A resolution to express the sense of the Senate regarding the use of gasoline and other fuels by Federal departments and agencies.

Thank you, Mr. President. I appreciate the recognition.

To begin, to clarify for the floor and our colleagues the arrangement the chairman and I have on this bill, I ask unanimous consent that Senator Rockefeller manage the time in opposition to the Specter amendment and that I manage the time in opposition to the Dodd and Bingaman amendments.

Mr. President, as I mentioned earlier today, the Senate is poised to wrap up consideration of the Foreign Intelligence Surveillance Amendments Act of 2008 in the form of H.R. 6304. Now, most of my colleagues know this legislation has had a way of hanging around for quite awhile, being caught up in the congressional process. Many, including myself, believe we should have passed it well before now, but it appears that we are on about the

5 yard line and ready to move it across into the end zone. As one who believes this badly needed update to FISA will enhance our Nation's security and advance and protect America's civil liberties and privacy rights, I certainly hope a strong majority of the Senate will pass this legislation unamended tomorrow.

Some of my colleagues have been intent on using Senate procedures to slow this legislation to a snail's pace. They have succeeded in doing so, first by choosing to ignore the Director of National Intelligence-- and I will call him the DNI from now on--the DNI's pleas for modernization of the Foreign Intelligence Surveillance Act, or FISA, as we will call it, in April 2007, for over 3 months, until August of 2007, and back in December of 2007 when a Democratic Member filibustered us past the end of the year and into the recess, into 2008. It came to the floor in February when it took us several weeks to work out a way to move forward; then, once again, over the past few weeks, with another Democratic Member filibuster of sorts that pushed us past last week's recess. Up until now, we have been delayed, but one thing is sure in the Senate. Just as they say in military and basic training: No matter what you do, you can't stop the clock. Now that some of my colleagues are out of time in delaying any further, the Senate will move ahead this week, despite all of these delays.

I am very proud of the comprehensive compromise legislation before us today which passed out of the House with a strong bipartisan vote of 293 to 129. That was almost 3 weeks ago. As with the Senate's original FISA bill that passed several months ago, the compromise that is before us required a little give from all sides but, in essence, what we have before us today is basically the Senate bill all over again. Everyone who studied the language recognizes that. I have here a detailed legislative history that I will ask unanimous consent to be printed in the Record that explains the provisions of the bill. Chairman Rockefeller submitted his own legislative history before the recess, and while we largely agree on the description of the legislation, we do have a few key differences. So as Vice Chairman of the Intelligence Committee, I believe it is important to make my views and those of several other Senators a part of the legislative history of this bill by including it in the Record. I therefore ask unanimous consent to have this legislative description printed in the Record as part of my remarks.

Mr. President, before the recess I mentioned how the press picked up on the similarities between this bill and the Senate bill and how they kept asking me to help find out the big changes in the bill that no one could find. Well, they stopped asking me that question because they realized there is not much that is significantly different, save some cosmetic fixes that satisfied the House Democratic leadership. Since we started with a bipartisan product here in the Senate, that means we still have a very strong bipartisan bill before us.

I am very pleased that the strong liability protections the Senate bill offered are still in place and our vital intelligence sources and intelligence methods will be safeguarded. I am pleased this compromise preserves the ability of the intelligence community to collect foreign intelligence quickly and in exigent circumstances without any prior court review. I am also pleased that the 2012 sunset--3 years longer than any sunset previously offered in any House bill--will give our intelligence collectors the certainty they need and the tools they use to keep us safe. I am confident that the few changes we made to the Senate bill in H.R. 6304 will not diminish the intelligence community's ability to target terrorists overseas, and the Director of National Intelligence--the DNI--and the Attorney General agree.

I will highlight for my colleagues five of the six main tweaks to the Senate bill that we find in the bill before us, as nuanced as they may be. I say ``five'' because one of these tweaks I explained in detail before the recess. I trust all of my colleagues remember that discussion very clearly. It was that the civil liability protection provision was slightly modified but still ensures that the companies who may, in good faith, have assisted the Government in the terrorist surveillance program, or TSP, will receive relief. Another way to describe it is that we have essentially provided the district court with an appellate standard review just as we did in the Senate bill. Congress affirms in this legislation that the lawsuits will be dismissed unless the district court judge determines that the Attorney General's certification was not supported by substantial evidence based on the information the Attorney General provides to the court. The intent of Congress is clear. The Intelligence Committee found that the companies deserve liability protection. They were asked by legitimate Government authorities to assist them in a program to keep our country safe. They did it, and now they are being thanked by lawsuits designed not only to destroy their reputation but to destroy the program.

There are several misconceptions that were brought up in the discussions today. Several have said that we don't know what we are granting immunity for; we shouldn't grant it without reviewing the litigation; and there were 70 Members of the Senate who haven't even been briefed on the program. Well, the reason the Senate Select Committee on Intelligence was set up was to review some of the most important and highly classified intelligence-gathering activities of the intelligence community. It was agreed, as we all believe very strongly, that these are very important tools. No. 1, they must be overseen carefully to make sure that the constitutional rights, the privacy rights of American citizens, are protected, and at the same time, within the constitutional framework, the ability of the limited authority of the intelligence community to collect the intelligence is not inhibited. That is what the Senate Intelligence Committee has done in reporting out this bill on a 13-to-2 vote. I am very pleased that our colleagues showed confidence in us by passing this, essentially the same measure, 68 to 29 in February.

There are some who say we don't even know whom we are granting immunity to or what we are granting it to. Very simply, the people--the carriers, the good citizens--who responded to the request to protect our country from terrorist acts are now being sued, and some of them who didn't even participate may be sued. They can't say whether they participated. We are only saying if the Attorney General provides information to be judged on an appellate standard that is not without substantial supporting evidence, then these companies should be dismissed, either because they didn't participate or they participated in good faith.

It does not, as I pointed out, say the Government cannot be sued. There are some who believe--and I think they are wrong--that the President's TSP was unlawful. That can be litigated in the court system. It is being litigated. I will discuss further Judge Walker's opinion and why I think it is wrong and it will not stand up, but that doesn't change the fact that at the time the Attorney General told these American companies, these good citizens, that it was lawful for them to participate and they needed that help, they provided that help, and helped to keep our country safe. We should not thank them by slapping them with lawsuits that would not only destroy their reputation, endanger their personnel here and abroad, but potentially disclose even more of the operations of our very sensitive electronic surveillance program. The more the terrorists who wish to do us harm learn about it, the better able they are to defend against it.

These three amendments all seek to destroy that protection provided by good corporate citizens, patriotic Americans who are responding to a directive of the President, approved by the Attorney General.

Moving on to the first of the five items I haven't discussed, the first item is the concept of prior court review that was included in this language. It is important for all of us to understand that prior court review is not prior court approval. Prior court approval occurs when the court approves the actual acquisition of electronic surveillance as it does in the domestic FISA context. Prior court review, on the other hand, is limited to the court's review of the Government's certification and the targeting and minimization procedures. The prior court review contained in this bill is essentially the same as it was under the bipartisan Senate bill. However, the timing has been changed to allow the court to conduct its review before the Attorney General and the DNI authorize actual acquisition.

The bottom line here is that what many of us feared in prior court approval scenarios has been avoided. To ensure that will always remain the case, we have included a generous ``exigent circumstances'' provision offered by House Majority Leader Hoyer that allows the Attorney General and the DNI to act immediately if intelligence may be lost or not timely acquired. I thank Leader Hoyer for that suggestion. Thus, a finding of exigent circumstances requires a much lower threshold than an emergency under traditional FISA.

One of our nonnegotiables in reaching this agreement is that the continued intelligence collection would be assured and uninterrupted by court procedures and delays. It is only because this broad ``exigent circumstances'' exemption allows for continuous collection that I can wholeheartedly support this nuanced version of prior court review of the DNI and the AG authorizations.

Second, we agreed to language insisted upon by House Speaker Pelosi regarding an ``exclusive means'' provision. I am confident that the exclusive means provision we have agreed to will not--and indeed cannot--preclude the

President from exercising his constitutional authority to conduct warrantless foreign intelligence surveillance. That is the President's article II constitutional power that no statute can remove, and case law, including recent statements in opinions by the FISA Court itself, reaffirmed this.

I am aware, as several people have discussed, of the district court's ruling last week in California where, in a suit against the Government, the judge stated in dicta that:

Congress appears clearly to have intended to--and did--

establish the exclusive means for foreign intelligence

surveillance activities to be conducted.

Interestingly, Judge Walker ignored legislative history which acknowledged the President's inherent constitutional authority. Even though it may have been placed at the lowest ebb, if you agree with that interpretation of the constitutional limitations cited in the Senate Intelligence Committee report on the Senate FISA bill, he still has that authority.

For a variety of reasons, I strongly believe Judge Walker's decision will not stand on appeal. As to the court's comments on exclusive means, there is a fair amount of dictum standing in opposition to his opinion. I happen to think it is right.

For example, the FISA Court in 2002 ruled In re: Sealed Case--a very important decision which I urge everybody to read, if they have time-- noted with approval the U.S. Fourth Circuit's holding in the Truong case that the President does have ``inherent authority to conduct warrantless searches to obtain foreign intelligence information.''

The Truong case involved a U.S. person in the United States, and the surveillance was ordered by the Carter administration without getting a warrant. The Fourth Circuit upheld that action in the criminal prosecution of Truong.

These decisions, along with others like them, were ignored by the analysis of the district court judge last week. At most, this exclusive means provision only places the President at his lowest ebb under the third prong of the steel seizure case analysis, which I do not accept as being valid. But if you use that test, it still exists.

That is exactly where the President was when FISA was passed in 1978, and the revised exclusive means provision in this bill does not change that fact.

We should remember, however, even at its lowest ebb, the President's authority with respect to intercepting enemy communications is still quite strong, especially when compared to the nonexistent capability of Congress to engage in similar interception activities.

It has been said that the President initiated this without any congressional notice. I was not among them at the time, but I understand the Gang of 8 was thoroughly briefed before they started this program. The Gang of 8, for those who may be listening and may not be aware, consists of the Republican and Democratic leaders and second leaders in this body and the other body and the Democratic and Republican leaders of the House and the Senate Intelligence Committees. I believe these people were briefed on this program, and I understand that advice was given in that meeting that we could not change the FISA statute to enable the collection of vital information in any timely fashion; that we could not wait to start listening in on foreign terrorists abroad, possibly plotting against this country, until we passed it.

I think they were right. It has been 15 months since we were told that we needed to revise FISA. Outside of one 6-month, 15-day patch that we elected to adopt last August, we have not been able to change it. I hope a mere 15 months will allow us to change it. But the fact is, had we not had the concurrence of the Gang of 8 in the TSP, it is likely we would not be talking with shock and horror about 9/11, but we would be talking about other similar incidents occurring in the United States.

I believe with respect to the Speaker's own language, conditional language that she offered to us, it actually reinforces the President's article II authority. That bill language we accepted states:

If a certification . . . for assistance to obtain foreign

intelligence information is based on statutory authority, the

certification shall identify the specific statutory provision

and shall certify that the statutory requirements have been

met.

The obvious implication from this language is if a certification is not based on statutory authority, then citing statutory authority would be unnecessary. This language acknowledges that certifications may be based on something other than statutory authority; namely, the President's inherent constitutional authority. Furthermore, the DNI and Attorney General have assured me there will not be any operational impediments due to this provision. From a constitutional perspective, this language actually improved upon what we were looking at before in the Senate.

What Congress is clearly saying in this language is FISA is the exclusive statutory means for conducting electronic surveillance for intelligence purposes.

I am well aware that some will argue that there is no nonstatutory or constitutional means, but I can remember a long time ago when I was in a basic constitutional law course in law school that the Constitution trumps statutes. What the Constitution gives in rights or powers or authority cannot be exterminated, eliminated, or taken out by statute.

The courts have clearly said the President has that constitutional authority. I mentioned the Carter administration and the Truong case, but on a historical note, it is interesting to note that when President Clinton ordered a warrantless physical search, not electronic eavesdropping but a more intrusive, actual physical search of Aldrich Ames' residence in 1993, Congress responded by seeking to bolster the President's authority by updating FISA to include physical searches.

Aldrich Ames is a U.S. citizen, probably still in prison. Let's pause and think about that: President Clinton ordered a warrantless physical search of an American citizen inside the United States, and what did Congress do? Congress sought to assist the President instead of accuse him of illegal activity. It sought to help him. I would hope some of my colleagues would take a similar approach as we did with President Clinton before.

Third, as a part of our compromise with the House Democrats, we agreed to replace our version of what we call a carve-out from the definition of electronic surveillance with their definition of a carve- out which they call construction. Operationally, there is no difference between the two approaches, but we think our approach is more forthright with the American people because we put our carve-out right up front instead of burying it several chapters later in title VII of FISA as they wanted to do.

Why did they do this? I am sure this is not of great moment to anybody here, but let me say that it was clear from negotiations the other side wanted to be able to come out of the negotiations and say: We wrestled the Republicans back to the original definition of ``electronic surveillance'' in the 1978 FISA Act, but they failed to mention they buried their carve-out deep in this legislation, and it has the same effect.

They also failed to remind folks it was the original language of the 1978 FISA Act that, due to technology changes, got us into this mess in the first place.

Last year, when the DNI first asked us to modernize FISA, he requested we create a technology-neutral definition of ``electronic surveillance.'' I believed then and I still believe we should redefine ``electronic surveillance.'' FISA is complicated enough, and we should be forthright with the American people.

But some other leaders prefer for political reasons to bury construction provisions deep within the bill instead of presenting an upfront, crystal-clear carve-out. One consequence of their approach is that the same acquisition activities the Government uses to target non- U.S. persons overseas will trigger both the definition of electronic surveillance in title I of FISA and the construction provision in section 7.

Essentially, we have agreed to build an unnecessary internal inconsistency in statute as a political compromise. I reluctantly agreed to do this because the DNI and the Attorney General assured us that going for the carve-out

now would not create any operational problems for the intelligence community, but we should fix this in the future during less politically charged times.

For historical note, it should be remembered that the American Government was able to intercept radio communications long before we got into this stage of the intercepts without getting court orders. They were intercepting overseas communications which might have been coming into the United States, and they followed the same procedure that we do now. That was called the procedure of minimization for innocent conversations. Just like the case back when the radio interceptions were going forward, there is not, as I have said before, any evidence that we have seen that innocent Americans were being listened in on.

The bugaboo that this gives the intelligence community the right to listen in on ordinary citizens' conversations willy-nilly, without any limitations, is absolutely false. That is why we built in the protections in the law. That is why we have the layers of supervision to make sure it does not happen.

Fourth, we included a provision for coordinated inspector general audits of the TSP. However, the IGs will not review the substance of the legal reviews related to the President's TSP. In other words, they will not review whether the program was lawful.

I know some colleagues are saying the opposite in the media, but I encourage them to read the language because it is accurate. It is accurate that the IGs will not review whether the program was lawful.

The Senate Intelligence Committee already conducted an exhaustive review of the TSP and found no legal or unlawful conduct. There is no need for an IG audit to second-guess the bipartisan determination. Numerous IGs have already conducted reviews, and several reviews are ongoing. I cannot imagine the IG finding out anything different than they already have or that the Intelligence Committee has found for that matter. But it does make for good politics in an election year to say Congress mandated these reviews even if, in some cases, they will simply be doing reviews that have already been done. To reach agreement, we reluctantly agreed to a more redundant review on the overly taxed intelligence community.

I offer to those who want to challenge the lawfulness of the President's Terrorist Surveillance Program that this bill does not block plaintiff suits against the Government or Government officials. We only offer civil liability protection for providers in the bill. The court case I mentioned earlier against the Government will be able to proceed unaffected by this legislation.

Fifth, and finally, we agreed to a 5-year sunset instead of 6 years. I don't like sunsets. As intelligence community leaders have told us, there are no sunsets in fatwahs against the United States issued by al- Qaida leaders. I only agreed to a 6-year sunset in the Senate bill as a bipartisan compromise. But even with a 5-year sunset, Congress is unlikely to take up FISA reform again in the fall of a Presidential election year, and I trust they will have the good wisdom to push the sunset out longer so they don't find themselves in an election year going through the same drill. Regardless, there is little operational impact.

Remember, it is the job of the House and Senate Intelligence Committees to conduct ongoing, continuing oversight of electronic surveillance, as well as the rest of the intelligence community's programs. If we see the need to make changes before sunset, we will. A sunset does not change that.

In the end, I am proud to say we accomplished our collective goals of making sure we have a bill with clear authorities for foreign targeting, with strong protections for U.S. persons, and with civil liability protection for those providers who allegedly assisted with the President's TSP. We are in a better position today than we were a few months ago legislatively because we not only have the Senate bill before us in essence all over again--and one that received 68 votes the last time--but we have it before us already having passed the House. We know we have a bill we can send straight to the President that the Attorney General and DNI would support and the President can sign into law.

Should we fail to do so, there is a real danger we could fall back into the trap we were in last summer when because of the existing underlying outmoded FISA bill, we put the intelligence community out of business of collecting much vital intelligence during a brief period, far too long, but brief nevertheless.

Why is having essentially the Senate bill with minor tweaks before us all over again a major bipartisan victory? I answer: Because the Senate bill we passed a few months ago was the delicate bipartisan compromise that took months to produce. We had the bipartisan product that increased civil liability protections more than ever before and gave our intelligence operators the tools they needed to keep us safe. I am proud of that bipartisan bill, proud to have negotiated with the House to bring it back to the Senate with essentially the same position in a major bipartisan victory for all sides.

Mr. President, I will reserve the rest of my comments in appreciation of my colleagues. I thank the Chair, and I yield the floor.

Of course. I would be honored.

Well, to reply to my friend--who served in the past on the Intelligence Committee, I believe--that committee was set up to handle matters that involved the most critical classified information. The committee was set up, long before I came to the Senate, to provide a forum, a bipartisan group of Senators with a very able staff, to go over everything that was done in the intelligence community, to oversee it, to make sure it was proper, to make sure it stayed within the guidelines and to provide support and change it where necessary.

Now, I have fought very strongly, alongside my colleague, the chairman, to get the full committee briefed on all these programs. As I have said before, the terrorist surveillance program was not briefed to the full committee, it was briefed and then oversight held with eight people. This, to me, was a mistake. I believe it should have been briefed to the entire committee, but the members of that group of eight did know about it and were briefed about it.

Now, I might say to my good friend, the Senator from Pennsylvania, that we have many important committees putting out legislation on the floor. No person can participate in all the committee work. No person can be involved

in every committee. So we have to take the reports, and usually on a bipartisan agreement or disagreement, based on what our colleagues in those committees have studied, have reviewed, and have found to be the case. In this case, an overwhelmingly bipartisan majority of 13 to 2, after studying the bill and the question for 6 months and engaging in about 2 solid months of hard work, found out it was appropriate to give retroactive liability protection to these companies that had acted in good faith.

We were shown the certifications and the authorizations that went to them, and I believe, based on my legal background, that those were adequate and sufficient for these companies to participate. Let us remember, these were critical times. We had just experienced an attack. We were being threatened with more attacks. The Government went to some of these--not all of them but some--companies and said: Please help us. You must help us. We believe in the committee that their actions should not be punished but should be rewarded by preventing them from being harassed by lawsuits.

The legality of the program, if it is to be judged, was not one for a judgment for those companies to make, but it will be played out in Judge Walker's and other courtrooms.

Mr. President, I am happy to answer my colleague. He has stated that the Executive has violated the laws. Not under the constitutional authority that I have outlined. The FISA Court itself recognized what he fails to understand; that it is not a question of the carriers being held liable for any amount of money. Because I agree with him, they are not going to find anybody liable. But what they would do, by continuing having this out in open hearing, is to disclose the most secretive methods and procedures used by our intelligence community, giving the terrorists and those who seek to do us harm a roadmap for getting around it and avoiding those intercepts.

Now, what it would also do is expose those companies to tremendous public scorn and possibly even to injury to their property or to their personnel. Where they operate overseas, they might be attacked. When we started this debate, my colleague, the senior Senator from Illinois, was talking about how an unwarranted disclosure of a question about one of the vitally important exchanges operating in Chicago had cost billions of dollars to that exchange.

When you leak out something that is classified, when you leak out something that is secret, you can have a tremendous impact, and every shareholder of that exchange and every shareholder, whether it be in your pension fund or anyone else, of one of the carriers that might be drawn out and drawn into court in one of these actions, would lose significantly.

Now, to answer the question put specifically by the Senator from Pennsylvania, the cases against the Government are not blocked. The cases against the Government are not blocked. If we are looking for a means of determining the constitutionality, which I believe exists--he obviously doesn't believe exists. OK, we have a disagreement. He is a learned lawyer, and I studied constitutional law a long time ago. We have different views. I can line up a bunch of constitutional law professors on my side. I am sure he can do the same. But that court can go forward because a suit really is a suit against the government.

I think he is right when he is saying he doesn't want to hurt the companies. I don't believe any significant number of Members of this body want to hurt the employees or their shareholders of the companies that may have participated because they were true American heroes. But if he wants to solve the problem that he has--getting court review-- then there is no bar in this legislation to a suit against the Government, a Government officer, or a Government agent.

Mr. President, I yield myself 10 minutes in opposition.

When the inspector general audit provisions were first discussed in the House and Senate, there was a great concern that these audits would be used to delay or deny essential civil liability protections. Unfortunately, this amendment shows that these concerns were justified.

When negotiating this compromise legislation with House Majority Leader Hoyer, I agreed in good faith to a limited inspector general review of the President's terrorist surveillance program even though this program has been reviewed up and down on a bipartisan basis by the Senate Intelligence Committee and no abuse or wrongdoing had been found.

Now, in what I could only assume is a political move to undermine the critical civil liability protections in this bill, this amendment delays any liability protection until 90 days after the inspector general review of the bill is completed. What is supposed to happen after that is anything but clear, but I can only assume that will be followed by yet another effort to delay liability relief. That is extraordinarily and unacceptably unfair to those providers that assisted the Government in the aftermath of the September 11 terrorist attacks. We owe them our thanks, not our continued partisan maneuvering.

Earlier, we heard a justification for exposing these providers to public light, having participated in a classified program. The assertion was made: It is like our troops who go abroad and go under fire. Mr. President, as the father of a son who spent 20 months in the last 3 years as a marine sniper in Iraq, I can tell you that they go under tremendous threat and tremendous danger. But they are extremely well trained, they are extremely well supported, and they are extremely well armed.

To say with a straight face that we can subject private companies to that, private companies with American citizens working for them, and that we don't care if they are attacked when they don't have any protection, they don't have any weapons, they don't have any training, I think goes way too far.

That is not reasonable. Let's not hear any more of that stuff, that they should be put in the same position as our trained military men and women who go into battle accepting the risks of battle. These people, these good American citizens, did not expect to be under physical attack.

How often are we going to tell those patriotic Americans we have to delay further any halt to the lawsuits so we can ``review'' the terrorist surveillance program? Enough is enough. Inspectors general have very clear roles in our Government. They determine if there is waste, fraud, or abuse. Their review under title IV of this bill is essentially for these purposes. They will not determine whether the TSP was lawful. They will not determine whether the providers acted in good faith. That is for the court to do.

So exactly what purpose does it serve to delay liability relief to these companies? The only purpose I can think of is to appease these liberal activists who

have tried repeatedly throughout this FISA debate to tie the hands of the intelligence community and punish these companies with frivolous lawsuits.

What message are we sending to all of those private partners who help our intelligence community, our military, our law enforcement community on a daily basis far beyond the FISA context: Help us now, but we cannot guarantee that years later you will not be taken to the cleaners because you did. Is that an incentive? Is that the way we want to deal with fellow Americans whose help we need?

I appreciate there is serious debate about whether the President has article II authority to conduct surveillance. But this is a debate that should not impact whether these providers, who trusted their Government, who in good faith, on the word of the Attorney General, helped to ensure our homeland did not suffer another terrorist attack. And we think they should be treated fairly and protected.

We need to remember the Senate Intelligence Committee conducted an exhaustive review of the TSP. It found no evidence of illegal or unlawful conduct either by the providers or the Government. We agreed on a bipartisan basis, ratified by the Senate, that the providers acted in good faith. So I do not see how waiting to give them the fair and just relief they deserve advances any goals. It is more likely, the longer these lawsuits, these frivolous lawsuits go on, that our most sensitive sources and methods will be revealed. It becomes much more likely that the providers who helped us will refuse to do so unless we go through a lengthy process to compel them.

We went without cooperation for some time when the act expired, and it was only on the assurance of prompt action that they were able to withstand shareholder pressure and the advice of lawyers not to worry.

The Attorney General and the DNI sent a letter on July 7. It says:

Any FISA modernization bill must contain effective legal

protection for those companies sued because they're believed

to have helped the Government prevent terrorist attacks.

Liability protection, a fair and just result, is necessary to

ensure the continued assistance of the private sector.

H.R. 6304 contains such protection, but the amendment

addressed in this letter

Essentially the Bingaman amendment--

would unnecessarily delay implementation of the protections

with the purpose of deferring any decision on this issue for

more than a year.

Accordingly, we as well as the President's other senior

advisors will recommend that the President veto any bill that

includes such an amendment. The Intelligence Committee has

recognized the intelligence community cannot obtain

intelligence it needs without assistance from these

companies. We recognize that the companies in the future may

be less willing to assist the Government if they face the

threat of lawsuits, and we know that a delay could result in

the very degradation and the cooperation that this bill was

designed to provide. Continued delay in protecting those who

provided assistance will be invariably noted by those who may

some day be called upon to help us again.

Finally, by raising the prospect that the litigation at

issue could eventually proceed, this amendment fails to

address the risks that ongoing litigation will result in

release of national security sensitive information, a risk

that if realized could cause grave harm to national security.

I reserve the remainder of my time on this side. I ask unanimous consent that after the Senator from Pennsylvania is recognized, the chairman of the committee be recognized for 10 minutes.

I ask unanimous consent that this letter addressed to Leader Reid from the DNI and the Attorney General be printed in the Record.

I make a very generous allotment of 12 minutes. If he needs more, I am anxious to hear what he has to say.

I suggest the absence of a quorum and ask unanimous consent that the time be charged equally to both sides.

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

Mr. President, I ask if the Senator from Missouri will yield for two questions?

Will the Chair repeat that?

Mr. President, I will yield myself 5 minutes from my time on the amendment which is scheduled later this afternoon.

The first question I have relates to the Senator's contention that the action by the Intelligence Committee is sufficient.

We know from the representations made earlier today that some 70 Members of the Senate have not been briefed on this subject, and the House leadership has said that the majority of the House Members have not been briefed on this subject. There is no question that a Member's constitutional authority cannot be delegated to another Member. Under the procedures of the Senate and the House but focusing on the Senate, which is where we are, the committees hear the matters, they file reports, they make disclosure to the full body, and the full body then acts.

The question I have for the Senator from Missouri is: How can some 70 Members of the Senate be expected to cast an intelligent vote granting retroactive immunity to a program that the Senators have not been briefed on and don't know about, in light of the clear-cut rule that we cannot delegate our constitutional responsibilities?

Mr. President, on my time, which we are on, may I say, before moving to the second brief question, that I admire what the Senator from Missouri has done as vice chairman. I see his diligent work, and I know what the Intelligence Committee is involved with because I served on it for 8 years and chaired it in the 104th Congress. But when the Senator from Missouri delineates even the fewer members within the Intelligence Committee who were briefed, it underscores my point, and that is that most Senators haven't been briefed.

While it is true every Senator does not know what is in every committee report, at least every Senator has access to it, and it is not a matter where there are secret facts and there has been no briefing of them, or where there has been no disclosure and they are called upon to vote. Significantly, the Senator does not deny that no Senator can delegate his constitutional authority, and that is exactly what 70 Senators will be doing.

Let me move within my 5-minute time limit because time is fleeting and there is a great deal to argue.

We have here litigation which has been ongoing in the Federal court in San Francisco for several years, and a very extended opinion was filed on July 20 of 2006 by Chief Judge Walker on the telephone case on the state secrets doctrine, and that case is now on appeal to the Court of Appeals for the Ninth Circuit.

Here we have a context where the Congress has been totally ineffective in limiting executive authority, where the Executive has violated the specific mandate of the National Security Act of 1947 to brief all members of the Intelligence Committee. It hasn't been done. The Congress has been ineffective on the Foreign Intelligence Surveillance Act, where the Supreme Court denied cert, as I said earlier today, and ducked the decision. Although from the dissenting opinion in the Sixth Circuit, they could have found the requisite standing. Now we have Chief Judge Walker coming down with a 56-page opinion last Wednesday, which does bear on the telephone case. I concede, as the Senator from Missouri has said, that the telephone companies have been good citizens. But there is a way to save them harmless with the amendment I offered in February to substitute the Government in the shoes of the telephone companies.

Have they had problems with their reputation? Well, perhaps so, but they can withstand that. Have they had legal expenses? Well, those can be compensated by indemnity from the Government. We are all called upon to make sacrifices. My father, who served in World War I, was wounded in action. My brother served in World War II. I served 2 years in the Korean war, stateside. I don't think the telephone companies, given their positions, as regulated companies, have been asked for too much. I think it is highly unlikely they would ever have to pay a dime, but that could all be handled by substitution, so we look at a situation where we can both have this electronic surveillance program continue and not give up court jurisdiction through court stripping.

So that brings me to my question: Does the Senator from Missouri now know of any case--there have been jurisdictional issues of a variety of sorts--but any case involving constitutional rights, which has been pending for more than 3 years and is in midstream on appeal to the Court of Appeals for the Ninth Circuit--from a very learned opinion handed down by Chief Judge Walker in 2006--when the Congress has stepped in and taken the case away from the courts, in a context where there is no other way to get a judicial determination on the constitutionality of this conduct?

Mr. President, on my time.

I yield myself 3 more minutes.

On my time, Mr. President.

When the Senator from Missouri talks about being exposed to risks or physical harm, that is happening to American soldiers every day around the world, as we know. It happened to my father serving in World War I. There are certain risks, physical or otherwise, which have to be sustained in a democracy doing our duty. We talk about money, about costs. Dollars and cents don't amount to a hill of beans when you are talking about constitutional rights.

When the Senator from Missouri talks about the case can continue

against the Government, that is a fallacious argument. The Government has the defense of governmental immunity. The telephone companies do not have that.

I offered the amendment in February to have the Government step into the shoes of the telephone companies with no different defenses. They would have state secrets but no governmental immunity. That was turned down. It is a very different matter to drop suits as to the telephone companies. They do not have governmental immunity. It is very different. Significantly, when challenged for any case which has been going on for years, with these kinds of opinions by the Chief Judge in San Francisco and on appeal to the Court of Appeals for the Ninth Circuit, for the Congress to step in and take away jurisdiction is an anathema. In the context of congressional ineffectiveness on oversight on separation of powers and in the context of the Supreme Court of the United States, which, as I elaborated earlier today, has ducked it, the only way to get this decision is to let the courts proceed. Congress is ineffective on curtailing executive authority. That is why I think it is so important that we can both keep this surveillance program and at the same time protect constitutional rights.

Mr. President, how much time do I have remaining?

I yield the floor.

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

Mr. President, I now call up my amendment No. 5059.

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

Mr. President, I believe that history will look back at the period of time between 9/11 and the present as the greatest expansion of the executive authority in the history of this country. We have seen the unauthorized military commissions. We have seen the extraordinary rendition to the frequent invocation of state secrets, privilege, and the misuse of so-called signing statements.

The signing statements represent a fundamental failure of the Congress to utilize its constitutional authority. When the Constitution provides that there is a presentment by both Houses, the President either signs it or vetoes it, and the widespread practice has now come into play where the President signs and issues a signing statement undercutting key provisions of the legislation. I introduced a bill to give Congress standing to challenge that in court. It has gone nowhere because of the impossibility of overriding a veto and because of the considerations of case in controversy.

We have seen, in the context of the evolving issues, the total ill- effectiveness of Congress to provide the oversight of the Intelligence Committees. The National Security Act of 1947 expressly provides that matters such as the terrorist surveillance program should be submitted to the Intelligence Committees, but that has not been done. Only a portion of the Intelligence Committees have been briefed. Most of the limited briefing was done only when the administration needed some support for the confirmation of General Hayden as CIA Director. We have seen the provisions of the Foreign Intelligence Surveillance Act of 1978 bypassed by the executive branch on a claim of constitutional authority under article II, power as Commander in Chief, contrasted with the congressional authority under article I.

A Detroit Federal court declared the terrorist surveillance program unconstitutional. The Court of Appeals for the Sixth Circuit reversed, in a 2-to-1 decision on the ground of the lack of standing, with the dissenter filing an opinion showing ample basis for standing. The Supreme Court of the United States refused to review the case. They called it a denial of certiorari. That is the major constitutional confrontation of our era, between the President asserting article II powers as Commander in Chief and the explicit statutory provision enacted by Congress in 1978 providing for the exclusive means of having wiretapping. Instead, we have warrantless wiretapping.

The legislation pending now would provide retroactive immunity. I suggest retroactive immunity in a context that we could both preserve the electronic surveillance and leave the court with jurisdiction in one of two ways. One, by substituting the Federal Government as the party defendant of the telephone companies, in the shoes of the telephone companies with no more, no less rights; or secondly, requiring, as my amendment does, that the Federal district court would decide constitutionality. No one is denying the

telephone companies have been good citizens.

The argument has been made that, well, there may be money damages or there is a matter of public image which is involved. Well, monetary damages and public image, in my judgment, don't measure up to the right of privacy. Just as Oliver Wendell Holmes, in a 1928 case almost a century ago, said that wiretapping was ``dirty business''--and it remains dirty business--it may be necessary on national security grounds, but it has to be done within the confines of the law. That can be decided only by the courts, especially in the atmosphere that we have where the Congress has been so ineffective and where the Supreme Court of the United States ducked the issue on the case coming out of the Sixth Circuit, where there was ample grounds for finding standing to proceed with that case.

Within the past 6 days, there has been a major development on this issue as a result of a judgment handed down by Chief Judge Vaughn Walker of the U.S. district court in San Francisco. Judge Walker is the same judge who has the telephone company cases which were consolidated and sent to him under Federal rules on a multidistrict panel. Judge Walker found flatly that the President exceeded his constitutional authority when he ignored the Foreign Intelligence Surveillance Act. This is the exact language in the 56-page opinion:

Congress appears clearly to have intended to--and did--

establish the exclusive means for foreign intelligence

surveillance activities to be conducted. Whatever power the

executive may otherwise have had in this regard, FISA--

The Foreign Intelligence Surveillance Act--

limits the power of the executive branch to conduct such

activities.

So now we have the judge who is hearing these telephone cases having said that such surveillance is unconstitutional. FISA covers not only the traditional wiretaps but explicitly covers pen registers and trap- and-trace devices which could include whatever it is the telephone companies were allegedly doing. On that subject, we do not know the full extent of what the telephone companies are doing. All we have are the allegations and the legal papers. Here, Congress is being asked to pass upon a program on which most Members have not been briefed. As stated earlier on the floor today, 70 Members of the Senate would be called upon to vote on a program when they don't even know what it is. The House leadership has pointed out that most of the Members of the House of Representatives have not been briefed.

In an exchange with the Senator from Missouri today, I raised the fundamental constitutional point that Members' constitutional responsibilities cannot be delegated. You can't delegate them to a minority of the Senate, but that is what we are being asked to do. It is a pig in a poke. The old expression describes it very well. We don't even know what the program is, and we are being asked to ratify it.

The issue was put to the Senator from Missouri, the chief defender of this bill, of any precedent where you have a case pending before Judge Walker, an extended opinion in July of 2006 on appeal to the Court of Appeals for the Ninth Circuit. If this act is passed, it will be unceremoniously jerked out from under the court. I asked him if there is any case in history, and I would repeat that challenge to the distinguished chairman of the committee.

What we have left is judicial review. Without judicial review, there is no way to effectuate the constitutional doctrine of separation of powers, which is so fundamental in our society. Even when the proponents of the bill talk about money and business reputation--no one is challenging the good citizenship of the telephone companies, and the likelihood of monetary damages is extremely remote. But if the Government were to be substituted as the party defendant, that is a matter of dollars and cents which hardly comports to the fundamental issues which are involved in civil liberties.

It is understandable that Congress continues to support law enforcement powers because of the continuing terrorist threat. No one wants to be blamed for another 9/11. My own briefings on the telephone companies' cooperation with the Government have convinced me of the program's value so that I voted for it, even though my amendment to substitute the Government for the telephone companies was defeated in the Senate's February vote. Similarly, I am prepared to support it again as a last resort, even if it cannot be improved by providing for judicial review, the pending amendment. However, since Congress has been so ineffective in providing a check and balance, I will fight hard--and I am fighting hard--to secure passage of this amendment to keep the courts open. It is our last refuge, our last big stand when the stakes are high, and they invariably are. When Congress addresses civil liberties and national security, Members frequently must choose between the issues of two imperfect options. Unfortunately, we too often back ourselves into these corners by deferring legislation until there is a looming deadline. Perhaps that is why so many of my colleagues have resigned themselves to accepting the current bill without seeking to improve it further.

Although I am prepared to stomach this bill if I must, I am not yet ready to concede that the debate is over. Contrary to the conventional wisdom, I do not believe it is too late to make this bill better. Perhaps the Fourth of July holiday will inspire the Senate to exercise its independence from the executive branch, now that we are back in Washington.

How much time do I have remaining, Madam President?

I reserve the remainder of my time.

Madam President, I had hoped to ask a couple questions of the distinguished Senator from Rhode Island. I consulted with the chairman, who wants to be recognized next. It would be my request, if I may have Senator Whitehouse's attention, that he stay on the floor to engage in a discussion, a colloquy with me when the chairman has concluded.

Madam President, I do wish to engage in a colloquy with the Senator from Rhode Island, but first, with the chairman having just completed, I would like to respond to some of his contentions and engage in a question or two with the chairman.

When the Senator from West Virginia argues that my amendment would undermine the delicate compromise which the Intelligence Committees have reached, that is what the full Senate is supposed to do. The committees deliberate, the House and the Senate come to a conference report, they bring the matter to the Senate, and then it is up to the full body to make a determination. So there is nothing unusual about disagreeing with the compromise, however delicate.

The chairman argues that it would require the courts to consider difficult constitutional issues. That is exactly what the courts are supposed to do. The full impact of Chief Judge Vaughn Walker's decision and how far-reaching it goes has not been felt, understood, or analyzed in the course of only 6 days--an opinion which runs more than 50 pages. We are dealing with court-stripping in the middle of litigation that has been going on for years. Judge Walker's opinion concerning the telecom companies was in July 2006, with the telephone companies now on appeal.

It really goes back to the fundamental principle of Marbury v. Madison, when Chief Justice Marshall made the determination that it is up to the courts to decide what the Constitution means, and we would be undercutting that judicial process in midstream.

Earlier, I posed a question to the Senator from Missouri, which if the chairman wishes to answer would be fine. I know and I admire what Senator Rockefeller has done. I have worked with him since he was elected in 1984, and we worked together on the Veterans' Committee and on intelligence matters and on many major matters. When the history is written, there will be a famous handwritten letter disclosed by Senator Rockefeller to the administration about how deeply he feels and how deeply he cares about these matters. But I questioned the Senator from Missouri, who is a member of the bar and quite a scholar on constitutional law, if there had been any case known to him picked up in midstream after years of work in the district court and pending on appeal. It really goes right to the heart of Marbury vs. Madison.

You have Chief Judge Walker having flatly decided that the terrorist surveillance program is unconstitutional, and you have Chief Judge Walker leaving aside the issues of standing but saying:

Plaintiff amici hint at the proper showing when they refer

to ``independent evidence disclosing that plaintiffs have

been surveilled'' and a ``rich lode of disclosure to support

their claims.''

Going to the standing issue. Although not decided, why not let the courts finish it? You have these decisions. Why not keep the current program in effect and not interrupt the courts and have the judicial decision?

So when the chairman raises the point that it would require the courts to consider difficult constitutional questions, I agree with him, but that is what the Federal courts are supposed to do, and it really is untoward for the Congress to step into the middle of it. I know of no case like it. And here we are being asked to strip the court of jurisdiction when they are in midstream, where they may well find some important facts to some important matters in the course of the judicial decisions which would influence Congress.

We have the amendment offered by the distinguished Senator from New Mexico, Mr. Bingaman, which would call upon the inspector general to find out what the facts are on immunity since, as I say, we are being asked to pass on this when we don't know the full import. And I support the Bingaman amendment. I am an original cosponsor of it. Well, similarly, what Chief Judge Walker may find here may be very important.

But let me raise the first of two questions with the chairman.

Certainly. I will yield.

Well, Madam President, by way of reply, I understand that this provision only concerns the telephone companies, and I understand the chairman's argument about good faith. But good faith is not determinative in and of itself. If the conduct violates the Constitution, there is a constitutional violation no matter how good the faith may be. It would be a good reason to indemnify, to substitute, to hold them harmless, but not to exonerate them for a constitutional violation.

The chairman says companies should not be held liable if the Government acted unconstitutionally. That is not correct as a matter of law. Where the telephone companies are aiders and abetters and accessories before and after the fact and really act jointly with the Government, they can be liable.

Let me finish the reply, and I will be glad to yield again.

When the argument is made that only the case against the telephone companies is involved, that is not quite accurate. It is being dismissed. It is no coincidence that Chief Judge Walker handed this opinion down a few days--6 days--before it was publicly known that the Senate would be taking up this issue. And he went out of his way to raise the issue about standing and the rich lode of disclosure. So if this act is passed and retroactive immunity is granted, it will remove the telephone companies, true, and there will be another case standing, but there will be no judicial determination of the constitutionality of what the telephone companies did.

Chief Judge Walker has those cases against the telephone companies too, and he has pretty well given a roadmap as to what he is going to do because he said the terrorist surveillance program is unconstitutional and the Foreign Intelligence Surveillance Act covers pen registers and trap-and-trace devices, covering whatever it is the telephone companies did here; although, again, we do not know for sure. So where he said the terrorist surveillance program is unconstitutional and the statute covers pen registers and trap-and-trace devices, to remove the case from him at this stage will eliminate a determination of the constitutionality of whatever it is the telephone companies did and really flies in the face of the historic role of the courts since 1803 in Marbury vs. Madison.

Now I am glad to yield to the chairman.

Will the Senator yield?

For the first time, I take sharp distinction with the chairman when he says there has been no recognition about the importance of intelligence or the workings of the Intelligence Committee or of special expertise.

If I may continue?

If I may continue, no recognition of the work of the Intelligence Committee--let me limit it to that--which was certainly said.

I take sharp exception because I served 8 years on the committee and served as chairman for 2 years. I think I know what the Intelligence Committee does and what its work is.

I take sharp exception to the suggestion that there is not a full awareness on the part of this Senator as to the terrorism threat. I made that explicit. When I said that if I have to take this bill, I will, because of the threat of terrorism, just as I voted for the bill earlier when my substitution amendment was not adopted.

But when the chairman says that this has gone through a laborious process with the House and is a delicate compromise--that happens all the time. It happens all the time. You are right in the middle of it, you have seen it, and I know, too, because I have been there. I have been here 28 years, and I know exactly what goes on.

When you say this ought to be accepted, I disagree. This bill can be made better.

When you say you deal with the intelligence function and not the constitutional function--again, I sharply disagree. We have to legislate on what is constitutional. We may have a different opinion than Chief Judge Walker, but we cannot ignore the question of constitutionality. If it takes 3 or 4 more years, we are talking about civil rights and constitutional rights.

This program has been continued on a temporary basis. It has been extended. The intelligence chiefs have been satisfied with that.

I don't like to extend it. I would like to resolve it now. But if it takes the courts longer--the Supreme Court ducked the Detroit case. If it takes them years to decide this, that is the price of constitutional rights.

If you take a look at the history of this country, if you take just one case, Plessy v. Ferguson, in 1896, I believe, to Brown v. Board in 1954, to eliminate separate but equal, you come to a constitutional doctrine.

I am prepared to take my time, if I can find the requisite number of votes in this body.

Madam President, how much time remains on each side?

Madam President, this is as good a time as any to move forward with a question or two, which I would like to have in a colloquy with Senator Whitehouse. This issue has been raised before, but I would like your views on it, Senator Whitehouse. You have a distinguished record as an attorney, U.S. attorney, attorney general, serving with distinction on the Judiciary Committee for the past year and a half.

I raised the issue earlier about the constitutional authority of a Member to delegate his authority, recognizing that there are many matters where we accept committee reports, but at least Senators have access to material. When I was chairman of the Judiciary Committee--the tradition is to tell the chairman and the ranking member about a program such as the terrorist surveillance program. I was blindsided by it, in mid-December of 2005. We were on a Friday, the final day of the argument on the PATRIOT Act. We were about to go to final passage, when the New York Times published its paper. That morning Senators said they had been prepared to vote for it but no longer were. As chairman of the committee, I could not be briefed on the program.

Since that time, there has been a change of heart to an extent but, as stated on the floor of the Senate earlier, some 70 Members of this body will be voting on retroactive immunity for a program they do not know or understand. The majority of the House, according to House leadership, has not been briefed on the program.

Do you have any doubt that we may not constitutionally delegate our authorities to vote?

I would like a reply as to whether it is your view, as a constitutional matter, Members of Congress can delegate their authority to vote.

Madam President, the statistics I have are, out of the House there have been 21 House Intelligence Committee members briefed and as many as 40 Judiciary Committee members; in the Senate, 15 on the Intelligence Committee and 19 on the Judiciary Committee for a bicameral total of 95, which is 17.75 percent of the entire Congress. But if you take the chairman's figures, you still have a majority of Members of Congress who have not been briefed, who are, in effect, delegating their authority to vote on a matter where they don't know what they are granting immunity for.

But I refer, again, to the Senator from Rhode Island, if he cares to answer the question.

Madam President, one final question. Does the Senator from Rhode Island know of any case which has been pending in the Federal courts for at least 3 years, as the telephone company case has, with the opinion by Chief Justice Walker in July of 2006 and now pending on appeal in the Ninth Circuit, where the Congress stepped in to take away the jurisdiction by a grant of immunity as proposed in this legislation?

Judge Walker is certainly listening to constitutional claims. He may even be listening to the Senate. Somebody may be listening on C-SPAN 2.

I thank the distinguished Senator from Rhode Island for his candid answers.

How much time is remaining?

The PRESIDING OFFICER (Mr. Lautenberg.) The Senator has 13 and a half minutes remaining.

Mr. President, I reserve the remainder of my time.

Mr. President, the pending business on the Foreign Intelligence Surveillance Act is an amendment which I have pending, No. 5059. We started at 4 o'clock, and we are due for 2 hours. I stepped off the floor for just a few minutes for necessaries and have come back to find a unanimous consent proposal for some six speakers. I have talked to a number of Senators on the floor, and they are in morning business.

It seems to me the orderly procedure would be to allow us to finish our bill. I understand any Senator can come out and ask for unanimous consent. But, candidly, my good friend from Virginia, I wish you had given me notice.

Well, with all due respect to my good friend from Virginia, I was on the floor all afternoon, you sitting there and me sitting here. But that is water over the dam.

My request, Mr. President, is that--the only Senator on this list who I have ascertained is going to speak to the bill is Senator Carper; he is on the list now for 10 minutes--we conclude the bill, or the alternative: to move ahead with the balance of the times reserved until tomorrow morning.

Mr. President, with respect to waiting, I have been here since 11 o'clock this morning on this bill.

Mr. President, I ask unanimous consent that Senator Carper be recognized, as he is, for 10 minutes, and that the other Senators subject to the unanimous consent request be accorded the time given to them, and that the remainder of the time reserved be scheduled for tomorrow at the discretion of the majority leader.

Mr. President, will the Senator repeat his reservation, please.

Mr. President, parliamentary inquiry: I heard the Chair say there is 10 minutes remaining of my time.

Well, that time is yielded to Senator Carper, so that would take all the time allotted to this Senator.

Well, there has been an objection to it, as I understand.

Mr. President, will the Senator from Delaware yield for a moment?

Mr. President, I understand the Senator from Delaware is using time from Senator Rockefeller.

So my time would remain. I had thought there was 13 minutes remaining. Is there only 10?

I thank the Chair, and I reserve the remainder of my time, however the scheduling may work out.

Mr. President, on behalf of the leadership and the floor managers, I have been asked to propound a unanimous-consent request that the following Senators be recognized, assuming they are here on the floor in time to be recognized: I will speak now for about 15 minutes, to be followed by Senator Carper for 10 minutes. I see my distinguished friend, the Senator from Mississippi; if he could indicate how much time he would like.

He is to be joined by Senator Wicker.

All right.

All right. And Senator Stabenow, I do not see her, but let's put her down for 10, and Senator Cornyn.

With that in mind--I do not see any other Senators seeking recognition--I ask it in the form of a unanimous consent.

Mr. President, I rise, along with the distinguished chairman and ranking member of the Intelligence Committee on which I am privileged to serve. I commend my chairman and ranking member for the extraordinary capability with which they have handled this controversial issue of

the FISA legislation and the bipartisanship they have shown. Our committee voted 13 to 2 on this measure which is now before the Senate. Currently, we have the Bingaman and Specter amendments. I join my chairman and ranking member in opposing these two amendments. They seek in one way or another to remove or render useless one of the most important sections of the FISA Amendments Act which is liability protection for the telecommunication carriers that assisted our Government with the President's terrorist surveillance program or TSP. Without the title II liability protection, the other sections of the FISA Amendments Act would become irrelevant because the carriers would not cooperate in the authorized programs.

This would be unfortunate, because the FISA Amendments Act is a critical piece of legislation for America's present and future security that achieves an important balance between protecting civil liberties and ensuring that our dedicated intelligence professionals have the capabilities they need to protect the Nation. The bill ensures that the intelligence capabilities provided by the Protect America Act, enacted in August 2007, remain sealed in statute.

Reforming FISA has not been an easy process. I would like to thank Chairman Rockefeller and Vice Chairman Bond for the work they have done to garner bipartisan support for the FISA Amendments Act. It would be unfortunate if that work were undone by one of these amendments.

If passed, the Specter amendment would prohibit the dismissal of the lawsuits against the telecommunications carriers if the President's Terrorist Surveillance Program were found to be unconstitutional by the courts. With all due respect to my colleague from Pennsylvania, I believe that whether the President acted within his constitutional authorities should be treated separately from the issue of whether the carriers acted in good faith.

The extensive evidence made available to the Intelligence Committee shows that carriers who participated in this program relied upon our Government's assurances that their actions were legal and in the best interest of the security of America.

Mr. President, I would like to call the Senate's attention to the report which accompanied the version of the FISA Amendments Act passed by the Senate Intelligence Committee by a vote of 13-2. Based on the committee's extensive examination of the President's TSP, the report noted that the executive branch provided written directives to the carriers to obtain their assistance with the program. After its review of all of the relevant correspondence, the committee concluded that the letters ``stated that the activities had been authorized by the President [and] had been determined to be lawful'' The committee report added the following:

On the basis of the representations in the communications to

providers, the Committee concluded that the providers, in the

unique historical circumstances of the aftermath of September

11, 2001, had a good faith basis for responding to the

requests for assistance they received. Section 202 makes no

assessment about the legality of the President's program. It

simply recognizes that, in the specific historical

circumstances here, if the private sector relied on written

representations that high-level Government officials had

assessed the program to be legal, they acted in good faith

and should be entitled to protection from civil suit.

The Senate Intelligence Committee believed, by a vote of 13-2, that the companies acted in good faith and that they deserve to be protected. I agree and I believe that the TSP was legal, essential, and contributed to preventing further terrorist attacks against our homeland.

But, even if one were to disagree that the President acted within his article II powers, I cannot see the wisdom in seeking to punish the carriers and their shareholders for something the Government called on the carriers to do with the assurance that the action was legal.

The Specter amendment would put the companies, and their millions of shareholders, in legal limbo, waiting while the Government litigates unrelated constitutional claims. Historically, the Supreme Court has been reluctant to adjudicate constitutional disputes between the political branches of our Government, suggesting that a constitutional question could take years to resolve, if it can be resolved. Lawsuits against the companies would likely continue in the interim which would: Have negative ramifications on our intelligence sources and methods; likely harm the business reputations of these companies; and cause the companies to reconsider their participation--or worse--cause them to terminate their cooperation in the future.

I believe it would be unfair to use private companies as a substitute to adjudicate constitutional claims properly directed against the Government. My colleagues should keep in mind that individuals who believe that the Government violated their civil liberties can pursue legal action against the Government, and the FISA Amendments Act does nothing to limit that legal recourse. As noted by my colleague from West Virginia, the case that was before Judge Walker--which addresses a constitutional challenge against the government--can proceed.

Bottom line, companies who participate in this program do so voluntarily to help America preserve its freedom and the safety-- individually and collectively--of its citizens. I have long supported the idea of a ``volunteer force'' for our military and I believe a ``volunteer force'' of citizens and businesses who do their part to protect our great Nation from harm is equally important. I fear that if we are forced to draft companies into compliance when our Nation calls them to duty, ultimately our security will suffer. Without this retroactive liability provision, I believe companies will no longer voluntarily participate. This will result in a degradation of America's ability to protect its citizens.

It is for these reasons that I urge my colleagues to oppose the Specter amendment and any other amendment that would change the FISA Amendments Act.

I yield the floor.

I wish to conclude by saying that as I view this situation, I liken the private sector that has responded to the request of the Federal Government, which has been given assurances by the Federal Government, to the all-volunteer military force we have today. It is imperative that within the private sector there be elements, primarily these corporations and companies which have come forward to provide the technical assistance and also the facilities by which to implement the FISA program. They have done it by and large voluntarily. The program could not succeed without their participation. Therefore, they ask no more than what is justly owed to them, and that is protection from the lawsuits. I hope we can turn back these two amendments and proceed to final passage and that the Senate will go on record as supporting the essential nature of the FISA program.

Energy Crisis

Mr. President, I rise to turn to the question that confronts America today; namely, the energy crisis. I use the word ``crisis'' advisedly, because today no less than a third of Americans are absolutely struggling night and day to find the funds necessary to meet ever increasing food prices and ever increasing energy prices. It is for that reason I have taken a step. I wish to repeat that. I have simply taken a step to write the Secretary of Energy and to write the Comptroller General, the head of the GAO, to determine what are the facts relating to the 1973-1974 energy crisis, how America addressed that crisis, and the actions taken by the President and the Congress in 1973-1974. Again, Congress acted unanimously to back the President in imposing a national speed limit, that speed limit for the purpose of lessening the demand for gasoline and hopefully to have consequent savings at the gas pump.

That is a chapter in American history. I remember it quite well. I was privileged at that time to be Secretary of the Navy. Indeed, the Department of Defense, although at war in Vietnam, came forward and participated to try and help America work its way through that energy crisis. The national speed limit was the centerpiece of that program.

I ask unanimous consent now to print in the Record the letters I sent to the Secretary of Energy and the Comptroller General at the conclusion of my remarks.

I thank the Presiding Officer.

Again, I am not taking a position that at this time we should invoke a new initiative in the Congress to pass legislation calling for a national speed limit because I simply do not have the facts. I am on a fact-finding mission. But if those facts come forward, as I believe they will, and show that this will help alleviate and lessen the demand at the pump and the cost to the American citizen, then I am quite likely to try--more than that, I am quite probably going to try--and garner support on both sides of the aisle to push forward with this legislation. I say so because I come back again to about a third of America at this point in time is frantically trying to make ends meet. We have to come up with a solution. We have to lead in the Congress, and hopefully the President will join. We have that duty.

Therefore, these two letters going to, certainly, the GAO, an impartial arbiter of the facts and finder of the facts, will provide this Chamber with the information necessary to make an informed judgment as to whether to go forth with legislation. I deem that the Secretary of Energy will reflect, quite understandably, the policy of an administration toward such a measure to bring about alleviation of the pressures at the gas pump today and on families.

Again, this step is in the category of conservation of energy. My colleagues--and I have participated with them--are looking at, in my opinion, three areas of addressing this problem: short-term, which is conservation, that is the only way to bring about some immediate measure of relief; secondly, intermediate steps, which I outlined in my speech here; and lastly, the long term. Much has been said about long- term steps. I take pride and push aside any sense of humility because for several years I have stood on this floor and urged offshore drilling, even put forth a measure here in this body which was defeated which called for the right of my State, Virginia, and such other States that might wish to join, through the Governor and the State legislature's participation, agreeing to drilling offshore of Virginia for gas. I am not suggesting I brought about a change of thinking in the administration, but the President now supports that concept. Indeed, a number of my colleagues now support that concept. I opine that I believe in due course the Congress will provide the President with legislation to take those important steps. But that offshore drilling will not lessen the price today at the pump.

It will not help a case which was the final straw to decide that I would embark on this course, when I read an article about the meals on wheels program where the shut-ins at home, who for economic reasons and physical reasons and other reasons can't go out and get their meals. They rely upon a system of volunteers to bring the meals to their homes. But that program is beginning to founder because the volunteers simply cannot afford the additional cost of gasoline. I don't know about my colleagues, but this causes me severe heart palpitations and concern. The reporter said to me, when he interviewed me on this an hour or so ago, a national reporter: All right, Senator, are you willing to drive at a slower rate? What sort of car are you driving?

I told him what type of car I drive. I said: There are occasions when I drive over 55 miles an hour, 60 miles an hour, sometimes 65. But I am willing to give up whatever advantage to me to drive at those speeds with the fervent hope that that modest sacrifice on my part will help those people across this land tonight and tomorrow and in the indefinite future dealing with this financial crisis.

I point out also that in 1973-1974, these were automobiles, how well I remember, without growth of the quick production lines that started after World War II. America was flourishing. Then all of a sudden, the Arabs put an oil embargo on this country and took away our ability to get fuel. The President reacted quickly. The Congress reacted quickly. We put in that limit. In due course, the pressure on the pump declined and gas fell to about $2 a gallon. In 1995, 20 years after the enactment of this legislation by the Congress and the President, the 55 miles was lifted. Mind you, it wasn't one President; it was a series of Presidents who endorsed this program of conservation in terms of the reduction of speed. I don't know. At one time I used to be a pretty good mechanic on automobiles, but they have now gotten a degree of complexity that is beyond my grasp. I rely on my son, who has devoted much of his life to auto racing.

He is a wonderful mechanic and an engineer on cars. He said the carburetion system--he argued with me about this when I spent the past weekend with him--shook his fist at me: I don't want this 55-mile-per- hour limit. And that is good advice. But he said the carburetion systems in cars today are better than they were in 1973 and 1974, and I judge that to be the case.

So I asked in my letters: Analyze the technical capabilities of the cars today, and could we anticipate bringing about a savings at the gas pump by virtue of a national speed limit? So we have to get the facts and put them together.

But I ask my colleagues, as they proceed to work on this issue--and I am all for the renewables, but that is long term. Offshore drilling: long term. We have to focus now on what measures we can take to help people now, if not long term.

I know colleagues are getting the same calls and the same letters I am receiving from those people who, frankly, feel very oppressed by this rapid development. Although it has increased basically a dollar a gallon in the last year, so much of it has come on in the last 120 days, unanticipated in speed and causing great hardship here at home.

I yield the floor.

Exhibit 1

U.S. Senate,

Washington, DC, July 3, 2008.

Hon. Samuel W. Bodman,

Secretary of Energy,

Washington, DC.

Dear Secretary Bodman: I write today with respect to the

high cost of gasoline. Today, the average cost of a gallon of

regular gasoline is more than $4.10. This is an increase of

well over a dollar a gallon from a year ago.

As you know, each and every day, Americans struggle to cope

with this rapid, record increase in fuel costs. Across the

United States, individual Americans are taking their own

initiatives to find ways to reduce gas consumption through

driving less, altering daily routines, and even changing or

cancelling family vacation plans.

To date, as far as I can determine, the federal government

has taken few, if any, initiatives to join in this national

effort to help address this ever increasing crisis.

I believe it is essential that we continue to modernize our

energy infrastructure and develop a reliable, commonsense

American energy strategy--one that includes new supplies from

domestic exploration and extraction, encourages conservation,

and promotes the use and advancement of clean, renewable

energies.

I am among a group of many senators today who are working

in a bipartisan fashion to find a solution. For the past

several years, I have supported permitting the Commonwealth

of Virginia to explore and extract energy offshore if its

Governor and General Assembly so desire. This concept has

just recently gained the support of the administration and a

growing number of colleagues in Congress.

However, the truth is that new technologies and new sources

of energy will not provide meaningful relief for years to

come as new technologies are developed and as new sources of

energy are discovered and extracted. We must be straight with

the American public and not raise hopes that these efforts

will provide immediate solutions and possible relief.

There are ways to give some immediate relief. In my view:

new conservation efforts are the quickest way to see an

immediate reduction in the price of gas at the pump. The

American public is already doing its part through individual

means of cutting back.

On a federal level, on May 22, 2008, Senator Bingaman and I

introduced, and the Senate unanimously passed by voice vote,

a sense-of-the-Senate resolution (S. Res. 577) that urged the

President to initiate, among all federal departments and

agencies of the executive branch, a reduction of their daily

consumption of gasoline--if only by a small percentage.

To my knowledge, the administration has not responded to

the Senate's action. In the absence of pending administration

action, Congress should join with the public and make the

concepts in the sense-of-the-Senate resolution a mandatory

law.

Turning to another concept, I call to your attention action

taken by the Congress and the executive branch during a

similar petroleum shortage that occurred in 1973 and 1974. In

January 1974, the President signed into

law ``The Emergency Highway Energy Conservation Act'' (public

Law 93-239), which passed both the House and Senate

unanimously. This law was enacted in an effort to conserve

fuel.

Specifically, the law put forth inducements for states to

reduce speed limits to 55 miles per hour (mph) on all major

highways. Failure to do so would jeopardize the ability of

states to secure federal highway funds. The law was

originally intended to be temporary, ceasing to be in effect

if the President declared that there was no longer a fuel

shortage or on or after June 30, 1975, whichever occurred

first.

According to a Congressional Research Service report, the

law resulted in reduced consumption of 167,000 barrels of

petroleum a day, a roughly 2 percent reduction in the

nation's highway fuel consumption. In addition, the National

Academy of Sciences found that the law saved up to 4,000

lives per year from highway accidents. Given the significant

increase in the number of vehicles on America's highway

system from 1974 to 2008, one could assume that the amount of

fuel that could be conserved today is far greater.

Given the fuel savings of the act, and the resulting

significant decrease in highway fatalities attributable to

the national speed limit, Congress made the national speed

limit permanent in December 1974. In 1995, the law was

repealed.

The purpose of this letter is to ask you to study this era

of conservation, as I have, to determine whether the

administration, with the support of Congress; should take

similar action today.

According to the U.S. Department of Energy Web site,

engineering data shows that fuel efficiency decreases rapidly

above 60 mph. Specifically, for every 5 mph an individual

drives over 60 mph, that individual essentially is paying an

extra 30 cents per gallon in fuel costs.

As Congress continues to look for ways to ease this

national problem, I put to you the following questions. I

will share your responses with my colleagues.

(1) Given the significant technological improvements since

1974, at what speed is the typical vehicle traveling on

America's highways today most fuel efficient?

(2) If a national speed limit was enacted similar to the

1974 law, but the speed limit under that law was consistent

with most fuel efficient speed for the typical vehicle

traveling on America's highways, what would be a reasonable

projection for total fuel savings? And, what would be the

savings for the average citizen who owns and operates a

vehicle?

(3) If a new national speed limit was enacted consistent

with the two questions listed above, how many fewer barrels

of petroleum a day would Americans consume? Is it reasonable

to believe that there would be a reduction in price at the

pump? And, if so, what are the ranges you could project for

cost reductions?

(4) If the federal government took the initiative to reduce

its oil consumption, consistent the concepts of the sense-of-

the-Senate resolution (S. Res. 577) how many fewer barrels of

petroleum a day would be saved by the federal government?

Given that Congress, upon its return next week, will be

vigorously considering all options, your response to this

request could be of great help to my colleagues and me.

Again, years ago, the Emergency Highway Energy Conservation

Act worked. The administration's advice, after examining this

era and these concepts, would be helpful.

With kind regards, I am

Sincerely,

John Warner.

Mr. President, I felt I was acting at the personal request of

Chairman Rockefeller and the ranking member when I did this. I inquired on the floor as to the desires of other Senators. I regret, my dear friend, I would not have done this in any way to deter your ability to do what you feel you have to do on this bill.

So at this point in time, certainly the floor is open to additional unanimous consent. But I do bring to your attention the Senators who are currently in the Chamber are here as a consequence of the UC that I proposed at the request of the two managers.

Mr. President, again, Senators on the floor can certainly speak for themselves, but I point out I think the Chair advised the managers as to the time remaining on both sides of the bill.

Am I not correct, I ask the Presiding Officer? Could you inform the Senate as to the times remaining under the UC to which my good friend from Pennsylvania refers?

Mr. President, I leave it to the Chair to address that. I think the Senator from Pennsylvania should be recognized for the purpose of his 10 minutes, but I am not sure we are in a position to foreclose other Senators who have been waiting here patiently to address the Senate on other matters.

It seems to me the Senator from Pennsylvania should revise the request to enable him to have his 10 minutes and Senator Carper his 10 minutes and then allow the Chamber to proceed with other matters. It seems to me that is a fair resolution to this problem.

Again, I apologize if I was acting--as I was so asked to do--contrary to the Senator's wishes.

Mr. President, I will not object. I wish to thank my colleague for what I think is a very fair resolution to this situation.

Mr. President, I ask Senator Bond, the vice chairman of the committee, to yield me 10 or 11, potentially even 12 minutes.

I appreciate my colleague yielding me time.

Mr. President, Senator Bingaman, who I greatly respect in all ways, has offered an amendment altering the liability protections of title II. That is it. His amendment would postpone the implementation of the liability provisions of the bill until 90 days after the submission of the final report of the inspectors general required under title II.

Now, I appreciate the Senator's desire to have more information out there. But I want the Senator to contemplate, and the Senate as a whole to contemplate, what we are asking. We are talking about a year for the inspectors general to complete their reports.

Does it really work that way? Is it really a flat year? Are we going to send out Federal marshals to have them all do their reports on the exact day? Probably it will stretch a little bit. Maybe it will not; maybe it will.

But you cannot assume it will not. Then you have to add on 90 days. Then you can get to the question of the immunity. I am really baffled by that because what it, in effect, says is, we are almost certainly going to be going through a period of something, which I have not heard discussed today during this entire debate, and that is the actual collection of intelligence that involves highly classified material of a foreboding nature for a long period of time until the Senator from New Mexico and/or the Senate can be convinced that it is worthwhile to give immunity or to understand this program.

Now, I want to make an even more basic point: By inserting this amendment, requesting this amendment be passed, I hope the good Senator does understand that he is undoing a very carefully calibrated compromise between the Senate-passed bill and the House-passed bill that is on title II, taking months and months of negotiations to get to the point where Speaker Pelosi, for example, who was violently against the bill, and title II in particular, and Steney Hoyer, who was very much against title II, the immunity portion of the bill, where they could say, on the floor of the House: We think sufficient progress has been made in the negotiations that we will vote for this bill, which the House did by about 70 percent.

Now, that is going from the House not even considering title II. I mean, they considered and rejected it. It was a sea change.

It was a sea change, and one has to have been there to see how the change took place, the good faith bargaining on the part of Vice Chairman Bond, myself, our mutual staffs, working with the DNI and others, long hours and long days with which we have arrived at something which, if we pass this today, will go to the President to be signed. If we accept this amendment or, for that matter, accept the Specter amendment that follows, it will have to go back to the House, which will not take it up, which will not consider it, which will undo everything, and there will be no bill.

Is that important? Yes, it is. Why is it important? Because the chance of not being able to collect on extremely foreboding matters around this world will come to a halt, either because the PATRIOT Act terms have expired or because the companies will withdraw in disgust. In any event, the bill would be vetoed, as the vice chairman said.

So it would be the end of the bill. Therefore, I oppose this amendment.

As I will say about each of these amendments--well, I just did--it undoes everything that has been done for the purpose of making a perfecting amendment to satisfy a particular need of a particular Senator. I also must oppose this amendment because there is no reason for delaying the liability protection provisions. There is not a sufficient reason. It is true the Select Committee struggled to get access to details about the President's surveillance program for many months, but in the end we succeeded. We went from maybe eight, more likely four, sometimes six, to all four committees in the House and the Senate, Judiciary and Intelligence. We heard the necessary testimony. We went to the EOP. We read all the documents, and our chiefs of staff were allowed to do the same thing. We read the legal reasoning used to justify within the executive branch and the role of the private sector. We did all of that, not only our committee but also the House Intelligence Committee, and both Judiciary Committees spent considerable time looking at this issue. I am satisfied we have a basis for taking action now.

On national security grounds, we have to, in my judgment. We haven't talked about that today. We have talked about refined points of constitutional niceties and all the rest of it. I don't denigrate that, but there is something called the protection of the Nation. I take that very seriously. I take that very, very seriously. So a form of liability protection has passed the Senate and the House of Representatives a total of three times, once in the Senate and twice in the House. We should not now reverse these actions by passing the provisions of suspension.

Let me be clear. I strongly support the requirement in this bill for a comprehensive review of the President's surveillance program by the inspectors general. They will be very tough and very thorough and embarrass a lot of people. A report on their general review is one of the best ways to inform the American people about the facts. Litigation is an imperfect mechanism to bring facts to the public, rather a terrible mechanism, because of something called the State secrets privilege which is involved, which means the people can't know anything, that a lot of people dealing with the court can't know anything, that the companies can't know anything. It is a closedown. People have to understand that. It is not an open court. You are not getting a traffic ticket. It is a highly complex, nuanced matter which is rigidly guarded by rules. You could argue the rules, but there they are. Unfortunately, if this amendment passes, the fact that litigation is still pending may have the effect of limiting the amount of information that will be released to the public in the report of the inspectors general, the opposite of what the distinguished Senator wants. Certain facts that might be releasable if the litigation were resolved might be held back, if the Government anticipated a continuing need to assert the State secrets privilege in litigation, which it would.

It is also important to note that this amendment, if it were to pass, the liability protection provisions that the Senator is trying to get at would not go away. In other words, if his amendment passed and we took this long delay, nothing would affect the progress of the liability legislation and that possibility. So it is an amendment which doesn't accomplish anything. The provisions would still go into effect after 90 days, unless new legislation is passed. Let's hope that doesn't happen. The new Congress, thus, might be launched into a contentious debate next summer, instead of working with the new President on a new agenda. That is the point of the Cardin amendment, that the date was changed to December 2012, so that the next President, whoever it might be--it is very close--will have a chance to review and perhaps act upon what we have done here in the next term, which is good. I urge defeat of the amendment.

I have one more thing to say, with the indulgence of my colleague. The senior Senator from Pennsylvania and I were engaged in earlier debate over the access Senators have had, both with myself and with the vice chairman, to the Government letter sent to the telecommunications companies requesting their cooperation during the period of 9/11 to January of 2007. The Senator from Pennsylvania lamented the fact that these documents were kept to only the members of the Intelligence and Judiciary Committees and not shared with the full Senate.

I share the view of the Senator that these documents should be viewed by all Senators, and I have advocated this very position to senior officials of the Bush administration for many months. But recognizing the administration's unwillingness to extend this access, the Senate Intelligence Committee did the next best thing. We were able to get declassified the relevant facts upon which the committee and, ultimately, the full Senate reached the judgment that a narrowly drawn immunity bill remedy might be appropriate.

For the record, our committee report, 110-209, accompanying S. 2248, the FISA amendments----

I ask unanimous consent for 1 additional minute.

And dated October 26, 2007, includes a lengthy declassified explanation of the committee's review and conclusions as well as a description of the representations made by the Government in the letters sent to the companies during the period of time covered by the bill. So for the past 8 months, this public report has been available not only to all Senators--here it is, I have labeled it, pages 8 through 12, right here--but to the general public as well.

I ask unanimous consent that that portion be printed in the Record.

I hope very much that the Senator's amendment will be defeated. I thank the Chair.

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

Mr. President, with the goodwill of the vice chairman, he has granted me a couple of moments to enter a couple documents in the Record. We have had several good days of debate or good hours of debate on the FISA bill going back to before the recess. I guess that would be several months. In the course of a discussion of a bill as lengthy and complex as this, several arguments have been made that warrant response, but there isn't always time to give the response. In the interest of establishing an accurate legislative history to accompany the bill, as manager of the bill, I ask unanimous consent to print in the Record a statement providing such clarifications and corrections.

I also point out, there was an op-ed piece in support of the FISA bill in today's New York Times which I call to the attention of my colleagues. It was written by Mr. Morton Halperin and entitled ``Listening to Compromise.'' Mr. Halperin, in addition to being executive director of the Open Society Policy Center, has a lengthy career of public service in both Democratic and Republican administrations.

Mr. President, I ask unanimous consent to have printed in the Record Mr. Halperin's op-ed in support of the bill as it appeared in today's New York Times.

Mr. President, I thank the Presiding Officer and yield the floor.

I yield as much time as the Senator requires.

Madam President, Senator Specter has offered an amendment altering the liability protections of title II. His amendment would require the district court to assess the constitutionality of the President's warrantless wiretapping program before it could dismiss cases against telecommunications companies that met statutory requirements for liability protection.

Although I appreciate the Senator's desire to ask the court to address the constitutionality of the President's program once and for all, he has picked the wrong mechanism to ask the court to answer his question.

First, Senator Specter's amendment would completely undermine, as I said before, the delicate compromise in front of us today. People say: Well, we are freshly back in town, newly minted, widely open. I am sorry, this was a bill which just got through on a thread, and it will probably get close to 70 votes, a compromise already accepted by the House with 70 percent of their votes, and I think that balances the protection of liberties and also does something I have stated I think is rather important; that is, it allows the collection of intelligence to continue in order to protect the United States of America.

Senator Specter's amendment also would require the court to consider a difficult constitutional question that otherwise would not be at issue in the cases.

Title II does not cover cases against Government actors. This exclusion was intentional. Cases against the Government for any unlawful or unconstitutional actions Government actors may have undertaken should be allowed to proceed. Arguments over the constitutionality of the President's actions can and should be litigated in those proceedings.

The amendment, however, injects this complicated constitutional question about the interplay of the fourth amendment and separation of powers into cases requesting civil damages from private companies. The amendment does not require that there be a relationship between the companies and this constitutional question. It does not ask whether the companies were aware of the scope of the President's program, nor does it ask whether the companies' actions were done in good faith or even whether they were legal. Indeed, if the court finds that the President's program violated the Constitution, the cases against the company will not be dismissed even if that company had no involvement in the unconstitutional components of the President's program.

Madam President, this is simply unfair. A company should not be subjected to liability solely because the Government acted unconstitutionally. A company should not be subjected to liability solely because the Government acted unconstitutionally. Any accountability and liability should be based on actions of the company, which is what title II is about.

Imposing this barrier to liability protection is also inconsistent with our expectation about the role companies are expected to play when they receive Government requests for information. Our existing statutory approach is based on the idea that the Government requires prompt cooperation from the telecommunications companies. Although we expect those companies to seek documentation from the highest levels of Government, they are not expected to assess the constitutionality of particular requests on which they lack, to say the least, complete information.

The ongoing litigation is complicated by classified information issues that make it virtually impossible for the cases to move forward. But if the cases could proceed without regard to the classified information at issue, the court would not consider the question of whether the President's program was constitutional. Instead, it would ask whether the companies were entitled to immunity based on existing law.

In addition, a case against any particular company is necessarily limited to the facts relevant to that company. The court would, therefore, not be provided a comprehensive look at the President's program in any of those cases.

We should not ask the district court to assess whether the President's program is constitutional when the answer to that question is unnecessary to resolve the underlying litigation between the plaintiffs and the carriers, and the court does not have sufficient facts to address that far-reaching question of constitutionality. We are talking about apples and oranges, but it is apples here that we are concerned with.

I urge my colleagues to oppose this amendment.

May I respond to the Senator's observation?

I would say to my distinguished friend from Pennsylvania that Judge Walker's case is not, under any circumstance, going to be stopped by whatever happens here. It will not happen, and it will, therefore, continue. The bill only addresses cases against carriers, is the point I was trying to make. Judge Walker--his case is a case against the Government. This bill is not against the Government. It is against what happens to the carriers, or in this particular case whether they get liability. The Government is not the point. The carriers are the point. The case continues, and we have not intervened in a malicious or malevolent way.

That is quite an assumption to make, I say to the Senator.

I will just reply very briefly with three points, and when you are finished, I would like to yield to--or hopefully the vice chairman will yield to the senior Senator from Virginia.

The one point is that this is not a bill we are addressing here about the Government. We are doing it about carriers, and particularly in title II.

Secondly, I am interested in what the ranking member of the Judiciary Committee feels might be the result if we went the Judge Walker route regardless of its inapplicability, in my view, to this situation when it went through the appeal process.

I am not a lawyer. Right now I wish I were, but I am not. Usually, I am glad I am not. But it seems to me that you would be looking at a period of appeals going right on up to the Supreme Court that might last 3 or 4 years. I am not experienced in how long these things take. But this is a matter that might take that kind of time and that causes me to raise again the question I have raised several times with the vice chairman this afternoon: The only thing that we appear to be discussing in the Senate is rights and liberties. I think I have yet to hear almost any word about the security of the Nation and what the purpose of the Intelligence Committee is, what the purpose of intelligence is, what the purpose of collection is, how the collection is done, who does it, how important is it to how we gauge our situation in the world, where we need to deploy, where we need to be watching.

This is extraordinarily serious stuff but not a word does it get in the Senate, which is two-thirds made up of lawyers--and I honor every one of them. But we are picking at ``would the Constitution allow'' this or that. I am looking at something which to me is very clear. This is all about carriers, this particular bill. My name isn't Judge Walker. I haven't issued the opinion. If my name were Judge Walker, and it was an opinion, it would be about constitutionality. We are not addressing that in this bill.

The Senator earlier said: Look, we are here. Why not duke it out and get all the substitutes and arrangements and compromises back on the table again. I know that does work in some fashion. But I think the vice chairman and I and our staffs could say that what was achieved over the last month or so could probably never be achieved again, which is to get the House to agree. John Conyers is chairman of the Judiciary Committee, who was gracious and polite but unfriendly to this bill. There is the question of the Blue Dogs. You can say always these are questions--on farm bills, on steel bills, on automobile bills, on whatever bills.

This is a particular type of emergency based upon the fact that we are still, under my definition, under attack. Not that we have not been attacked, but we have been able to interdict, because of intelligence, some of those attacks--or all of those attacks. This is a very different matter than running an ordinary piece of legislation through the Senate.

If 20 or whatever Judiciary plus Intelligence is in the Senate--35, whatever that is. No, because there are some cross-memberships. Let's say 20. Understand, the others have not been read in. I have said they could have found out the information that has been available for a full year. Any Senator has the ability to go and read intelligence, if they wish to do that. It sort of implies that the Senate, as a matter of habit, comes to full agreement and full understanding that 80 out of 100, as opposed to 20 or 25 out of a 100, fully understand what is at stake in the amendments to a bill and then to the final passage of a bill.

I think the Senator knows that is not the way it works. I think the Senator, although he says we should not delegate, knows we delegate all the time.

I will. That takes various forms. Sometimes it will be that I am very much on the edge of how I am going to vote on something, and I go to a particular Senator--it might be the Senator from Pennsylvania--and say: I have this feeling and I have that feeling, I am right on the cusp of which way I should vote.

I wasn't talking about special expertise--I was talking about: We have not talked about the threat.

Yes.

My point.

If the Senator from Rhode Island would give me 30 seconds, I would be grateful.

The fact of the matter, I say to the senior Senator from Pennsylvania, is that there are 37 Members of the Senate who have been briefed on this matter--not 20 but 37. We decided to do a little bit of homework: Fifteen on the Senate Intelligence Committee, 19 on the Senate Judiciary Committee, that is 34--minus 4 crossover members; 2 leadership on each side, Senator Roberts and the Appropriations Committee chairman and, I suspect, vice chairman, plus Senator Levin and Senator McCain, who are ex officio.

That is not bad.

Mr. President, I would like to speak for a little while about one part of the bill, and I will have more to say tomorrow. I strongly oppose the blanket grant of immunity that is contained in this bill. I would hope Senators would reject what is an ill-advised legislative effort to engineer specific outcomes in ongoing Federal judicial proceedings. Basically, we are telling another branch of Government: Here is the way you have to come out in your decisions.

There is a way to cure that problem. Instead of the Congress telling the courts how they have to rule, we could adopt the Dodd-Feingold- Leahy amendment to strike title II from the bill. This would strike the retroactive immunity provisions, and it would allow for accountability for those who violated Americans' rights and violated the law. It would send a strong message that no one stands above the law in the United States.

I am not out to get the telephone companies. I just want us to know who it was in the administration who said: You may break the law. The American people ought to know who in the White House said, ``You may break the law,'' who it was who made the decision that somehow this President stands above the law.

The administration circumvented the law by conducting warrantless surveillance of Americans for more than 5 years. They were breaking the law, and then they got caught. The press reported this illegal conduct in late 2005. The Republican-controlled Congress did not ask the questions to find it out. The press found it out. Had they not done so, I have to assume this unlawful surveillance would still be going on today.

When the public found out that the Government had been spying on the American people outside of FISA for years, the Government and the providers were sued by citizens who believed their privacy rights were violated. They said: You are violating our privacy. We want you to be held accountable. But, of course, that is why the Founders created a system of Federal courts through the Constitution--so people can assert their rights before a fair and neutral tribunal without interference from the other branches of Government, so they have some way to say: I am not a Democrat. I am not a Republican. I am not rich. I am not poor. I am an American. I am seeking to have my rights upheld.

Title II of this bill would effectively terminate these lawsuits and those rights. It seeks to reduce the role of the court to a rubber stamp. So long as the Attorney General certifies that the Government requested the surveillance and indicated that it had been ``determined to be lawful,'' the cases will be dismissed and everybody is off the hook. It is not the court that says whether you followed the law. No, this bill allows the government to say: Oh, you are looking at us? Ah, we certify we followed the law. So, therefore, you courts have to let us off the hook because, after all, we said, whether we broke the law or not, we are following the law, so we are home free.

That is not a meaningful judicial inquiry. Thinking back to my days as a prosecutor in Vermont, that would be as if the police caught someone in a burglary, I charged them, and the defendant then told the judge: But I have determined that for me, your Honor, the burglary laws do not apply, so you have to let me go. I can't be prosecuted. I can't be held accountable. Nobody would take that seriously. We should not take this seriously. We should not do something that does not give the plaintiffs their day in court. It is not just a heavy thumb on the scales of justice; it is a whole hand and an arm on the scales of justice, and I cannot support it.

If we look at the publicly available information about the President's program, it becomes clear that title II is designed to tank these lawsuits, pure and simple, but then to allow the administration to avoid any accountability for their actions. The Senate Intelligence Committee said in a report last fall that the providers received letters from the Attorney General stating that the activities had been ``authorized by the President'' and ``determined to be lawful.''

Guess what. These are precisely the ``magic'' words that will retroactively immunize the providers under title II of this bill. Mr. President, the fix is in. The bill is rigged, based on what we already know, to ensure that the providers get immunity and the cases get dismissed.

What it says is, if you are in charge, you can just go out and break the law, and then when they look at you, send a letter to the court saying: I have determined that when I broke the law, I did not really break the law, so you have to let me off the hook.

Lewis Carroll once wrote a book about that. I think it was called ``Alice in Wonderland.'' So what if Americans' rights were violated. So what if statutes were violated. So what if those privacy-protecting statutes provide for damages. This bill makes our courts the handmaidens to a coverup, and it is wrong. It tells the courts--the U.S. Federal courts--it tells them: Take part in a coverup. I cannot support something that does that. It is wrong.

Make no mistake, if title II becomes law, there will be no accountability for this administration's actions in a court of law. We would take away the only viable avenue for Americans to seek redress for harms to their privacy and liberties.

Those who claim that American citizens can still pursue their privacy claims against the Government know that sovereign immunity is a roadblock. They know that cases against the Government have already been dismissed for lack of standing. They know about the Government's ability to assert the state secrets doctrine and various other legal defenses and protections for Government officials. They know these suits will go nowhere. They know, and it is wrong for them to suggest otherwise. This is a red herring if there ever was one.

The report of the Select Committee on Intelligence in connection with its earlier version of the bill that also included retroactive immunity is telling. The Select Committee on Intelligence wrote:

The Committee does not intend for this section to apply to,

or in any way affect, pending or future suits against the

Government as to the legality of the President's program.

And later wrote:

Section 202 makes no assessment about the legality of the

President's program.

But neither that bill nor this one makes any allowance for such suits against the Government to proceed to a decision on its merits. That is precisely what is lacking in this measure: an avenue to obtain judicial review and accountability.

Now, those who support retroactive immunity for the telecommunications carriers and dismissal of the suits against them without providing an effective avenue to challenge the program or obtain judicial review of its legality--well, what they are doing is supporting unaccountability, pure and simple. They are saying: Everybody is off the hook. I am not out to get the telephone companies. All I want to know is, who in our Government said: You may break the law. And this bill is going to make sure we never find out.

In fact, the case that did proceed to decision in the Federal court in Michigan was appealed by the Government, was vacated and dismissed for lack of ``standing.'' So the judicial decision on the merits that the President's program of warrantless wiretapping of Americans was a violation of law and the Constitution was effectively wiped from the books.

I note again that the proponents of this retroactive immunity have not and cannot say that the administration acted lawfully. They do not say the administration acted lawfully because they know the administration did not act lawfully.

Even if one believes the telephone companies merit protection, there is simply no good reason why Congress must act now to deal with the issue of the ongoing lawsuits against providers. The claim that these lawsuits will somehow ``bankrupt'' the providers is belied by the record demonstrating the financial health of these companies today despite the ongoing litigation.

Even the most alarmist critics of the lawsuits acknowledge it would be years

and probably at least two trips to the U.S. Supreme Court before we have any enforceable final judgments.

If there is such a risk, well, what does that say? It says there were violations and that people's rights were violated. Now, I have said before that I would support the Government stepping into the shoes of these defendants, of these telephone companies, if we want to protect them. It is simple. If you are that concerned about the telephone companies, exclude them. Substitute the U.S. Government. But we should not protect them if the cost of protecting them is all accountability and the cost of never getting a judicial determination on the merits of the cases whether the Government violated the law.

Americans have a right to know.

Mr. President, I ask unanimous consent for an additional 30 seconds.

I believe the rule of law is important. I trust our courts to handle even the most difficult and sensitive disputes. That is the courts' role in our constitutional scheme, not ours. Title II of this bill would have Congress decide these cases by legislative fiat.

We do not want to diminish our Federal judiciary and risk selling out large numbers of Americans whose fundamental rights may have been violated. We should not pass this bill unamended. I urge my colleagues to cast a vote for accountability and support the Dodd-Feingold-Leahy amendment.

I strongly oppose the immunity provisions contained in this bill, and I have supported every effort to strike them. But if we cannot eliminate these ill-advised provisions, then I agree that Senator Bingaman's amendment to delay a decision on immunity until after the inspectors general have conducted their review of the warrantless surveillance program makes good sense.

I worked hard to include the inspectors general amendment as a part of this FISA bill. For that provision to have its full effect, we should delay any grant of retroactive immunity until we know what the final report says.

Senator Bingaman's amendment would stay all pending cases against the telecom companies related to the warrantless surveillance program and delay the effective date of the immunity provisions in title II of the bill until 90 days after Congress receives the inspectors general reports.

I have maintained throughout this debate that it makes little sense for Senators--many who have never been given the opportunity to view key documents relevant to the warrantless surveillance program--to cast an uninformed vote on retroactive immunity. That is buying a pig in a poke. To mix farm metaphors, the Bingaman amendment puts the horse back in front of the cart.

First, let's get the facts. And then, only after reviewing the relevant facts that the administration claims support granting retroactive immunity, determine whether Congress should attempt to legislatively determine the result of the 40 or so Federal cases alleging violations of fundamental rights of Americans.

Again, I believe the retroactive immunity provisions in this bill should be stripped entirely. But if that cannot be accomplished, then I support Senator Bingaman's amendment as a commonsense way to ensure that the Senate makes a fully informed decision on retroactive immunity.

I yield the floor.

Mr. President, I strongly oppose a blanket grant of immunity. I also urge Senators to reject this ill-advised legislative effort to engineer a specific outcome in ongoing Federal judicial proceedings. No one should stand above the law in the United States.

The administration circumvented the law by conducting warrantless surveillance of Americans for more than 5 years. They got caught. The press reported this illegal conduct in late 2005. Had the media not done so, this unlawful surveillance may still be going on today.

When the public found out that the Government had been spying on the American people outside of FISA for years, the Government and the providers were sued by citizens who believed that their privacy rights were violated. That is why we have Federal courts--so people can vindicate their rights before a fair and neutral tribunal, without interference from the other branches of government.

Title II of this bill is apparently designed to terminate these lawsuits. It seems to reduce the role of the court to a rubber stamp. So long as the Attorney General will certify that the Government requested the surveillance and indicated that it had been ``determined to be lawful,'' the cases are to be dismissed and everybody is off the hook. That is not a meaningful judicial inquiry. That doesn't give the plaintiffs their day in court. It is not just a heavy thumb but a whole hand and arm on the scales of justice, and I cannot support it.

Here is what the report of the Select Committee on Intelligence said in connection with reporting its earlier version of retroactive immunity:

The Committee has reviewed all of the relevant

correspondence. The letters were provided to electronic

communications service providers at regular intervals. All of

the letters stated that the activities had been authorized by

the President. All of the letters also stated that the

activities had been determined to be lawful by the Attorney

General, except for one letter that covered a period of less

than sixty days. That letter, which like all the others

stated that the activities had been authorized by the

President, stated that the activities had been determined to

be lawful by the Counsel to the President.

So if anyone had any doubt where the criteria in the bill come from, there it is. Do those words seem familiar? Do the criteria carefully worded for inclusion in the bill now make sense?

I expect that the American people remember the testimony before the Judiciary Committee of James Comey and FBI Director Mueller about the period of time when Attorney General Ashcroft was in the hospital, senior advisers at the Justice Department had advised against extending approval for the warrantless wiretapping program and the Counsel to the President, Alberto Gonzales, went to John Ashcroft's hospital room seeking to get Attorney General Ashcroft to override the acting Attorney General's concerns. Some time thereafter, the program was apparently adjusted in some way, but only after FBI Director Mueller spoke to the President and several high-ranking officers threatened to quit the administration. That period could account for the Select Committee on Intelligence's reference to a letter and period of less than 60 days when it was the Counsel to the President who had ``determined'' the activities ``to be lawful.''

Senator Specter has long said that he supported judicial review of the legality of the President's warrantless wiretapping program. During the last Congress, when he chaired the Judiciary Committee, he introduced a bill that would have allowed the courts to review the legality of the administration's warrantless surveillance program. Unfortunately, he later modified the bill in his discussions with the White House that made it unacceptable and ineffective in my view and it was never passed. I have always supported allowing the courts the opportunity to review the legality of those activities.

I believe that independent judicial review will reject the administration's claims to authority from the Authorization for the Use of Military Force that overrides FISA. I believe that the President's claim to an inherent power, a Commander-in-Chief override, derived somewhere from the interstices or penumbra of the Constitution's article II will not prevail over the express provisions of FISA.

Indeed, Chairman Rockefeller seemed to concede as much this morning when he asserted that nothing in his bill should be taken to mean ``that Congress believes that the President's program was legal.'' He characterized the administration as having made ``very strained arguments to circumvent existing law in carrying out the President's warrantless surveillance program.'' At various points Senator Rockefeller alluded to the administration's argument that the Authorization for the Use of Military Force was some sort of statutory override authority and the administration's claim that the President has what Senator Rockefeller called ``his all-purpose powers,'' which I understand to be the administration's argument that inherent authority from article II of the Constitution creates a Commander-in-Chief override, and said that these are not justifications for having circumvented FISA.

Consistent with Justice Jackson's now well-accepted analysis in the Youngstown Sheet & Tube case, when the President seeks to act in an area in which Congress has acted and exercised its authority, the President's power is at its ``lowest ebb.'' So I believe that the President's program of warrantless wiretapping contrary to and in circumvention of FISA will not be upheld based on his claim of some overriding article II power. I do not believe the President is above the law.

What is most revealing is that the administration has worked so feverishly to subvert any such independent judicial review. That sends a strong signal that the administration has no confidence in its supposed legal analysis or its purported claims to legal authority. If it were confident, the administration would not be raising all manner of technical legal defenses but would work with Congress and the courts to allow a legal test of its contentions and the legality or illegality of its actions.

This amendment now offered by Senator Specter is more limited than I would have liked. It says its purpose is to allow the courts to review the constitutionality of the assistance provided by the electronic communication services in connection with the program. Exactly how the courts get to such a review is not clear. Although I do not believe that this expressly allows the court to conduct the kind of comprehensive judicial review required to make a real determination about the legality of this program, and a fair decision about the merit of these lawsuits, it nevertheless seeks in spirit to provide judicial review. In the hope that it might provide an avenue to accountability for the illegal actions of this administration, I will support it.

In so doing I should note that I do not believe that Congress can take away the authority of the Federal courts to consider unconstitutionality or illegality in the course of meaningful judicial review. Senator Rockefeller emphasized this morning that the parties to the ongoing cases are to be ensured ``their day in court'' and that they are ``provided the opportunity to brief the legal and constitutional issues before the court.'' These statements do not have meaning unless the legal issues and constitutional issues presented by these cases can be considered. The value of the Specter amendment lies in making the issue of constitutionality explicit.