those two products.

Having been involved in helping shape them, I urge my colleagues to support the Judiciary Committee version of this legislation. Indeed, I had hoped very much that the Senate would take up that bill to begin with rather than the flawed Intelligence Committee bill.

In December, I along with 13 other Senators, urged the majority leader to make the Judiciary Committee bill the base bill on the Senate floor. Unfortunately, our request was denied. So it is very disappointing that we are now forced to fight an uphill battle of offering the Judiciary bill as an amendment.

I would like to lay out the reasons the Senate should support the Judiciary Committee bill rather than the Intelligence Committee bill. One obvious reason is the Judiciary Committee bill, unlike the Intelligence Committee bill, does not contain unjustified retroactive immunity for companies alleged to have participated in an illegal wiretapping program.

I do not want to spend a lot of time on this today because there will be an opportunity to debate this issue as the Senate's consideration of this legislation moves forward. But I will say that having spent the last year and a half studying what happened at the NSA from 2001 to 2006, I strongly oppose immunity.

Under current law, telecom companies already get immunity as long as they follow certain requirements that are clearly spelled out in the law. I see no reason for Congress to change the rules this late in the game.

Today, I would like to focus on the other significant parts of these bills, the part contained in title I of each bill that contains sweeping new changes to the FISA law for years to come. Let me start off by pointing out that there are a number of similarities between title I of the Intelligence Committee bill and title I of the Judiciary Committee bill. Their basic structure is the same.

Title I of both bills authorize the Government to conduct surveillance of individuals reasonably believed to be overseas without court approval for individualized warrants. Both bills authorize the Government to develop and implement procedures to govern that type of surveillance and provide the procedures to the FISA Court for review after they have gone into effect.

Now, let's be clear. These are extraordinary powers that both bills give to the executive branch. And there is no difference between these two bills in terms of the intelligence they permit the Government to acquire. No difference between the bills as regards to the effort to go after those who may be trying to do us harm in this respect. Rather, the differences between these two bills comes in the form of critically important checks and balances on those powers.

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--the privacy of law- abiding Americans. The Intelligence Committee bill, on the other hand, leaves it up to the executive branch to police itself, an approach that has all too often proven to be a bad idea throughout American history. I would say particularly under this administration.

Let me state as clearly as I can the differences between these two bills have nothing--nothing--to do with our ability to combat terrorism. They have everything to do with ensuring that the executive branch follows the rule of law and does not unnecessarily listen in on the private communications of Americans who are doing absolutely nothing wrong.

This debate is about whether the court should have an independent oversight role and what protections should apply to the communications of Americans that somehow get swept up in these broad new surveillance powers. If you believe the courts should have a meaningful oversight role with regard to Government surveillance, then you should support the Judiciary bill.

If you believe that Congress should safeguard the communications of Americans at home that could 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. It is as simple as that.

That said, the Judiciary Committee bill is not perfect. More still needs to be done to protect the privacy of Americans. That is why it should be an easy decision to support the Judiciary Committee bill as our starting point on the floor of the Senate as we work on this legislation.

Let me also remind my colleagues that the process by which the Judiciary Committee considered, drafted, and 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 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.

I also point out that several of the administration's criticisms of the Judiciary Committee bill have been based on technical drafting concerns. But in the version that Chairman Leahy has brought to the Senate floor, he has made the changes necessary to address those technical concerns. So I hope we do not hear any arguments in this floor debate about these issues that have already been addressed.

Exactly what are the differences between these two bills? First, the Judiciary bill gives the secret FISA Court more authority to operate as an independent check to the executive branch. For example, one provision in the Judiciary bill fixes an enormous problem with the Intelligence Committee bill; that is, the complete lack of incentives for the Government to target people overseas rather than to target people in the United States.

The Judiciary bill solves this problem by giving the FISA Court the discretion to limit the use of information concerning Americans when that information is obtained through procedures that the FISA Court ultimately finds are not--are not--reasonably designed to target persons overseas.

Another provision of the Judiciary bill ensures that the FISA Court has the authority to oversee compliance with what are called minimization procedures. Minimization procedures have been held up as the primary protection in the Intelligence Committee bill for the privacy of Americans whose communications get swept up in this new surveillance authority.

Now, I do not think current minimization procedures are strong enough to do the job. But to the extent that minimization can help protect Americans' privacy, its implementation surely needs to be overseen by the court. So that means giving the court the authority to review whether the Government is complying with the minimization rules and to ask for the information it needs to make that assessment.

Now, 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, no checks and balances at all.

Once again, ``trust us'' will have to do. Now, I believe in this case, as in so many others, ``trust us'' is not enough. The Judiciary bill offers other types of oversight, as well. For one thing, it requires relevant inspectors general to conduct a complete review of the President's illegal wiretapping program, which, frankly, is long overdue.

It improves congressional access to FISA Court orders. The Intelligence Committee bill required the Congress to be provided with orders, decisions, and opinions of the FISA Court--that includes significant interpretations of the law--within 45 days after they are issued.

Now, that is good as far as it goes. But the Judiciary Committee bill adds that Congress should be provided with the pleadings, the pleadings filed with the court associated with the opinions that contain significant interpretations of law.

At times, the court's opinions merely reference and approve arguments made in the Government's pleadings. In that case, the pleadings may be critical to understanding the reasoning behind any particular decision. It is not enough just to have the cursory court opinion.

It also requires that significant interpretations of law not previously provided to Congress over the past 5 years

be provided. Congress needs to have the full story of how the law has been interpreted in the past in order to make the right decisions on what changes in the law should be made in the future.

The Judiciary bill also does a better job of protecting Americans from widespread warrantless wiretapping. First, it provides real protection against what is called 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 gets a court order on the American. Specifically, the Judiciary Committee bill says the Government needs an individualized court order when a significant purpose of its surveillance is, in fact, listening to an American at home.

The Director of National Intelligence himself said reverse targeting violates the fourth amendment. All this provision that I am raising does is simply codify that principle. The administration continues to oppose this provision.

I have a simple question: Why? Why is it opposed to a provision that prohibits a practice that its own Director of National Intelligence says is unconstitutional?

The Judiciary Committee bill also prohibits something called bulk collection. Now, that is this 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--would be--permitted by the Protect America Act that is currently in effect. But he has also said that what the Government is seeking to do with these authorities is something very different.

It is, he said:

Surgical. A telephone number is surgical. So, if you know

that number, you can select it out.

So if the DNI has said he does not need broader authorities, there should be no objection to this modest provision which, again, simply holds the DNI to his word.

The prohibition against bulk collection ensures that the Government has some--some--foreign intelligence interest in the communications that it is collecting and 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 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.

As was already alluded to on the Senate floor, the Judiciary Committee bill also has a sunset of 4 years rather than 6 years, ensuring that Congress will reevaluate this law at least once before the end of the next Presidential term. 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 also closes purported statutory loopholes that the Justice Department relied on to make its torture arguments that the congressional authorization for the use of force in Afghanistan authorized the President's illegal wiretapping program. The Judiciary bill makes clear, once and for all, that the President must follow the law.

For all of these reasons, the Senate should support the Judiciary Committee's product. Let me repeat what I said at the outset. The differences between these two bills have nothing to do with our ability to combat terrorism. Nothing. They have everything to do with ensuring that the executive branch adheres to the rule of law and does not necessarily listen in on the private communications of Americans. The fact that the administration is so strongly resisting these commonsense protections really says a lot. It ought to give pause to those who are considering opposing it.

It is time for Congress to stop being an enabler when it comes to this administration's indifference to the rule of law and, instead, start being a protector of the rights and freedoms of our citizens.

I urge my colleagues to support the Judiciary Committee bill.

I yield the floor.

Mr. President, I ask unanimous consent that the pending amendment be set aside and I call up amendment----

Mr. President, I call up amendment No. 3909.

Mr. President, I ask unanimous consent that Senator Dodd be added as a cosponsor.

Mr. President, this amendment is a straightforward reporting requirement that is critical if Congress is to understand how the foreign intelligence surveillance laws it passes, including this one, are being interpreted and applied. The issue is very simple. If the FISA Court makes a significant interpretation of the law, I think Congress should know about it. Congress can't conduct oversight of intelligence unless it knows what the court is and is not permitting the administration to do. Congress can't pass new legislation without knowing how the court has interpreted current law.

This issue is absolutely fundamental to our constitutional system. Congress has a responsibility to understand the impact of the laws it is passing. The courts should have the assurance that when they interpret the law, those interpretations will be communicated to the legislature. This isn't some unusual idea; this is how our system of

government has operated from its inception.

Specifically, this amendment does two things. First, it requires that when the court issues an opinion that includes a significant legal interpretation, the Government must provide the Government's pleadings associated with that decision to Congress. Now, these pleadings are often critical to understanding the legal interpretations of the court. This is in part because at times the court's opinions merely reference and approve the Government's arguments made in those pleadings. So it is really necessary to be able to review the pleadings themselves if you are going to understand the court's decision. They are also necessary to understand how the Government interprets and seeks to implement the law.

Neither Congress's oversight of the intelligence community nor any responsible legislating in the area of foreign intelligence surveillance can be effective without these documents. Yet, even today, as Congress considers this FISA legislation, the administration continues to refuse to provide Congress with important FISA Court pleadings.

The other reason is this: The amendment requires that the Government provide Congress with FISA Court orders that include significant interpretations of law over the last 5 years. Now, this is necessary because there was an enormous loophole in previous statutory reporting requirements that would be closed for the first time by this Intelligence Committee bill.

The Government didn't previously have to provide Congress with significant interpretations of law if they were included in court orders rather than court decisions or opinions. But we know from the administration's public announcement in January about the President's wiretapping program that such legal interpretations are, in fact, found in orders. For Congress to have any sense of how the court has interpreted the FISA statute, therefore, it is critical to understand recent jurisprudence. Congress needs to have access to FISA Court orders not just going forward but for the past 5 years as well.

This is not theoretical. The administration has refused to provide to Congress orders containing significant interpretations of law, and that is just what we know of. Without this amendment, we might never know what other important legal interpretations are out there.

To be clear, I first offered an amendment to require that FISA Court orders and other documents be provided to Congress through the intelligence authorization bill. It was approved on a bipartisan basis. It was later removed from the authorization bill, and only a watered- down version was included in the Intelligence Committee FISA bill. What my amendment today does is merely put the language back that has already been given the support of a bipartisan majority of the Intelligence Committee.

The most appropriate arrangement for Congress to obtain information related to the FISA Court would be for the court to provide it directly, without the involvement of the executive branch. So granting the executive branch any role in an exchange between the two other branches of Government, which is what my amendment actually allows, is, in fact, already a compromise.

But this amendment is a direct response to the administration's assertion that it can withhold FISA Court opinions and documents that include significant interpretations of law from Congress--not letting us read these things. Imagine if the administration tried to keep Supreme Court decisions from Congress. Even worse, imagine if the administration tried to keep from Congress a decision like Hamdan v. Rumsfeld, which rejected the administration's military commissions, just as Congress was considering the Military Commissions Act. Congress wouldn't stand for it. Yet that is exactly what is happening in the world of intelligence.

There are really no serious, substantive reasons to oppose this amendment. Orders and pleadings will be provided to the Intelligence Committee in a classified and, if necessary, redacted manner, just as FISA Court decisions are now. This is the furthest thing from an onerous reporting requirement. If there are FISA Court orders that include significant interpretations of law, Government lawyers certainly know what they are and where to find them.

It is sometimes said that intelligence in technical terms ``belongs'' to the executive branch. I disagree. But in any case, such an argument simply doesn't apply here. This amendment relates to the documents of an article III court. Just last month, that court confirmed in a rare public opinion that it has ``inherent power'' over its own records--in other words, they do not belong to the executive branch.

Finally, let me stress the scope of the information Congress needs before it can conduct effective oversight and legislative responsibility.

While the public is understandably focused on the FISA Court's involvement with regard to the President's warrantless wiretapping program, the FISA Court is actually responsible for interpreting all of the FISA statutes. Now, that includes the electronic surveillance issues we are considering here today but also physical searches of Americans' homes and the collection of sensitive business records, including library and medical records. Just as Congress should know how the Protect America Act and this FISA bill will be interpreted, it should have similar information with regard to the FISA provisions related to the PATRIOT Act and any other legislation that governs surveillance and affects the rights of Americans.

This simple reporting requirement is critical to congressional oversight, and I urge my colleagues to support it.

Not only is it assumed, but I just stated specifically on the floor a few minutes ago that it would exist.

Correct.

Mr. President, I rise to oppose the second-degree amendment. This is a classic example of people hiding behind a tragedy in this country to make arguments that have no merit. This argument, that the provision of pleadings, legal arguments by the Government, will somehow compromise sources and methods and bring down the intelligence system, has no merit.

When the Senator from Arizona asked me specifically whether my amendment allows for certain sensitive information to be redacted, my answer was yes, and he didn't respond. In fact, I had already stated that in my opening statement. Everything the Senator from Missouri referred to--confidential information, sensitive information about individuals we are going after, critical intelligence--all of that can be redacted. What the Senator wants to help the administration do is prevent Members of Congress--and by the way, these are kept classified; it is only people who have certain clearances who can see them--from seeing the pleadings provided to an article III court. That is the basis for their arguments.

As I pointed out in my statement, a lot of times the court just refers to the pleadings in its orders. So if we don't have the pleadings, we have no idea what the order is about.

Listen very carefully because this kind of argument is going to be used with regard to every aspect of this bill.

Everything is a red line. I want to tell you something, Mr. President, it is not a red line for the duly elected representatives of the people of this country in a classified setting to be able to review documents from a court proceeding. That is a ridiculous notion and disrespectful to the United States Congress that has an oversight role.

I was involved in the debate, as the Senator from Missouri knows, in the Intelligence Committee. We won fair and square on this vote by a majority bipartisan vote when it was first offered to the Intelligence Authorization bill. Because of various issues and pressures relating to other matters, we later had to compromise, and ultimately they said, why don't you do it on the FISA bill, which is exactly what I am doing. But the idea that somehow this endangers America to allow certain Members of Congress and a few staff members who have been cleared to look at the pleadings of the Government in a court proceeding takes this way too far.

There are no substantive arguments against doing this, and I urge Senators to reject the second-degree amendment and adopt the underlying amendment.