FISA Amendments Act Reauthorization Act of 2012

Mr. President, I thank Leader Reid for the honor of being able to open this morning's debate. I also wish to particularly identify with a point the leader made. There is an old saying that most of life is just showing up. I think what the American people want--I heard this at checkout lines in our local stores, for example, this week--they want everybody back in Washington and going to work on this issue, just as the leader suggested.

I think Senators know I am a charter member of what I guess you could call the optimist caucus in the Senate. As improbable as some of these talking heads say on TV that it is, I still think we ought to be here, just as the leader said, working on this issue because of the consequences.

I would be happy to yield to the majority leader.

I do. The leader is being logical, and Heaven forbid that sometimes logic break out on some of these matters. I remember when we started out--and I joked that I had a full head of hair and rugged good looks--the majority leader and I used to work with people on both sides of the aisle. We would try to show up early, go home late, and, as the leader said, focus on getting some results. I thank the leader for his point and again for the honor of being able to start this discussion.

As I indicated, what I heard at home is that we are supposed to be here and try to find some common ground. I know the talking heads on TV say this is impossible and it cannot be done. First of all, as the majority leader said, this has been done in the past. When there are big issues and big challenges, historically the Congress will come together and deal with it.

I am particularly concerned about some of the effects going over the cliff will have on vulnerable senior citizens. As the Presiding Officer knows, that is my background. We have often talked about health care and seniors. My background was serving as codirector of the Oregon Gray Panthers. If the reimbursement system for Medicare, in

effect, goes over this cliff, that is going to reduce access to health care for senior citizens across the country, and I don't believe there are Democrats and Republicans who want that to happen.

As the majority leader indicated, finding some common ground on this issue and backing our country away from the fiscal cliff is hugely important and crucial to the well-being of our country. I just wanted to start with those remarks.

Also crucial to our country is the legislation before the Senate right now. Its name is a real mouthful.

Mr. President, I think you will recall this legislation from your days serving on the Senate Select Committee on Intelligence. The name of this is the Foreign Intelligence Surveillance Act Amendments Act. It also expires in a few days. Our job is to find a way to strike the best possible balance between protecting our country from threats from overseas and safeguarding the individual liberties of the law-abiding Americans we have cherished in this country for literally hundreds of years. This task of balancing security and liberty was one of the most important tasks defined by the Founding Fathers years and years ago, and it is no less important for the Congress today.

As I indicated earlier, the majority leader, Leader Reid, has accorded me the honor of beginning this debate. I will open with a very short explanation of what the FISA Amendments Act is all about. Of course, this is an extension of the law that was passed in 2008. It is a major surveillance law, and it is the successor to the warrantless wiretapping program that operated under the Bush administration, which gave the government new authorities to collect the communications of foreigners outside the United States. The bill before the Senate today would extend this law for another 5 years.

There is going to be a discussion of various issues, but all of them go to what I call the constitutional teeter-totter, which is basically balancing security, protecting our country at a dangerous time, and the individual liberties that are so important to all of us. I expect there will be amendments to strengthen protections for the privacy of law- abiding Americans.

I want to say to my colleagues and those who are listening that this is likely to be the only floor debate the Senate has on this law encompassing literally a 9-year period--from 2008 to 2017. So if we are talking about surveillance authority that essentially looks to a 9-year period, we ought to have an important discussion about it, and that is why I am grateful to the majority leader for making today's discussion possible.

I have served on the Senate Intelligence Committee for 12 years now, and I can tell every Member of this body that those who work in the intelligence community are hard-working and patriotic men and women. They give up an awful lot of evenings, weekends, and vacations to try to protect the well-being and security of our country. For example, we hear a lot about a well-publicized event, such as their enormously valuable role in apprehending bin Laden. What we don't hear about is the incredible work they do day in and day out. They work hard to gather intelligence, and I commend them for it as we begin this discussion.

The job of those who work in the intelligence community is to follow whatever laws Congress lays down as those hard-working men and women collect intelligence. Our job here in the Congress is to make sure the laws we pass are in line with the vision of the Founding Fathers, which was to protect national security as well as the rights of individual Americans.

We all remember the wonderful comment by Ben Franklin. I will paraphrase it, but essentially Ben Franklin said: If you give up your liberty to have security, you really don't deserve either. We owe it to the hard-working men and women in the intelligence community to work closely with them. We need to find the balance Ben Franklin was talking about, and we can help them by conducting robust oversight over the work that is being done there so members of the public can have confidence in the men and women of the intelligence community. This will give the public the confidence to know that as we protect our security at a dangerous time, we are also protecting the individual liberties of our people.

The story with respect to this debate really begins in early America when the colonists were famously subjected to a lot of taxes by the British Government. The American colonists thought this was unfair because they were not represented in the British Parliament. They argued that if they were not allowed to vote for their own government, then they should not have to pay taxes.

We all remember the renowned rallying cry of the colonists. It was ``no taxation without representation.'' Early revolutionaries engaged in protests against these taxes all over the country. Of course, the most famous of these protests was the Boston Tea Party in which colonists threw shiploads of tea into the Boston Harbor in protest of the tax on tea.

As we recall from our history books, there were a lot of taxes on items such as tea, sugar, paint, and paper. Because so many colonists believed these taxes were unjust, there was a lot of smuggling going on in the American Colonies. People would import things, such as sugar, and simply avoid paying the tax on them.

We all remember that the King of England didn't like this very much. He wanted the colonists to pay taxes whether they were allowed to vote or not. So the English authority began issuing what were essentially general warrants. They were called writs of assistance, and they authorized government officials to enter into any house or building they wanted in order to search for smuggled goods. These officials were not limited to only searching in certain houses, and they were not required to show any evidence that the place they were searching had any smuggled goods in it. Basically, government officials were allowed to say they were looking for smuggled goods and then would search any house they were interested in to see if the house had some of those smuggled goods.

An English authority's goal is to find smuggled goods. Letting constables and customs officers search any house or building is a pretty effective way to go out and find something. If they keep searching enough houses, eventually they will find some smuggled goods in one of them and seize those goods and arrest whoever lives in that house for smuggling. Of course, the problem is that if government officials can search any house they want, they are going to search through the houses of a lot of people who have not broken any laws.

Mr. President, it is almost as if you decided you were going to search everybody in your State of Rhode Island. You could go in and turn them all upside down, shake them, and see if anything fell out. Obviously, you would find some people who had some things in their possession that they should not have, but that is not the way we do it in America. In America, there has to be probable cause in order to do something like that.

The American colonists had a huge problem with the idea that everybody's house was going to be checked for smuggled goods on the prospect that maybe somebody somewhere had engaged in smuggling. The colonists said it is not OK to go around invading people's privacy unless there is some specific evidence that they have done something wrong. That is how people in Rhode Island and Oregon feel today. One cannot just go out and check everybody in sight on the prospect that maybe there is someone who has done something wrong.

Back in the colonists' time, the law said that these writs of assistance were good until the King died. So when King George II died and the authorities had to get new writs, many colonists tried to challenge them in court.

In Boston, James Otis denounced this mass invasion of privacy by reminding the court that--and we remember this wonderful comment--a man's house is his castle. Mr. Otis described the writs of assistance as the power that places the liberty of every man in the hands of every petty officer. Unfortunately, the court ruled that these general orders permitting mass searches without individual suspicion were legal, and English authorities continued to use them. The fact that English officials went around invading people's privacy without any specific evidence against them was one of the fundamental complaints the American colonists had against the British Government. So naturally our Founding Fathers, with

the wisdom they showed on so many matters, made it clear they wanted to address this particular complaint when they wrote the Bill of Rights.

The Bill of Rights ensures that strong protections of individual freedom would be included within our Constitution itself, and the Founding Fathers included strong protections for personal privacy in the fourth amendment. The fourth amendment states:

The right of the people to be secure in their persons,

houses, papers, and effects against unreasonable searches and

seizures shall not be violated and no warrant shall issue but

upon probable cause, supported by oath or affirmation, and

particularly describing the place to be searched and the

person or things to be searched.

This was a direct rejection of the authority the British had claimed to have when they ruled the American Colonies.

The Founding Fathers said our government does not have the right to search any house that government officials want to search even if it helps them to do their job. Government officials may only search someone's house if they have evidence that someone is breaking the law and they show the evidence to a judge to get an individual warrant.

For more than 200 years, this fundamental principle has protected Americans' privacy while still allowing our government to enforce the law and to protect public safety.

As time passed and we entered the 20th century, advances in technology--a whole host of technologies--gave government officials the power to invade individual privacy in a whole host of new ways--new ways the Founding Fathers never dreamed of--and all through those days, the Congress and the courts struggled to keep up.

Time and time again Congress and the courts were most successful when they returned to the fundamental principles of the fourth amendment. It is striking. If we look at a lot of the debates we are having today about the Internet--and the Presiding Officer has a great interest in this; we have talked often about it--certainly the Founding Fathers could never have envisioned tweeting and Twitter and the Internet and all of these extraordinary technologies. But what we have seen as technology has continued to bring us this treasure trove of information with all of these spectacular opportunities the Founding Fathers never envisioned is that time and time again the Congress and the courts were most successful when they returned to the fundamental principles of the fourth amendment.

For example, in 1928 the Supreme Court considered a famous case about whether the fourth amendment made it illegal for the government to listen to an individual's phone conversations without a warrant. Once again, dating almost to the precedent about the colonists and smuggling, the 1928 case was about smuggling--specifically, bootlegging. The government argued then that as long as it did the wiretapping remotely without entering an individual's house, the fourth amendment would not apply.

Now, Justice Louis Brandeis wrote what has come to be seen in history as an extraordinary dissent, a brilliant dissent, and he argued that this was all wrong; that the fourth amendment was about preventing the government from invading Americans' privacy regardless of how the government did it.

I am just going to spend a couple of minutes making sure people see how brilliant and farsighted Justice Brandeis was in how his principles--the principles he talked about in 1928--are as valid now as they were then.

Justice Brandeis said:

When the Fourth and Fifth Amendments were adopted . . .

force and violence were then the only means known to man by

which a Government could directly effect self-incrimination.

. . . Subtler and more far-reaching means of invading privacy

have [in effect] now become available to the Government.

Discovery and invention have made it possible for the

Government . . . to obtain disclosure in court of what is

whispered in the closet.

Justice Brandeis goes on to say:

In the application of a Constitution, our contemplation

cannot be only of what has been but of what may be. The

progress of science in furnishing the Government with means

of espionage is not likely to stop with wiretapping. Ways may

someday be developed by which the Government, without

removing papers from secret drawers, can reproduce them in

court, and by which it will be enabled to expose to a jury

the most intimate occurrences of the home. ``That places the

liberty of every man in the hands of every petty officer''

was said by James Otis of much less intrusions than these.

Justice Brandeis goes on to say:

The principles--

The principles, literally--

[behind the Fourth Amendment] affect the very essence of

constitutional liberty and security. They . . . apply to all

invasions on the part of the Government and its employees of

the sanctities of a man's home and the privacies of life. It

is not the breaking of his doors, and the rummaging of his

drawers that constitutes the essence of the offense; but it

is the invasion of his indefeasible right of personal

security, personal liberty and private property, where the

right has never been forfeited by his conviction of some

public offense.

Justice Brandeis closes this remarkable dissent saying:

. . . The evil incident to invasion of the privacy of the

telephone is far greater than that involved with tampering

with the mails. . . . As a means of espionage, writs of

assistance and general warrants are but puny instruments of

tyranny and oppression when compared with wiretapping.

The protection guaranteed by the amendments Justice Brandeis was referring to--the fourth and fifth amendments--is broad in scope.

The makers of our Constitution undertook to secure

conditions favorable to the pursuit of happiness. They

recognized the significance of man's spiritual nature, of his

feelings, and of his intellect. They knew that only a part of

the pain, pleasure and satisfaction of life are to be

found in material things. They sought to protect Americans

and their beliefs, their thoughts, their emotions, and

their sensations. They conferred, as against the

Government, the right to be let alone--the most

comprehensive of rights, and the right most valued by

civilized men. To protect that right, every unjustifiable

intrusion by the Government on the privacy of the

individual, whatever the means employed, must be deemed a

violation of the Fourth Amendment.

Because I have outlined Justice Brandeis's dissent on several issues, I want to make sure those last two sentences are clear.

Justice Brandeis said that the right of the people to be left alone by their government is ``the most comprehensive of rights''--the most comprehensive of rights, said Justice Brandeis--and, he said, ``the right most valued by civilized men.'' And the Justice said that intrusions on individual privacy, ``whatever the means employed, must be deemed a violation of the Fourth Amendment.''

The reason I have outlined Justice Brandeis's views on this issue is that Justice Brandeis's views didn't prevail in 1928. Back in 1928 they thought they were dealing with high-tech surveillance. But suffice it to say that his views were eventually adopted by the full Supreme Court. That is why I believe it is so important that as we look to today's debate--really an opportunity to update the way in which that careful balance, the constitutional teeter-totter: security, well-being of all of us on this side and individual liberties on this side--it is so important to recognize what Justice Brandeis said about the value of getting it right when it comes to liberty, when it comes to individual freedom.

One of the reasons there are amendments being offered by Senators to this legislation at a time when we are dealing with these crucial issues about the fiscal cliff, the question of the budget, taxes, and, as I mentioned, senior citizens being able to see a doctor--those are crucial issues, but this legislation, the FISA Amendments Act, is also a crucial piece of legislation, and that is why Senators will be offering amendments in order to strike the best possible balance between security and liberty.

When the Foreign Intelligence Surveillance Act, which is often known as FISA--Senators and those listening will hear that discussion almost interchangeably; the abbreviated name is FISA--when it was written in 1978, Congress applied Justice Brandeis's principles to intelligence gathering. The Congress, when they wrote the original FISA legislation in 1978, really said that Justice Brandeis got it right with respect to how we ought to gather intelligence. So the original FISA statute stated that if the government wants to collect an American's communications for intelligence purposes, the government must go to a court, show evidence that the American is a terrorist or a spy, and get an individual

warrant. This upheld the same principle the Founding Fathers fought for in the revolution, it is the same principle enshrined in the Bill of Rights, and it said that government officials are not allowed to invade Americans' privacy unless they have specific evidence and an individual warrant.

After 9/11, the Bush administration decided it would seek additional surveillance authorities beyond what was in the original Foreign Intelligence Surveillance Act statute. To our great regret, instead of asking the Congress to change the law, the Bush administration developed a warrantless wiretapping program--let me repeat that, a warrantless wiretapping program--that operated in secret for a number of years. When this became public--as I have said on this floor before, these matters always do become public at some point--when it became clear that the Bush administration had developed this warrantless wiretapping program, there was a huge uproar across the land. I remember how angry many of my constituents were when they learned about the warrantless wiretapping program, and I and a lot of other Senators were very angry as well.

As has the Presiding Officer, I have been on the Intelligence Committee, and I have been a member for 12 years, but the first time I heard about the warrantless wiretapping program--the first time I heard about it--was when I read about it in the newspapers. It was in the New York Times before I, as a member of the Senate Select Committee on Intelligence, knew about it.

There was a very heated debate. Congress passed the FISA Amendments Act of 2008, and that was to replace the warrantless wiretapping program with new authorities for the government to collect the phone calls and e-mails of those believed to be foreigners outside the United States.

The centerpiece of the FISA Amendments Act is a provision that is now section 702 of the FISA statute. Section 702 is the provision that gave the government new authorities to collect the communications of people who are believed to be foreigners outside the United States. This was different than the original FISA statute. Unlike the traditional FISA authorities and unlike law enforcement wiretapping authorities, section 702 of the FISA Amendments Act does not involve obtaining individual warrants. Instead, it allows the government to get what is called a programmatic warrant. It lasts for an entire year and authorizes the government to collect a potentially large number of phone calls and e- mails, with no requirement that the senders or recipients be connected to terrorism, espionage--the threats we are concerned about.

If that sounds familiar, it certainly should. General warrants that allowed government officials to decide whose privacy to invade were the exact sort of abuse that the American colonists protested over and led the Founding Fathers to adopt the fourth amendment in the first place. For this reason, section 702 of the FISA law contains language that is specifically intended to limit the government's ability to use these new authorities to spy on Americans.

Let me emphasize that because that is crucial to this discussion and the amendments that will be offered. It is never OK--never OK--for government officials to use a general warrant to deliberately invade the privacy of a law-abiding American. It was not OK for constables and Customs officials to do it in colonial days, and it is not OK for the National Security Agency to do it today. So if the government is going to use general warrants to collect people's phone calls and e-mails, it is extremely important to ensure that this authority is only used against foreigners overseas and not against law-abiding Americans.

Despite what the Acting President pro tempore and the Senate may have heard, this law does not actually prohibit the government from collecting Americans' phone calls and e-mails without a warrant. The FISA Amendments Act states--and I wish to quote because there have been a lot of inaccuracies and misrepresentations on this--the FISA Amendments Act states that acquisitions made under section 702 may not ``intentionally target'' a specific American and may not ``intentionally acquire'' communications that are ``known at the time of acquisition'' to be wholly domestic.

But the problem with that is, it still leaves a lot of room for circumstances under which Americans' phone calls and e-mails--including purely domestic phone calls and e-mails--could be swept up and reviewed without a warrant. This can happen if the government did not know someone is American or if the government made a technical error or if the American was talking to a foreigner, even if that conversation was entirely legitimate.

I am not talking about some hypothetical situation. The FISA Court, in response to a concern I and others have had, has already ruled at least once that collection carried out by the government under the FISA Amendments Act violated the fourth amendment to the Constitution. Senate rules regarding classified information prevent me from discussing the details of that ruling or how many Americans were affected, over what period of time, but this fact alone clearly demonstrates the impact of this law on Americans' privacy has been real and it is not hypothetical.

When the Congress passed the FISA Amendments Act 4 years ago, it included an expiration date. The point of the expiration date was to ensure that Congress could review these authorities closely and the Congress could decide whether protections for Americans' privacy are adequate or whether they need to be modified.

Again, go back to what I have described as the constitutional teeter- totter--our job: balance the need of the government to collect information, particularly with respect to what can be threats coming from overseas, with the right of individual Americans to be left alone. It is that balance we are discussing. If the Congress finds it is unbalanced, the Congress has a responsibility to step up and figure out how to make the appropriate changes in the law to ensure that both security and privacy are being protected simultaneously.

Unfortunately, the Congress and the public--the American people--do not currently have enough information to adequately evaluate the impact of the law we are debating on Americans' privacy. There are a host of important issues about the law's impact that intelligence officials have simply refused to answer publicly.

I am going to now spend a few minutes outlining the big questions I believe Americans deserve answers to. Certainly, the Congress has to have answers to these questions in order to do our job--our job of doing robust oversight over this law and over intelligence, which, as I said a bit ago, is exactly what the hard-working men and women in the intelligence community need and deserve in order to do their job in a way that will generate confidence among the American people.

First, if we want to know what kind of impact this law has had on Americans' privacy, we probably want to know roughly how many phone calls and e-mails that are to and from Americans have been swept up by the government under this authority. Senator Mark Udall, our distinguished colleague from Colorado and a great addition to the Intelligence Committee--he and I began the task of trying to ferret out this information some time ago. Over a year and a half ago, Senator Mark Udall and I asked the Director of National Intelligence how many Americans have had their communications collected under this law; in effect, swept up by the government under these authorities.

The response was it is ``not reasonably possible to identify the number of people located in the United States whose communications may have been reviewed under the authority of the'' FISA Amendments Act. That is how the government responded to Senator Udall and me.

If you are a person who does not like the idea of government officials secretly reviewing your phone calls and e-mails, you probably do not find that answer particularly reassuring. But suffice it to say, the situation got worse from there.

In July of this year, I and a tripartisan group of 12 other Senators, including Senator Mark Udall, our colleague from Utah, Senator Mike Lee, Senator Durbin--I am pleased to be joined by Senator Merkley, who has been vital in this coalition, this

tripartisan coalition to get the best possible balance between security and liberty--he was a signer of the letter; Senator Paul of Kentucky, who has also been an outspoken advocate of striking a better balance between privacy and liberty was a signer; Senator Coons, Senator Begich, Senator Bingaman, Senator Tester, Senator Sanders, Senator Tom Udall, Senator Cantwell--all of us joined in writing another letter to the Director of National Intelligence asking additional questions about the impact of this law on Americans' privacy.

We asked the Director if he could give us even a rough estimate--just a rough estimate--in other words, there has been discussion both in the press and in the intelligence community: This group of Senators is asking for something impossible. This group of Senators is asking for an exact count of how many Americans are being swept up under this FISA authority, their calls and e-mails reviewed. I wish to emphasize we just said, as a tripartisan group of Senators: We would just like a rough estimate--use any approach they want in terms of giving us an assessment of how many Americans' communications have been swept up in this way. Is it hundreds? Is it hundreds of thousands? Is it millions?

The tripartisan group of Senators basically was just asking for a report, the kind of information that is a prerequisite to doing good oversight. Frankly, I think when we talk about oversight and we cannot even get a rough estimate of how many law-abiding Americans have had their communications swept up under this law, if they do not have that kind of information, oversight--the idea of robust oversight--it ought to be called toothless oversight if they do not have that kind of information.

The Director declined to publicly answer this question. So our tripartisan group and others continued. We asked the Director if anyone else has already done such an estimate. We did not ask about doing anything new. The intelligence community said: Oh, my goodness. It will be so hard to give even a rough estimate. So we said: OK. Just tell us if anyone else has already done such an estimate. The Director declined to publicly answer this question as well.

Right at the heart of this discussion is, if we are serious about doing oversight, the Congress ought to be able to get a straightforward answer to the question: Have any estimates been done already as to whether law-abiding Americans have had their communications swept up under the FISA authority?

Second, if we want to understand this law's impact on Americans' privacy, we probably want to know whether any wholly domestic communications have been collected under the FISA authorities. When we are talking about wholly domestic communications, we are talking about one person in the United States talking to another person who is also in the United States. This law contains a number of safeguards that many people thought would prevent the warrantless collection of wholly domestic U.S. communications, and I think the Congress ought to know whether these safeguards are working.

So our tripartisan group of Senators dug into this issue as well, and we asked the Director back in July if he knew whether any wholly domestic U.S. communications had been collected under the FISA Amendments Act. So here we are talking about wholly domestic communications from one American, for example, in Rhode Island, to another American in the home State of Senator Merkley and myself. I am disappointed to say the Director declined to answer this question as well.

Let's contemplate that for a moment. A tripartisan group of Senators--Democrats, Republicans, Independents--asked if the government knew whether any wholly domestic communications had been collected under the FISA law, and the head of the intelligence community declined to publicly provide a simple yes or no response to that question.

That means the FISA Amendments Act involves the government going to a secret court on a yearly basis and getting programmatic warrants to collect people's phone calls and e-mails, with no requirement that these communications actually belong to people involved with terrorism or espionage. This authority is not supposed to be used against Americans, but, in fact, intelligence officials say they do not even know how many American communications they are actually collecting. The fact is, once the government has this pile of communications, which contains an unknown but potentially very large number of Americans' phone calls and e-mails, there are surprisingly few rules about what can be done with it.

For example, there is nothing in the law that prevents government officials from going to that pile of communications and deliberately searching for the phone calls or e-mails of a specific American, even if they do not have any actual evidence that the American is involved in some kind of wrongdoing, some kind of nefarious activity.

Again, if it sounds familiar, it ought to because that is how I began this discussion, talking about these sorts of general warrants that so upset the colonists. General warrants allowing government officials to deliberately intrude on the privacy of individual Americans at their discretion was, as I have outlined this morning, the abuse that led America's Founding Fathers to rise up against the British. They are exactly what the fourth amendment was written to prevent.

If government officials wanted to search an American's house or read their e-mails or listen to their phone calls, they are supposed to show evidence to a judge and get an individual warrant. But this loophole in the law allowed government officials to make an end run around traditional warrant requirements and conduct backdoor searches for American's communications.

Now, let me be clear. If the government has clear evidence that an American is engaged in terrorism, espionage--serious crimes--I think the government ought to be able to read that person's e-mails and listen to that person's phone calls. I believe and have long felt that is an essential part of protecting public safety. But government officials ought to be required to get a warrant. As the Presiding Officer knows, there are even emergency provisions--and I support these strongly as well--that allow for an emergency authorization before you get the warrant, in order to protect the well-being of the American people.

So what we want to know at this point, if you are trying to decide whether the constitutional teeter-totter is being properly balanced or is out of whack, you want to know whether the government has ever taken advantage of this backdoor search loophole and conducted a warrantless search for the phone calls or e-mails of specific Americans. So when the tripartisan group wrote to the Director of National Intelligence, we asked him to state whether the intelligence community has ever deliberately conducted a warrantless search of this nature. The Director declined to respond to this as well--declined to respond to a tripartisan group of Senators simply asking: Has the intelligence community ever deliberately conducted a warrantless search of this nature?

If anybody is kind of keeping score on this, you will notice that the Director refused to publicly answer any of the questions that were asked in our letter. So if you are looking for reassurance that the law is being carried out in a way that respects the privacy of law-abiding American citizens, you will not find it in his response.

I should note that the Director did provide additional responses in a highly classified attachment to his letter. This attachment was so highly classified that I think of the 13 Senators who signed the letter of the tripartisan group, 11 of those 13 Senators do not even have staff who have the requisite security clearance to read it. So naturally that makes it hard for those Senators, let alone the public, to gain a better understanding of the privacy impact of the law.

Several Senators sent the Director a followup letter last month again urging him to provide public answers to what we felt were straightforward questions--really sort of a minimum set of responses that the Congress needs to do oversight. The Director refused that as well.

Intelligence officials do not deny the facts I have outlined this morning.

They still insist they are already protecting innocent Americans' privacy. There is a lot of discussion about how this program is overseen by the secret FISA Court, how the court is charged with ensuring that all of the collections carried out under this program are constitutional.

To respond to those arguments, I would note that under the FISA Amendments Act, the government does not have to get the permission of the FISA Court to read particular e-mails or listen to particular phone calls. The law simply requires the court to review the government's collection and handling procedures on an annual basis. There is no requirement in the law for the court to approve the collection and review of individual communications even if government officials set out to deliberately read the e-mails of an American citizen.

Even when the court reviews the government's collection and handling procedures, it is important to note that the FISA Court's ruling are made entirely in secret. It may seem hard to believe, but the court's rulings that interpret major surveillance law and even the U.S. Constitution in significant ways--these are important judgments--the public has absolutely no idea what the court is actually saying. What that means is that our country is in effect developing a secret body of law so that most Americans have no way of finding out how their laws and their Constitution are being interpreted. That is a big problem. Americans do not expect to know the details of how government agencies collect information, but Americans do expect those agencies to operate within the boundaries of publicly understood law. Americans need and have a right to know how those laws and the Constitution are interpreted so they can ratify the decisions that elected officials make on their behalf. To put it another way, I think we understand that Americans know that intelligence agencies sometimes have to conduct secret operations, but the American people do not expect these agencies to rely on secret law.

I think we understand that the work of the intelligence community is so extraordinarily important. I see the distinguished chair of the committee here. Every member of our committee--every member--feels that it is absolutely critical to protect the sources and methods by which the work of the intelligence community is being done. But we do not expect the public to, in effect, just accept secret law.

When you go to your laptop and you look up a law, it is public. It is public. But what I have described is a growing pattern of secret law that makes it harder for the American people to make judgments about the decisions that are being made by those in the intelligence community. I think that can undermine the confidence the public has in the important work being done by the intelligence community.

If you think back to colonial times, when the British Government was issuing writs of assistance and general warrants, the colonists were at least able to challenge those warrants in open court. So when the courts upheld those writs of assistance, ordinary people could read about the decisions, and people such as James Otis and John Adams could publicly debate whether the law was adequately protecting the privacy of law-abiding individuals. But if the FISA Court were to uphold something like that today, in the age of digital communications and electronic surveillance, it could conceivably pass entirely unnoticed by the public, even by those people whose privacy was being invaded.

Since 2008 other Senators and I have urged the Department of Justice and the intelligence community to establish a regular process for reviewing, redacting, and releasing the opinions of the FISA Court that contain significant interpretation of the law so that members of the public have the opportunity to understand what their government thinks their law and their Constitution actually mean. I am not talking about a need to release every single routine decision made by the court. Obviously, most of the cases that come before the court contain sensitive information about intelligence sources and methods that are appropriate to keep secret.

I do not take a backseat to any Member of this body in terms of protecting the sources and methods of those in the intelligence community doing their important work, but the law itself should never be secret. What Federal courts think the law and the fourth amendment to the Constitution actually mean should never be a secret from the American people, the way it is today.

I am going to wrap up. I see Senator Merkley and Senator Feinstein here. I have a couple of additional points.

I was encouraged in 2009 when the Obama administration wrote to Senator Rockefeller and myself to inform us that they would be setting up a process for redacting and releasing those FISA Court opinions that contained significant interpretations of law. Unfortunately, over 3 years later, this process has produced literally zero results. Not a single redacted opinion or summary of FISA Court rulings has been released. I cannot even tell if the administration still intends to fulfill this promise. I often get the feeling they are hoping people will go away and forget that the promise was made in the first place.

I should note, in fairness, that while the administration has so far failed to fulfill this promise, the intelligence community has sometimes been willing to declassify specific information about the FISA Court's rulings in response to requests from myself and other Senators. For example, in response to a request I made this past summer, the intelligence community acknowledged that on at least one occasion--this was an acknowledgement from the intelligence community. The intelligence community acknowledged that at least on one occasion, the FISA Court had ruled that collection carried out by the government under the FISA Amendments Act violated the fourth amendment to the Constitution. I think that is an important point to remember when you hear people saying the law is adequately protecting Americans' privacy.

I would also note that on this point, partially declassified internal reviews of the FISA amendments collection act have noted that certain types of compliance issues continue to occur--continue to occur.

I have two last points. Beyond the fact that the programmatic warrants authorized by the FISA Amendments Act are approved by a secret court, the other thing that intelligence officials cite is that there are ``minimization'' procedures to deal with the issues that those of us who are concerned about privacy rights have raised. This is an odd term, but it simply refers to rules for dealing with information about Americans.

Intelligence officials will tell you that these are pretty much taking care of everything, and if there are not enough privacy protections in the law itself, minimization procedures provide all of the privacy protections any reasonable person could ever want or need. These minimization procedures are classified, so most people are never going to know what they say. As someone who has access to the minimization procedures, I will make it clear that I think they are certainly better than nothing, but there is no way, colleagues, these minimization procedures ought to be a substitute for having strong privacy protections written into the law.

I will close with the reason I feel so strongly about this, which is that senior intelligence officials have sometimes described these handling procedures in misleading ways and make protections for Americans' privacy sound stronger than they actually are. I was particularly disappointed when the Director of NSA did this recently at a large technology conference.

In response to a question about the National Security Agency's surveillance of Americans, General Alexander referenced the FISA Amendments Act and talked in particular about the minimization procedures that applied to the collection of U.S. communications. Understand that this was at a big, open technology conference. General Alexander said that when the NSA sweeps up communications from a ``good guy,'' which I think we all assume is a law-abiding American, the NSA has ``requirements from the FISA court and the Attorney General to minimize that, which means nobody else can see it unless there is a crime that is being committed.'' Now, anybody who hears that phrase says: That

is pretty good. I imagine that is what people in that technology meeting and the conference call wanted to hear. The only problem is that it is not true. It is not true at all. The privacy protections provided by these minimization procedures are simply not as strong as General Alexander made them out to be.

In October, a few months after General Alexander made the comments, Senator Udall and I wrote him a letter asking him to please correct the record. The first paragraphs of the letter were:

Dear General Alexander:

You spoke recently at a technology convention in Nevada, at

which you were asked a question about NSA collection of

information about American citizens. In your response, you

focused in particular on section 702 of the FISA Amendments

Act of 2008, which the Senate will debate later this year. In

describing the NSA's collection of communications under the

FISA Amendments Act, you discussed rules for handling the

communications of U.S. persons.

General Alexander said:

We may, incidentally, in targeting a bad guy hit on

somebody [sic] from a good guy, because there's a discussion

there. We have requirements from the FISA Court and the

Attorney General to minimize that, which means nobody else

can see it unless there's a crime that's been committed.

Senator Udall and I wrote:

We believe that this statement incorrectly characterized

the minimization requirements that apply to the NSA's FISA

Amendments Act collection, and portrayed privacy protections

for Americans' communications as being stronger than they

actually are. We urge you to correct this statement, so that

Congress and the public can have a debate over the renewal of

this law that is informed by at least some accurate

information about the impact it has had on Americans'

privacy.

General Alexander wrote us back a few weeks later and said that, of course, that is not exactly how minimization procedures work and, of course, the privacy protections aren't as strong as that.

If anyone would like to read his letter, I put it up on my Web site. I don't know why General Alexander described the minimization procedures the way he did. It is possible he misspoke. It is possible he was mistaken. But I certainly would be more sympathetic to these arguments that all these privacy protections are being taken care of if it hadn't taken Senator Udall and I making a push to get the NSA to correct the record with respect to these minimization procedures. Frankly, I am not sure, if there hadn't been a big push by Senators who had questions about what was said at that technology conference, I am not sure the NSA would have ever corrected what they originally said about minimization.

So minimization procedures are not a bad idea, but the suggestion that we don't need privacy protections written into the law because of them is a bad idea.

Finally, at that conference, General Alexander stated: ``The story that we [the NSA] have millions or hundreds of millions of dossiers on people is absolutely false.''

I have been on the Senate Intelligence Committee for 12 years, and I don't know what the term ``dossier'' means in that context.

So in October, Senator Udall, a member of the committee, and I asked the Director to clarify that statement. We asked:

Does the NSA collect any type of data at all on `millions

or hundreds of millions of Americans'?

I think that is a pretty straightforward question. If we are asking whether the NSA is doing a good job protecting Americans' privacy, it is one of the most basic questions of all. If General Alexander saw fit, and he was the one who said they don't keep millions of dossiers, General Alexander could have answered our question about whether they were keeping these dossiers with a simple yes or no.

Instead, the Director of the NSA replied that while he appreciated our desire to have responses to the questions on the public record, he would not provide a public answer.

Again, the Director of the NSA said: ``The story that we [the NSA] have millions or hundreds of millions of dossiers on people is absolutely false.''

So two members of the committee asked: ``Does the NSA collect any type of data at all on `millions or hundreds of millions of Americans,' '' and the Director refused to respond.

At this point, I close by way of saying I believe the FISA Amendments Act has enabled the government to collect useful intelligence information, and my goal is to reform the legislation. The two specific things I want to do are, first, require the intelligence community to provide more information about the impact of the FISA Amendments Act on Americans' privacy and, second, to make improvements to privacy protections so we can readily see where they are most needed.

So there will be several amendments that will be offered. The amendment I will be offering is sponsored by 15 Members of the Senate. It simply says the Director of the National Intelligence Agency should submit a report to the Congress on the privacy impact of the FISA Amendments Act.

This amendment would require the report to state whether any estimate has been done, how many U.S. communications have been collected under the authority, and to provide any estimates that exist. I wish to emphasize this amendment would not require any entity to actually conduct such an estimate. The Director would be required only to provide any estimates that have already been done and, if no estimates exist, the Director could say so.

Additionally, the amendment would require the report to state whether any wholly domestic communications have been collected under the FISA Amendments Act and whether any government agencies have ever conducted any warrantless, backdoor searches. These are straightforward questions, and they are obviously relevant to understanding the scope of the law's impact on privacy.

The report would address General Alexander's confusing statements by requiring the intelligence community to simply state whether the NSA has collected any personally identifiable data on more than 1 million Americans. The Congress and the country deserve an answer to this question as well.

The amendment does not force the declassification of any information. The amendment gives the President full discretion to redact as much information from the public version of the report as he deems appropriate, as long as he tells the Congress why.

To repeat, the amendment doesn't require the intelligence community to conduct a new estimate, and the President would have full discretion to decide whether any information should be made public.

I offer this amendment because I believe every Member of Congress ought to have the answers to these questions. If your constituents are similar to mine and Senator Merkley's, they expect us to give government agencies the authority to protect our country and to gather intelligence on important topics, but they also expect us to conduct vigorous oversight on what those agencies are doing.

It is, I guess, a temptation to say: I don't know what is going on, so I will let somebody else look at the privacy issues and go from there. I don't think that is good oversight.

To me, at a minimum, if we don't pass a requirement that we get a rough accounting of whether there has even been an estimate done with respect to how many law-abiding Americans have been swept up under these FISA authorities, my view is that oversight becomes toothless, and that is not what our obligation over these issues is all about.

There will be other important amendments as well. Senator Merkley has one that I think is particularly important because it goes to this question of secret laws. Senator Leahy seeks to promote additional accountability as well with his important amendment. My colleague Senator Paul will be offering an amendment, an important amendment as well, with respect to reasonable searches and seizures under the fourth amendment.

We obviously have crucial work to do with respect to the fiscal cliff issue in the next few days. We talked earlier when the majority leader was here about the impact of the budget and taxes, senior citizens not being able to see doctors. It is crucial work, and I continue to be part of that optimists caucus in the Senate, believing we can still find some common ground in these last few days on the fiscal cliff and avoid going over the fiscal cliff.

That is crucial work, but striking the right balance between protecting our country and protecting our individual liberties is also important work. For

that reason, I wanted to walk through the history of the FISA Amendments Act this morning, describe why it was so important, particularly for us to get even an accounting.

Remember, this doesn't disrupt any operations in the intelligence community. This is just an accounting of how many law-abiding Americans had their communications swept up under this law. That work is crucial too.

For that reason, I hope that on a bipartisan basis, the amendments will be viewed favorably by the Senate when we begin voting. Thank you for your indulgence for being part of this discussion, presiding in the chair, and with special thanks to the distinguished majority leader who gave me the opportunity to open this discussion about FISA this morning.

I yield the floor.

Mr. President, parliamentary inquiry: Can I yield to Senator Merkley time from general debate in order to let him complete his remarks?

I ask unanimous consent.

Madam President, I am going to truncate my remarks to 5 minutes. I came to speak on the supplemental and the great needs in the Northeast.

Generally, because I know there are other Senators who have other items to discuss, I will come back at a later time for extended remarks. I wanted to come to the floor just to say to all of my colleagues that I hope we can be patient with one another, supportive of the tragedy that is unfolding in the Northeast related to Superstorm Sandy, which I think has caused greater destruction than maybe many people in this Chamber and this Capitol realize.

While Katrina--something that I am very familiar with, a storm that hit us over 7 years ago, in August of 2005--received headline after headline after headline, week after week after week, television station after television station, Superstorm Sandy, because it hit a more dense area that is potentially not as--I don't know--as camera friendly, and maybe because of some of the other things that have subsequently happened, the terrible shooting and other issues in the country, I am not sure the public quite understands how devastating this storm has been for a very important part of our country. I will try to frame it with just a few statistics that might grab people.

In my State, when Katrina hit, in one weekend we lost 18,000 small businesses. To us, it was a nightmare. We have about 1.2 million people in our metropolitan area and 18,000 small businesses represented a tremendous loss. But the businesses that have been lost in New York and New Jersey exceed 300,000. As to homes, we have lost 275,000 homes along the gulf coast. In New York alone we have lost over 350,000 homes, and those numbers are still coming in for New Jersey.

While it is not on the television every night, and CNN is not filming from New York or from New Jersey or any of these communities on a nightly basis like they did from New Orleans and the gulf coast for weeks and weeks, it would be wrong for us in this Congress to underestimate the damage that has been caused to this area.

One thing I wanted to say today is--and I will come back for extended remarks--it is not only the resources that we need to get to this region, $60 billion is not all that the region requested. They requested $90 billion and had good justification for asking for that. The President trimmed back those responses to get to the real core of what was needed for family, for flood insurance, for the Corps of Engineers, for mitigation, for transportation, so that the recovery could get underway in a very balanced and robust way.

It is not all that the region wanted, but it is a large enough package, Madam President, to give hope to people in New Jersey and New York, and, yes, Connecticut, Maryland, and a few other places that were hard hit as well. Then they could begin making plans for recovery.

There are whole towns, portions of towns, communities. I was able to actually get on the ground with Senator Menendez and visit one of the Long Beach communities in New Jersey--I think it was the Long Beach community there--and saw just miles and miles and miles of shuttered businesses, one after another, along that Jersey shore. I just saw a small portion of it that day. It goes on for miles and miles and miles.

Now, just for the next minute or two, yes; insurance is going to cover some of these losses, but insurance is not going to cover it all. In the bill that we are about to talk about, and are talking about now, there is an authorization for $9 billion more for flood insurance. If we don't authorize this $9 billion, which is part of the 60, there will not be flood insurance claims paid to people who have paid into the flood insurance program. They will not be able to get out their legitimate claims. So that is one of the important reasons we should pass the supplemental.

In the final 30 seconds I have--and I will come back and speak longer--there is the mitigation part of this. After Katrina, one of the smartest things we did was to send to the communities on the gulf coast, to mitigate against future storm damage--it was about $14 billion total for several of our large Corps projects. It was a lot of money. People grumbled and complained, but, you know what. They sent it.

The Corps built the project on time and underbudget, and in this last storm that we had, Isaac, which just hit, which people don't even remember--we had a storm in August, the same date as Katrina--there wasn't a drop of water in Orleans Parish or Jefferson Parish except for lower parts of Jefferson, not even in Saint Bernard. Why? Because the mitigation worked.

So the two points I want to make and then, in turn, yield to Senator McCain and others who are on the floor, are this bill is not everything that was requested, but it is robust enough to do the job. No. 2, it has tools in it to help the recovery move faster, more streamlined, more efficiently. And, No. 3, mitigation works.

So as this debate goes on, I know some people are getting hardened hearts about this bill already, but I am asking you to understand that in a catastrophic disaster such as this, regular process won't work, regular appropriations won't work. Supplemental disaster funding is essential, and not just for FEMA but for transportation, for the Corps, et cetera.

I thank Senator Leahy for his leadership at a very difficult time. I will come back and speak more about this later, but I wanted to get some of these statements in the Record as we begin this debate, and I will come back and talk more about the Homeland Security portion of this bill.

I yield the floor.

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

Mr. President, Senator Leahy has been handling this bill for the last 24 hours or so, and I came to the floor earlier to speak about the supplemental. I gave truncated remarks because Senator McCain had personal remarks to make on behalf of his colleague Senator Kyl. At this time I would like to reengage in the debate regarding the supplemental for just a few minutes.

I know this day has been back and forth with personal tributes on the floor as well as the debate on the supplemental for Superstorm Sandy. I have come to the floor specifically as chair of the Appropriations Homeland Security Subcommittee, which does have jurisdiction over FEMA, and to say a couple of words about this piece of the supplemental.

I understand that other chairs of the Appropriations Committee have come down to talk. I know there have been discussions with regard to the Corps of Engineers mitigation issues and fishery issues in this bill, which is the subject of Senator Mikulski's committee. Senators have talked about housing and urban development, community block grants--that is in HUD--and transportation, which is under the jurisdiction of Senator Murray's committee.

I have been pleased and honored to be the chair of the Appropriations Homeland Security Subcommittee for several years now. I am proud we are actually seeing the benefits today of the reforms that were put in place as our first responders respond to literally the worst disaster to hit the Northeast in 50 years.

I wish to address a few things and clarify some numbers for the record. The fact that Hurricane Sandy is not on the news every night and CNN is not broadcasting from the shores of New York and New Jersey does not mean it is over. The news coverage happened for a few days, and then they went to other pressing issues of the day. As new challenges arise, it is natural that the attention of the press will be diverted. The problem is that it may be natural, but it is not necessarily good for people who have lost their homes and their businesses. Without quick action from Congress and robust, definitive, comprehensive support from the Federal Government, these individuals and communities will not be able to recover.

As the Senator from one of the States hardest hit in recent memory from a natural disaster, I am able to testify as an eyewitness to what happened in the aftermath of Hurricanes Katrina and Rita and what is possible in the recovery for Hurricane Sandy.

It has been over 7 weeks since Hurricane Sandy claimed the lives of more than 130 Americans and destroyed--and I want to correct the record--340,000 homes and 200,000 businesses. Just to make a comparison, as a result of Hurricane Katrina, which primarily hit south Louisiana and Mississippi, we lost 275,000 homes. This is 340,000 homes that have been destroyed. That is more than Hurricanes Katrina and Rita. And 200,000 businesses is substantially more businesses that were lost compared to Hurricanes Katrina and Rita, which was about 18,000 businesses. Part of it is due to this area being more densely populated.

The storm was broader in its width and more intense in certain areas. It was broader geographically, and the area is so densely populated. I think it is hard for people from less populated areas of the country to understand how much destruction can be leveled in a certain area. More than 8.5 million families were left without power, heat, or running water. Many of those families have power, heat, and running water now, although not all.

Just this week, I picked up the phone to call my friend Marc Moriel, president of the Urban League. The Presiding Officer knows him very well. He

was a former mayor of New Orleans. The cell phone wasn't answered. Finally, through a couple of connections, I got through to him. Their offices are in New York.

He said: Mary, I am sorry I couldn't get back to you sooner. Our phones are still out from Sandy.

They have not lost their home, but they were out of their home for some time.

As I said before, just because it is not on the news does not mean it is over. There are thousands of small businesses, nonprofits, individuals who, without this package of hope and support, are not going to get back to business to help get their communities back and help get our economy running again. The Urban League is just one example. There are still individuals without phone service, power, et cetera.

It is important for us to understand that insurance proceeds are not going to be enough. Even with a well-insured population, it is not going to be enough to handle the catastrophe that befell this particular area of our country just a few weeks ago.

Over 500,000 people registered for temporary housing and individual assistance. FEMA provided over 14 million meals, over 16 million liters of water, 1.6 million blankets, and 100,000 tarps. DOD delivered 9.3 million gallons of gasoline to 300 gas stations, and over 270 million gallons of saltwater was pumped out of transit tunnels. At the peak of the response, 17,000 Federal personnel and over 11,000 National Guardsmen were involved. The response was robust, quick, efficient, and I think the taxpayers of our country and I know the people of the region are grateful for the new FEMA that showed up. Not everything is perfect. We still have more work to do, but the response was much better than it was during Katrina.

However, that initial response is now over and the recovery must begin. The recovery cannot begin in earnest and no great plans can be made. Neither can Governor Christie nor Governor Cuomo, nor Mayor Bloomberg, nor Mayor Cory Booker or any other mayors, including the mayor of Hoboken in New Jersey, who testified before our committee this week--none of the mayors can get about framing the possibility of recovery without knowing certain things. They need to know that, A, FEMA is going to have enough money to stick with this, which they do not now because they are going to run out of money in the spring; they have to know that FEMA has enough money to go the distance. They don't know that now and, without the supplemental, they won't.

They have to know they have some mitigation money in this bill to repair and fix some of the dunes that were well engineered that protected communities and to rebuild dunes that failed because they were not engineered properly. No one is going to reinvest--or very few people will reinvest--behind a dune that is going to fail again.

There are fisheries communities along the coast and tourism along the coast, much like the gulf coast. So all of these pieces of recovery are very important. We can't send FEMA money without the Corps of Engineers money or without community development block grant money, because the recovery is a holistic recovery. Most people are very smart and many people like to hold on to what money they have left. They can't take the last little bit of their savings to rebuild their house and invest in their business if they don't know the Federal Government has sent money for the dune repair or the Federal Government has sent enough money for their fire station to get up and running. What good is having a business with no fire protection? What good is having a business if there is no grocery store within 30 miles? All of these things work together, and that is what we saw with Katrina. The question is not whether FEMA has enough money; the question is whether HUD has enough money--well, it is important that FEMA have enough money but it is not the only question. FEMA has to have money, but so does HUD, so does Transportation, and so does the Corps of Engineers.

In addition to what is happening along the east coast, nine States and the District of Columbia have been declared major disasters--well, nine States and the District of Columbia, from Hurricane Sandy. It is not just Hurricane Sandy. We had a record number of disasters last year around the country. So, yes, there is some money in this bill for other disasters and if we have to increase or decrease that sum to accommodate some of the interests of the Members, we are going to have to do so to get help not only to the Northeast but to other areas of the country as well.

North Dakota experienced terrible flooding. We were a little bit short on sending money to them and perhaps we should fix that in this bill. There have been some agricultural areas that have been very hard hit. We should fix that in this bill. Americans who pay taxes expect when they have catastrophic disasters for us to step up, and I think that is a good expectation, and I think it is a very fair expectation. When this country went to war over a decade ago, we didn't pay for the $1.4 trillion that it took to secure this Nation from an outside threat. Sometimes threats come right to our front door and we have to be willing to step up and give a small amount compared to the $1.4 trillion we spent in Iraq and in Afghanistan that was not offset. We should be willing to spend a very small portion--$60 billion in this case, over $100 billion for Katrina and Rita, and a few billion here and there. That is not an insignificant amount of money. A billion dollars is a lot of money. It sounds like a lot to anyone listening, but relative to the cost of the war, it is a very small investment in our own country to help Americans who have played by the rules, done everything they were asked to do--they even have insurance--yet, without this bill, there is not enough money in the insurance program to cover their claim when they file it.

If we don't pass this bill, there is not enough money for FEMA to do its job. There is not any money in the Corps of Engineers. There is not enough money for transportation. Taxpayers in the Northeast and around the country deserve our best efforts.

If there is a Member who believes there is something in this bill, whether it is in my section of the bill which is Homeland Security, or whether it is in another--if a Member doesn't feel as though a request in here is justified, please offer an amendment, let us debate it, and maybe we can make some changes or a modification. Unfortunately, I can say from personal experience, from watching the mayors I represent--all 300-plus mayors in the State, dozens of them, their communities were destroyed by Katrina, watching them struggle month after month, year after year, not knowing what money was coming from Washington; whether the levees would get repaired or not; whether there was going to be a community development block grant--I can tell my colleagues it is better to fund this on the front end like this. Give them the money, let them make their plans, and then in a year or two if it is not enough they can come back and we can make some adjustments as opposed to not acting or giving them too little to start. If we do that, the recovery will not get off in a very balanced way and it will cost the taxpayers so much more in the long run.

I am kind of responsible for the FEMA portion, for the flood insurance portion, and for some of the reforms that are represented in this bill. I wish to speak for a minute about those reforms because sometimes it is not just about investing money and giving money from Washington; sometimes it is giving money in a way that saves taxpayers money in the long run or for investing in a way that includes reform. This is not your grandfather's FEMA. This is a new FEMA. We have some new reforms that are authorized in this bill that are going to help the recovery go more quickly, and I wish to talk about that for a minute.

This is a reform-minded supplemental. It is drafted to be a more efficient, more effective, and smarter recovery, saving taxpayers money over time. It reauthorizes two expired pilot programs from the Post- Katrina Emergency Management Reform Act, allows the use of money to repair rental housing units, and to expedite debris removal procedures. If my colleagues have not been a witness to a catastrophic disaster, they cannot imagine the amount of debris generated from either a massive fire or a massive flood. The old rules FEMA operated under were a waste of money, a waste of time, and lost opportunities. So we

have expedited debris removal. We cannot start rebuilding a community until we can get rid of the debris. It sounds like common sense and it is, but there are some bureaucratic hurdles and we are trying to fix those in this bill.

It allows the State to draw on a portion of the hazard mitigation funding from FEMA in order to leverage mitigation opportunities in the reconstruction process. Under the current program, it takes 18 to 36 months for funding to become available. By then, most reconstruction is already completed or underway. This would expedite--sort of forward fund--some of those projects, which is another smart move to save taxpayers money.

It codifies grants on the basis of flexible and fixed estimates for expedited removal of debris. It codifies temporary legislative measures that were connected to facilitate smarter recovery after Katrina and Rita, including third-party arbitration. It removes the penalty on alternative projects, and it allows FEMA to consolidate facilities.

Specifically, if 10 fire stations were lost in an area, instead of FEMA reimbursing each fire station one at a time, they can make a general estimate and receive a global settlement. We did this for our schools in New Orleans. One hundred out of 146 were destroyed. It was one of the smartest things we ever did, because before we passed this reform legislation, FEMA was asking us to count every piece of chalk that was missing, every eraser that was missing, every broken pane of glass, and would only refund the building of that exact building on that exact spot. We were able to have a global settlement where we could reconstruct our schools not to build a school system that had been built for the past century but to build a school system for the next century. That is what makes sense. That is what is in this reform supplemental.

There are better tools, more carefully designed to save taxpayers money and to help expedite a recovery of one of the most important financial centers in the world--not just in the United States but in the world. Every part of this country is important, but this particular part of the country, a lot of the rest of us depend on it operating at full speed, particularly as this recovery moves to our rearview mirror.

Let me say two or three more things. It reduces bureaucratic waste by eliminating the current practice of duplicative agency reviews for the same project. It will allow the rebuilding to, of course, consider environmental needs, but it does not require an environmental review by every agency for the same project. It helps to streamline that, which I think makes sense and honors the environment at the same time.

It includes tribal governments for the first time, which I think is an important addition, and, again, it requires an assessment of Hurricane Sandy's impact on local government budgets in the event they might need to borrow some additional money to continue to operate.

So, again, the $60 billion number is a large number. It is billions of dollars. It is not by any means pocket change, but compared to the money that was outlaid for the wars--$1.4 trillion--when disaster comes knocking at the door in our hometowns, whether it is Hoboken, NJ, or New Orleans, LA, taxpayers who live by the rules and pay their taxes every year expect not a handout, not an easy recovery, but they do expect the Federal Government to step up and at least be a partner in their recovery.

There are local taxes that are going to have to be raised. There are hundreds and thousands of hours of volunteer efforts that go into rebuilding communities. Churches and faith-based organizations show up and do more than their share, but the Federal Government most certainly should step up and help the Northeast and a few other disasters that are still open.

All of this money will come back to us one-hundredfold as these businesses get back up on their feet, start paying taxes again to the community, and hire people who have been laid off. In fact, it creates a little bit of a stimulus boon in those communities, which benefits the tax base as well, as taxes are collected from every business that is reopened. So it is a smart investment for us.

I would recommend to my colleagues if they have specific objections to a specific part of the bill to file an amendment. We can discuss it, we can debate it, and perhaps we can shave a little here or a little there; perhaps there are some things that can be done differently. But this has gone under careful review by the administration and by the different members of the Appropriations Committee on both sides of the aisle, and, of course, vetted and screened by Governor Christie, a strong Republican leader in our country, Governor Cuomo, a strong Democratic leader in our country, and numerous mayors and elected officials have looked at this.

This is not something that was written in the dark of night somewhere by somebody who doesn't understand about disasters. It was carefully crafted for a very strong recovery for the Northeast.

I thank the Members for their suggestions and I look forward to the debate, and hopefully we can get this supplemental done before this Congress adjourns. I think the people of the Northeast and the rest of our country are depending on us to do that.

I yield the floor.

Mr. President, I would like to make an opening statement, as the committee chair, on the bill that is before the Senate.

This bill is a simple bill. This is a House bill that extends, reauthorizes the FISA Amendments Act. FISA is the Foreign Intelligence Surveillance Act. The House bill reauthorizes the FISA Amendments Act for 5 years, until December 31, 2017. That is all it does.

Without Senate action, these authorities to collect intelligence expire in 4 days. That is the reason it is the House bill before us, and that is the reason I urge this body to vote no on all amendments and send this reauthorization to the President where it will be signed. If it goes past the 31st, the program will be interrupted.

This is important. Reauthorization of the FISA Amendments Act has the support of the Director of National Security, Jim Clapper; the Attorney General, Eric Holder; and other national security officials who have made clear the importance of this legislation.

Following my remarks, I would like to enter letters into the Record from the Attorney General and the Director of National Intelligence, saying this reauthorization is the highest legislative priority of the Intelligence Community.

Let me explain what the expiring provisions of the FISA Amendments Act do. I assume that is agreeable with the President that these letters go into the Record following my remarks.

Let me describe what these provisions do and why they are necessary to reauthorize.

What will expire on December 31 is title VII of FISA, which is called the FAA, the FISA Amendments Act. This authorizes the executive branch of the government to go to the FISA Court, which is a special court-- and most people don't know this--of 11 Federal District Court judges appointed by the Supreme Court who review government requests for surveillance activities and obtain annual approval for a program to conduct surveillance on non-U.S. persons, in other words, surveillance on individuals who are not U.S. citizens or lawful permanent residents and who are located outside the United States.

Under current law, the Attorney General and the Director of National Intelligence may submit an application to the FISA Court. I call this a program warrant. It identifies the category of foreign persons against whom the government seeks to conduct surveillance. This application is accompanied by targeting and minimization procedures that establish how the government will determine that someone targeted for surveillance is located outside the United States; and, secondly, how it is going to minimize the acquisition and retention of any information concerning U.S. persons who are accidentally caught up in this.

If the FISA Court finds the procedures to be consistent with both law and the fourth amendment, they enter an order authorizing this kind of surveillance for 1 year--and the judges on the FISA Court have found both--and they have authorized the program to continue.

The process that follows allows the intelligence community to collect the communications of international terrorists and other non-U.S. persons who are located outside the country by, for example, acquiring electronic communications such as phone calls and e-mails sent to or from a phone number or an e-mail address known to be used by the person under surveillance.

Without this authority, the intelligence community would need to return to the process of going to the FISA Court in every individual case involving collection directed at a non-U.S. person and to prove in each case there is probable cause to believe the individual is part of or working for a foreign power or a terrorist group.

Now, here is the question: Can the government use section 702 of FISA to target a U.S. person? The answer to that is no. The law specifically prohibits the use of section 702 authorities to direct collection against--that means target--U.S. persons. So no one should think the targets are U.S. persons.

This prohibition is codified in section 702(b), which states that surveillance authorities may not be used--and let me quote the law-- ``to intentionally target any person known at the time of acquisition to be located in the United States or to intentionally target a United States person reasonably believed to be located outside the United States.''

Now, if the government wants to engage in electronic surveillance targeting a U.S. person for foreign intelligence purposes, it must go back to the FISA Court and it must get a specific order from that court. In an emergency, the surveillance can commence before the court order is issued, but the government still must have probable cause to believe the U.S. person is an agent of a foreign power.

Let me take a few moments to address the principal concerns some of my colleagues have expressed about this legislation, which is the effect this one provision--Section 702--may have on the privacy and civil liberties of U.S. persons. And let me say that 13 members of the Intelligence Committee who have voted in favor of the extension of the FISA Amendments Act--and against previous amendments from Senator Wyden--do not believe privacy is being eliminated under the law this bill would reauthorize.

As I have discussed, section 702 establishes a framework for the government to acquire foreign intelligence by conducting electronic surveillance on non-U.S. persons who are reasonably believed to be located outside of the United States under a program that is annually approved by the court. The privacy concerns stem from the potential for intelligence collection directed at non-U.S. persons located abroad to result in the incidental collection of or concerning communications of U.S. persons. I understand these concerns, and I would like to explain why I believe the existing provisions are adequate to address them.

First, this section is narrowly tailored to ensure that it may only be used to target non-U.S. persons located abroad. It includes specific prohibitions on targeting U.S. persons or persons inside the United States and prohibitions on engaging in so-called reverse-targeting, which means targeting a non-U.S. person abroad when the real purpose is to obtain their communications with a person inside the United States. That is prohibited.

Anytime the intelligence community is seeking to collect the communications of an American, it has to demonstrate that it has probable cause and get an individual FISA Court order.

Second, Congress recognized at the time this amendments act was enacted that it is simply not possible to collect intelligence on the communications of a person of interest without also collecting information about the people with whom and about whom that person communicates, including, in some cases, non-targeted U.S. persons. The concern was addressed when the FAA was originally drafted. Specifically, in order to protect the privacy and civil liberty of U.S. persons, Congress mandated that for collection conducted under 702, the Attorney General adopt and the FISA Court review and approve procedures that minimize the acquisition, retention, and dissemination of nonpublic information concerning unconsenting U.S. persons.

Third, numerous reports and assessments from the executive branch that I will describe in a moment provide the committee with extensive visibility

into how these minimization procedures work and enable both the Intelligence and the Judiciary Committees to see how these procedures are effective in protecting the privacy and civil liberties of U.S. persons.

Oversight by the legislative, judicial, and executive branch of the government over the past 4 years has been very thorough. There are procedures and requirements in place under current law that provide protection for the privacy and civil liberties of U.S. persons. Those entrusted with the responsibility to collect the oversight, the committees of jurisdiction, the FISA Court, and the executive branch agencies together remain vigilant and continue to review the operations of these agencies.

Let me give a quick summary of the 702 reporting requirements under current law.

They include a semiannual assessment by the Attorney General and the DNI. Every 6 months the AG and the DNI are required to assess compliance with the targeting and minimization procedures and the acquisition guidelines adopted under Section 702. They are both further required to submit each assessment to the FISA Court and the congressional Intelligence and Judiciary Committees.

The inspector general of the Department of Justice and the inspector general of each element of the intelligence community are also authorized review compliance with Section 702. The IGs are required to provide copies of such reviews to the Attorney General, to the Director of National Intelligence, and the congressional Intelligence and Judiciary Committees. So we have the AG reviewing, we have the IGs reviewing, and then we have separate reviews by the agency heads.

The head of each element of the intelligence community must conduct an annual review which includes the following:

First, an accounting of the number of disseminated intelligence reports containing a reference to the U.S. person's identity. As a matter of fact, Members can go into a classified room at the offices of the Senate Intelligence Committee and review these reports. Any Member has access to that review.

Second, an accounting of the number of U.S. person identities subsequently disseminated by that element in response to requests for identities that were not referred to by name or title in the original reporting. Members can review that.

Third, the number of targets who were later determined to be located in the United States and, to the extent possible, whether communications of such targets were reviewed. Members can go in the Intelligence Committee offices and review that.

Fourth, a description of any procedures developed by the head of such element of the intelligence community and approved by the Director of National Intelligence to assess the extent to which acquisitions under 702 acquire communications of U.S. persons, and the results of any such assessment.

So you see, the reporting requirements go on and on.

Then there is a semiannual report. Every 6 months, the AG is required to fully inform the congressional Intelligence and Judiciary Committees concerning the implementation of Title VII of FISA, and there is a whole list of things that must be reviewed and recounted. Then there is a semiannual Attorney General review on FISA. There is also the provision for documents from the FISA Court relating to significant construction or interpretation of FISA.

Mr. President, I ask unanimous consent to have printed in the Record this list.

So, Mr. President, it is not a question of this oversight not being done. I must respectfully disagree with the Senator from Oregon on that point. There is clearly rigorous oversight, and we have done hearing after hearing, we have looked at report after report, and any Member of this body who so wishes can go and review this material in the offices of the Intelligence Committee.

Now, let me talk about a protection that does exist for privacy, but will expire if this bill is not passed. That is section 704. Under this section, the intelligence community is required to get a specific judicial order before conducting surveillance on a U.S. person located outside the United States.

Before this provision was enacted in 2008 as the product of Senators who were concerned--and they were listened to, and this was enacted-- the intelligence community could conduct intelligence collection on U.S. persons outside the country with only the approval of the Attorney General but without a requirement of independent judicial review. Section 704 provides that judicial review by the special Foreign Intelligence Surveillance Court. This will only be preserved if title VII of this act is reauthorized. If it isn't, the privacy provision goes down with it.

Now, let me talk a bit more about the oversight that we have done. If you listen to some, there has been little oversight, but that is not the case. We have held numerous hearings with Directors of National Intelligence Dennis Blair and Jim Clapper; with the head of the NSA, General Alexander; and with Bob Mueller at the FBI. We have had Eric Holder appear before the committee to discuss this, and we have heard from intelligence community professionals involved in carrying out surveillance operations, the lawyers who review these operations, and, importantly, the inspectors general who carry out oversight of the program and have written reports and letters to the Congress with the results of that report.

The intelligence committee's review of these FAA surveillance authorities has included the receipt and examination of dozens of reports concerning the implementation of these authorities over the past 4 years, which the executive branch is required to provide by law. We have received and scrutinized all the classified opinions of the court that interpret the law in a significant way.

Finally, our staff has held countless briefings with officials from the NSA, the DOJ, the Office of the DNI, and the FISA Court itself, including the FBI. Collectively, these assessments, reports, and other information obtained by the Intelligence Committee demonstrate that the government implements the FAA surveillance authorities in a responsible manner, with relatively few incidents of noncompliance.

Let me say this. Where such incidents of noncompliance have arisen, they have been inadvertent. They have not been intentional. They have been the result of human error or technical defect, and they have been promptly reported and remedied. That is important. Through 4 years of oversight, from all these reports, from all the meetings, from all the hearings, we have not identified a single case in which a government official engaged in a willful effort to circumvent or violate the law.

Keep in mind the oversight performed by Congress--that is, both Houses--and the FISA court comes in addition to the extensive internal oversight of the implementation that is performed by the Department of Justice, the Director of National Intelligence, and multiple IGs.

There is a view by some that this country no longer needs to fear attack. I don't share that view, and I have asked the intelligence committee staff to compile arrests that have been made in the last 4 years in America on terrorist plots that have been stopped. There are 100 arrests that have been made between 2009 and 2012. There have been 16 individuals arrested just this year alone. Let me quickly review some of these plots. Some of these may arrests come about as a result of this program. Again, if Members want to see the specific cases where FISA Amendments Act authorities were used, they can go and look at the classified background of these cases.

First, in November, 1 month ago, two arrests for conspiracy to provide material support to terrorists and use a weapon of mass destruction. That was Raees Alam Qazi and Sheheryar Alam Qazi. They were arrested by the FBI in Fort Lauderdale, FL. The next case is another conspiracy to provide material support. Arrested were Ralph Deleon, Miguel Alejandro Santana Vidriales and Arifeen David Gojali. These three men were planning to travel to Afghanistan to attend terrorist training and commit violent jihad; third, was a plot to bomb the New York Federal Reserve Bank; fourth, a plot to bomb a downtown Chicago bar; fifth, a conspiracy to provide material support to the Islamic Jihad Union; sixth, a plot to carry out a suicide bomb attack against the U.S. Capitol in February of 2012; seventh, a plot to bomb locations in Tampa, FL; eighth, a plot to bomb New York City targets and troops returning from combat overseas; ninth, a plot to assassinate the Saudi Ambassador to the United States; and it goes on and on and on.

So I believe the FISA Amendments Act is important and these cases show the program has worked. As the years go on, I believe good intelligence is the most important way to prevent these attacks.

Information gained through programs such as this one--and through other sources as well--is able to be used to prevent future attacks. So, in the past 4 years, there have been 100 arrests to prevent something from happening in the United States, some of these plots have been thwarted because of this program. I think it is a vital program. We are doing our level best to conduct good oversight and keep abreast of the details of the program and to see that these reports come in. I have tried to satisfy Senator Wyden but apparently have been unable to do so.

I am hopeful the Senate Intelligence Committee's 13-to-2 vote to reauthorize this important legislation will be considered by all Members.

I ask unanimous consent to have printed in the Record the Statement of Administrative Policy on the House bill.

It states that the administration strongly supports H.R. 5949, and it goes on to say what the bill

would do. It says it is vital and it produced and continues to produce significant information that is vital to defend the Nation against international terrorism and other threats.

I am very hopeful this bill will pass without amendment and thereupon can go directly to the President for signature.

I yield the floor.

exhibit 1

Inspector General of the

Intelligence Community,

Washington, DC, June 15, 2012.

Hon. Ron Wyden,

Senate Select Committee on Intelligence, U.S. Senate,

Washington, DC.

Hon. Mark Udall,

Senate Select Committee on Intelligence, U.S. Senate,

Washington, DC.

Dear Senator Wyden and Senator Udall: Thank you for your 4

May 2012 letter requesting that my office and the National

Security Agency (NSA) Inspector General (IG) determine the

feasibility of estimating ``how many people inside the United

States have had their communications collected or reviewed

under the authorities granted by section 702'' of the FISA

Amendment Act (FAA). On 21 May 2012, I informed you that the

NSA Inspector General, George Ellard, would be taking the

lead on the requested feasibility assessment, as his office

could provide an expedited response to this important

inquiry.

The NSA IG provided a classified response on 6 June 2012. I

defer to his conclusion that obtaining such an estimate was

beyond the capacity of his office and dedicating sufficient

additional resources would likely impede the NSA's mission.

He further stated that his office and NSA leadership agreed

that an IG review of the sort suggested would itself violate

the privacy of U.S. persons.

As I stated in my confirmation hearing and as we have

specifically discussed, I firmly believe that oversight of

intelligence collection is a proper function of an Inspector

General. I will continue to work with you and the Committee

to identify ways that we can enhance our ability to conduct

effective oversight. If you have any questions concerning

this response, please contact me.

Sincerely,

I. Charles McCullough, III,

Inspector General of the Intelligence Community.

Well, wait a minute.

I object, if it is time on our side that will be used.

Madam President, it is customary in the days before Congress adjourns--and I am still hopeful this Congress will eventually, mercifully adjourn--for Members to offer farewells and testimonials to departing colleagues. I rise today to say a few words about a Senator who is leaving us and whose example I esteem and friendship I have relied on for many years.

Senator Jon Kyl and I have served the State of Arizona together for a quarter of a century since Jon was first elected to the other body and I to the Senate in 1986. We have worked together in this body for the last 18 years. That is a long time to get to know someone with whom you share responsibilities to the State we are honored to represent, and I have gotten to know Jon very well over these many years. I can also say in all honesty that my admiration for him has grown

every single day I have been privileged to serve with him.

I share that admiration for Jon with the people of Arizona, who elected him to the Senate three times, and would have, I am sure, comfortably elected him to a fourth term had he sought reelection. Arizonans hold him in very high regard for a very obvious reason: He has been a very diligent, very effective advocate for their interests.

I have observed him closely as we tended to issues that might seem arcane and unglamorous to Senators from other States but are among the most important and often the most contentious issues to Arizonans-- issues such as land exchanges and water rights settlements. I have never failed to be impressed by the qualities Jon brings to these matters--his unflappable patience, his tireless work ethic, his careful attention to detail, his determination to be fair to all parties involved, and to achieve results that are in the best interests of our State of Arizona.

I have tried to learn from his example, and I wish I could say I have emulated him, but, regrettably, as Arizonans and my Senate colleagues can attest, I still possess a short supply of some of Jon's most conspicuous leadership qualities. His patience, for example, his meticulous preparation and thoroughness are, I am sorry to say, not qualities I will be remembered for, but they have been indispensable to the people of our State. It is fortunate for them and for me that States are represented by two Senators and that Arizonans have had Jon Kyl here to compensate for my shortcomings.

Jon works harder than almost any Member of Congress I know. We all joke about how we are often required to vote on legislation before we have had time to read it. But it is a poorly kept secret that we rarely, if ever, read from preamble to conclusion any of the bills we consider, even if we have had months to do so. Jon does, though. He reads them. When you debate with him over legislation, you better know what you are talking about, because he does and he is almost always better prepared than you are not only to explain his argument but to explain yours as well. He often writes the bills he sponsors, work that most of us almost happily rely on staff to perform. He takes his responsibilities as the author of legislation literally, rather than figuratively, as most of us do.

It is hard to imagine where he finds the time to hold himself to such exacting standards of responsibility, but he does, often working late into the night after the rest of us have gone home, when he reads bills and writes them and tends personally to the concerns of his constituents. He is a Senator's Senator. He is principled, purposeful, informed, collaborative, and able to get things done by cooperation and compromise without ever sacrificing the principles that motivate his public service. He would rather reason with opponents than insult them. He prefers accomplishments to acclaim.

It is little wonder then why our caucus elected and reelected him to our leadership. He has the complete confidence of every one of us. He is an easy man to trust with leadership responsibilities. He is scrupulous in his attention to his responsibilities and fair-minded in use of authority. He has strong views on issues and advocates for them effectively. But if he can't persuade some members of our caucus to agree with him, he will do all he can to defend our rights to be heard and have our position considered fully by the Senate.

I think Members on both sides of the aisle would testify to Jon's fairness, collegiality, and effectiveness. I think we would all testify too to the credit his service has reflected on the Senate, a place we all love but which we must admit doesn't always function as well or as congenially as we would like, a failing that has not escaped the notice of the American people. Were Jon the kind of politician who worried more about his press than his responsibilities to his constituents, his colleagues, and his country, I think many Americans would recognize him as the kind of Senator they wished there were more of here.

It has been my privilege to work with Jon not only on issues of unique importance to the State of Arizona but on many of national importance. We worked together on comprehensive immigration reform in 2007. None of the sponsors of the legislation, including myself and my friend, the late Senator Kennedy, was more instrumental in forging the compromises necessary to put that bipartisan bill together or more diligent and effective in defending it in debate.

I was running for President that year and often away from the Senate. In addition to all the work Jon did to write the bill with Senator Kennedy and others, and seek support for it in both Houses, he had to assume many of my responsibilities as well. He did a better job with them than I did, and though we fell short of success, Jon deserves none of the blame for failure and much of the credit for making the bill as broadly bipartisan as it was and for providing the framework for what will be the kind of compromise I hope and believe we will get to the President's desk in the next Congress.

Longevity in public office isn't always that important a distinction. I have served one term more than Jon and for that minor accomplishment I am referred to as the senior Senator from Arizona. But honestly, I have always looked up to Jon as my senior. He has been my leader, my senior partner in much of the work we have done in Arizona, my friend, and one of the people I most look up to in this place, an example of selfless, capable, honorable public service.

He is leaving the Senate, and he will have time now to spend with his lovely wife Caryll, his son and daughter and his grandchildren. He will have more time too to hike his beloved White Mountains. I envy him that. But I think we would all concede the Senate will miss him, and I will miss him particularly.

Thank you, my friend, for your service, your example, and your friendship. It has been a privilege.

I yield the floor.

Mr. President, is the parliamentary situation in order so I could send an amendment to the desk?

I have an amendment at the desk and I ask for its immediate consideration.

This is McCain-Coburn amendment No. 3355. I ask unanimous consent that Senator Coburn be added as a cosponsor to amendment No. 3355.

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

Mr. President, this amendment is a very simple one. It calls for striking the funding of some $58 million for the USDA, U.S. Department of Agriculture, Forest Restoration Program for planting trees on private property. It is actually a farm bill subsidy program that is run by a relatively unknown agency that is called the Farm Service Administration, which is primarily responsible for managing crop insurance.

Under this program, private landowners with about 50 acres of land can apply for up to $500,000 in free grants for tree planting activities. Obviously, this has nothing to do with an emergency, and there is nothing in the supplemental that limits the funding to Hurricane Sandy areas. Under this bill, this $58 million can be used just about anywhere.

I would like to make a few remarks about the bill itself so we have this in the right context.

First of all, I want our colleagues--everyone--to understand there are none of us who do not support--there is no one who does not support--giving the much needed funding as quickly as possible to help relieve the tragedy of Hurricane Sandy, and we believe there are important parts of this appropriations bill that we should pass immediately. But we also believe there are many provisions in this bill that both have nothing to do with Hurricane Sandy and many of the programs in this bill will not even take effect before the year 2015. We are about to reach the year 2013. We cannot consider this much needed appropriation outside the context that we now have nearly a $17 trillion debt, and, obviously, this $60 billion is now going to be added to the debt because none of it is paid for.

Let's be clear about this. Every one of my colleagues on this side of the aisle wants to act quickly to provide much needed relief for the people who have been impacted by the horrible effects of Hurricane Sandy. But we cannot consider this legislation in a vacuum. We are looking at a $17 trillion debt--somewhere between $16 and $17 trillion. We have committed generational theft. We have mortgaged our

children's and our grandchildren's future. So we must be very careful as to how much more of the taxpayers' dollars are spent. For what? When is this money necessary? Those are the questions this body should be asking itself.

I would argue there are a whole lot of billions of dollars in this bill that fit into the categories of, one, not necessary as a result of the impact of Hurricane Sandy and certainly not an emergency situation.

I would like to go over some of the projects that are in this bill, and some of them hold merit. Some of the projects in this bill are very meritorious. It goes way beyond emergency aid and funds projects, as I said. At a time when we face these deficits, we cannot justify this spending. Again, I wish to emphasize some of the projects are meritorious, but they should go through the normal budget and appropriations process, where Congress has time to vet the need for such spending requests.

The CBO examined both the Senate bill and the administration's request and found--and this is from the Congressional Budget Office--64 percent of the funds appropriated under the Sandy supplemental will not be spent until fiscal years 2015 to 2022 and after, therefore, raising concerns about the rush to spend $60.4 billion without any attempt to pay for it.

Two weeks ago, FEMA Director Fugate told the House Transportation and Infrastructure Committee that the Disaster Relief Fund currently has enough money and will not need additional funding until the spring of 2013. CBO's assessment, combined with the statement of Director Fugate, clearly shows we need to pass a Sandy supplemental bill that only includes prioritized disaster aid funding.

I and my colleague from Oklahoma, Senator Coburn, have been examining this bill over the last few days, and I will tell my colleagues, we have not gotten all the way through it. We have not identified a lot of these spending bills--what they are for and where they came from. The appropriators and their staff I always admire. They have turned it into an art form, and our ability to ferret out some of these appropriations has required a great deal of hard work and effort.

We have billions to replace ``Federal assets'' damaged by the storm, including automobiles owned by the Federal Government. The Federal Government currently owns or leases over 660,000 vehicles. Do you think we could find replacements within our own inventory, the current inventory? Shouldn't we focus on providing relief directly to those still trying to rebuild their lives before replacing a bureaucrats' car?

There is $2 million to repair damage to the roofs of museums in Washington, DC, while many in Hurricane Sandy's path still have no permanent roof over their own heads.

There is $150 million for fisheries as far away from the storm's path as Mississippi and Alaska.

There is $125 million for the Department of Agriculture's Emergency Watershed Protection Program, which helps restore watersheds damaged by wildfires and droughts for areas, including Colorado, and, by the way, including my own State of Arizona. That money is needed. It is needed. We are having wildfires across the Southwest and the West in an unprecedented fashion because we are in severe drought, and I want that money for the Department of Agriculture's Emergency Watershed Protection Program. But it has nothing to do with Hurricane Sandy. That is what is wrong with this bill. I will fight for the $125 million that would help my State of Arizona, and I will fight to find ways to pay for it. I will do both. But we are including $125 million for the Department of Agriculture's Emergency Watershed Protection Program, which is several hundred miles away from the path of Hurricane Sandy.

There is $20 million for a nationwide Water Resources Priorities Study. While studies are important, they are not emergencies and should be submitted during the upcoming budget debate.

We badly need a water resources priorities study. There was just a recent study about the Colorado River basin and how we are going to run out of water. But, again, the water resources priorities study is not associated with Hurricane Sandy.

There is $15 million for NASA facilities, though NASA itself has called its damage from the hurricane minimal. One day after the storm hit, NASA's Wallops Island put out a statement stating that ``an initial assessment team surveyed roads and facilities at NASA's Wallops Flight Facility today reporting a number of downed trees but otherwise minimal impact in the wake of Hurricane Sandy.'' Does this mean we need $15 million for NASA's facilities?

There is $336 million for taxpayer-supported Amtrak without a detailed plan for how the money will be spent. Some of the funding will go for repairs. Money will also go to increasing capacity and future mitigation efforts. Amtrak is up and running. We can go right over here--not very far from here--to Union Station and get on Amtrak. It is not apparent why this funding is deemed ``emergency'' spending and included in this spending package. Further mitigation should be debated next year.

The dirty little secret is that Amtrak loses billions of dollars every year. That is because we subsidize unneeded and unnecessary routes. The route on the east coast from here to New York, for example, makes money. But we cling to those routes that neither make money nor does anybody care to patronize.

There is $5.3 billion for the Army Corps of Engineers--more than the Army Corps of Engineers' annual budget. With no clarity as to how the money will be spent. Included in the Senate bill is $50 million in funding for more studies, which will most definitely lead to additional Army Corps projects and a new task force established by executive order.

More projects are not something the Army Corps can handle. They are currently experiencing a backlog of construction and maintenance projects of approximately $70 billion. Furthermore, a 2010 report released by the Government Accountability Office noted that carryover funds have increased ``due to the large amount of supplemental funding the Corps has received in recent years.'' Clearly, supplemental spending on the Army Corps has not paid off.

The bill includes $12 to $13 billion for future disaster mitigation activities and studies, without identifying a single way to pay for it. I think we need future disaster mitigation activities. We need studies. We are experiencing climate situations which we never anticipated. Certainly Hurricane Sandy was never anticipated by any of us. We need the studies. But that is not an emergency to handle the effects of Hurricane Sandy and should come out of normal funding and be paid for. I support these studies. But should they come out of the taxpayers' pocket without a way to pay for it?

There is no justification to include these projects in this emergency spending bill. Waiting to fund these projects until next year during the normal budget and appropriations process, we will have a better understanding of the path forward and reduce the possibility of waste, fraud, and abuse.

There is $10 million to improve weather forecasting capabilities and infrastructure. Mr. President, $10 million to improve weather forecasting capabilities and infrastructure--do we truly need to include that in an emergency funding bill for Hurricane Sandy? As I mentioned at the beginning, at some point we are going to have to start paying for things. At some point we are going to run out of Chinese money. At some point we are going to be like Greece. At some point the American people are going to say ``enough.'' Every American family has to balance their budget. Every American family has to make tough decisions. Why don't we make some tough decisions if we want to have things paid for such as weather capabilities, such as Amtrak, such as replacing Federal assets, buying vehicles when we have 660,000 vehicles in the inventory? Why don't we start making tough decisions?

I often mention that the approval rating we have from the American people is rather interestingly low. The last one I saw was an 11- percent approval rating. No wonder--no wonder--we are about, in a matter of literally hours, to spend about $60 billion of the American taxpayers' money--estimates by some are it should be around $24 billion--without hearings, without the kinds of

scrutiny it deserves in the normal appropriations process.

I understand why we need some of this money in an emergency fashion. But it is akin to the train leaving the station. It is loaded with pork and it is moving and so everybody wants to get on board. It is not the way the Congress should do business.

So, Mr. President, I will ask for the yeas and nays on my amendment, which is to strike funding for $58 million for the tree planting subsidy known as the Forest Restoration Program for planting trees on private property.

I am asking for the yeas and nays.

OK. Then I suggest the absence of a quorum.

Mr. President, I object.

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

Mr. President, I ask for the yeas and nays on my amendment.

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

Thank you, Mr. Chairman.

Mr. Speaker, I am delighted to join the chairman of the full committee and the ranking member of the full committee in this vigorous debate on the Constitution. I am also delighted that the ranking member has indicated, by his reference to the previous speaker, that this is a bipartisan challenge and question about the reauthorization. This does not have a partisan place. It does have a place in the Constitution.

As I do this, might I take just a moment, Mr. Chairman and Mr. Ranking Member, just to acknowledge the loss of our Americans who fell in Libya--Ambassador Stevens and those who were securing him. It is a recognition that we live in a difficult world; but one of the distinctive aspects of America is that we live in a free country, that we are willing to accept the distinctions and differences of all people and that we respect the privacy and the Fourth Amendment.

So I might refresh my fellow colleagues as to what FISA does from the very beginning. It is electronic surveillance, physical searches, the installation and use of pen registers and trap-and-trace devices, and demands for the production of physical items. Although FISA is designed for intelligence gathering and not for the collection of criminal evidence, the law applies to activity to which a Fourth Amendment warrant requirement would apply if they were conducted in a criminal investigation. Members need to understand there are questions of the Fourth Amendment right here. So what those of us who have a concern on this reauthorization are asking for has simple premise:

We want to join with Congressman Conyers and his simple amendment that allows for greater congressional oversight and the protection of the Fourth Amendment as it relates to Americans by shortening the reauthorization to 2015 from 2017. It intrudes the Congress properly in oversight. In addition, there should be more transparency in the surveillance program, such as requiring the creation of unclassified versions of the intelligence assessments of the surveillance program, requiring the creation of unclassified summaries.

I introduced a simple amendment. We all have respect for the Inspector General's office. That is one independent force of our agencies that most Members of Congress will not challenge. My amendment would require a report by the Inspector General of the Department of Justice and the Inspector General of the intelligence community on the implementation of the surveillance program under the FISA Amendments Act of 2008.

Now, let me try to find out what the horrifically liberal groups are that are concerned about this. What about the American Library Association? the Association of Research Libraries? the very well- respected Brennan Center for Justice? the Center for Democracy & Technology? the OpenTheGovernment .org?

What we are simply saying today--and we hope our colleagues will listen on both sides of the aisle--is that, yes, we can reauthorize this legislation but that, no, we cannot abdicate the questions of congressional oversight. Today, we had a hearing on the abuse of power. The only issue in abuse of power is whether or not we respect the three branches of government. That is the argument we are making today. Do you respect the three branches of government--the people's House, who represent the people, who by themselves cannot defend themselves against this extensive reauthorization?

In the course of this particular legislation, we had to contend with such things as warrantless wiretapping. Again, as I indicated, the need for the intruding of the Congress is a respect of the liberties which we want to protect.

So I would ask my colleagues to yield to transparency, to yield to a shorter extension. Make this bill stand on its own two feet juxtaposed to the Constitution. While we mourn those who have fallen, we respect that this is a free country. Today, we are not acting on that freedom by giving up the congressional oversight that is necessary. I ask my colleagues to reject the present form of this bill. I beg the Senate to look more readily at a shorter extension and more transparency.

I rise in opposition to the FISA Amendments Act of 2008. I believe that although we had a chance to discuss this reauthorization in the Judiciary Committee, the full import of this bill is too broad and more debate and consideration is necessary. The fact is not lost on me that this is the 11th year following the attacks of 9-11.

I open my statement with a quote from one of my heroines, and a trailblazer on so many levels, Barbara Jordan, who said: ``What the people want is very simple--they want an America as good as its promise.''

Over the past year, Senate and House Democrats have worked with their Republican counterparts, the Administration, the intelligence community, and privacy advocates to

develop proposals for amendments to FISA that would give the intelligence community the flexibility it needs to safeguard our nation, while also providing strong protections for civil liberties. A proper balancing is America--as good as its promise.

And in-keeping with the notion of balance, I offered an amendment during the Judiciary Committee Markup of this legislation which simply asked for a report on the implementation of the amendments made by the FISA Amendments Act of 2008. My amendment simply requested that the report include an assessment of the impact of Section 702 of the FISA on the privacy of persons inside the United States. Even with court- approved targeting and minimization procedures in place, the government can and does intercept the communications of U.S. citizens.

It does so without a particularized warrant or a showing of probable cause. This approach to electronic surveillance raises concerns under the Fourth Amendment, which prohibits unreasonable searches, warrantless eavesdropping, and the use of ``general warrants.''

The Fourth Amendment to the U.S. Constitution provides a right ``of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.'' Many of the government activities discussed in this report have the potential to constitute a search as that term is defined in Fourth Amendment jurisprudence.

Namely, government action constitutes a search when it intrudes upon a person's ``reasonable expectation of privacy,'' which requires both that an ``individual manifested a subjective expectation of privacy in the searched object'' and that ``society is willing to recognize that expectation as reasonable.''

The Fourth Amendment and its protections go back to our founding--the ability of the American Patriots to resist unwarranted searches and seizures by the British is inculcated in the American psyche.

Thus, the Fourth Amendment ultimately limits the government's ability to conduct a range of activities, such as physical searches of homes or offices and listening to phone conversations. As a general rule, the Fourth Amendment requires the government to demonstrate ``probable cause'' and obtain a warrant (unless a recognized warrant exception applies) before conducting a search.

This rule applies most clearly in criminal investigations. For example, an officer conducting a criminal investigation typically may not search a person's belongings without first obtaining a warrant that describes the property for which sufficient evidence justifies a search.

The extent to which the Fourth Amendment warrant requirement applies to the government's collection of information for intelligence gathering and other purposes unrelated to criminal investigations is unclear. Although the surveillance of wire or oral communications for criminal law enforcement purposes was held to be subject to the warrant requirement of the Fourth Amendment in 1967, neither the Supreme Court nor Congress sought to regulate the use of such surveillance for national security purposes at that time.

Several years later, the Supreme Court invalidated warrantless electronic surveillance of domestic organizations for national security purposes, but indicated that its conclusion might differ if the electronic surveillance targeted foreign powers or their agents. A lower court has since upheld the statutory scheme governing the gathering of foreign intelligence information against a Fourth Amendment challenge, despite an assumption that orders issued pursuant to the statute might not constitute ``warrants'' for Fourth Amendment purposes.

The Supreme Court has not yet directly addressed the issue. However, even if the warrant requirement was found not to apply to searches for foreign intelligence or national security purposes, such searches would presumably be subject to the general Fourth Amendment ``reasonableness'' test.

In the context of national security, the contours of the Fourth Amendment are necessarily narrowed but not abandoned altogether. The march toward a Big Brother State begins when the people's rights to privacy and to be free from surveillance are surrendered in toto. All we have to do is look at the recent Jones decision which concerned a purely domestic case in which law enforcement took advantage of high- tech tools to follow a suspected drug dealer. A conservative Roberts Court voted 9-0 to invalidate this search.

It is rare for liberal Democrats and conservative Republicans to agree on much of anything these days, but I am sure that many of my colleagues on the other side would find untargeted procedures under FISA unlawful and thereby unconstitutional. Homeland security is not a Democratic or a Republican issue, it is not a House or Senate issue; it is an issue for all Americans--all of us need to be secure in our homes, secure in our thoughts, and secure in our communications.

It is widely known that the Obama Administration would like a clean, five year reauthorization of the FISA Amendments Act, consistent with the approach taken by the Senate Select Committee on Intelligence this spring. I would also note that there were two voices of dissent in the Senate committee's proceedings, Senators Wyden and Udall who have been champions of national security, privacy, and civil liberties--which are not mutually exclusive.

The FISA Amendments Act of 2008 was designed to provide critically important authority for the U.S. Intelligence Community to acquire foreign intelligence information by targeting foreign persons reasonably believed to be outside of the United States. However, our experts now tell us that there are serious issues with targeting procedures, disclosure of basic information and there is a lack of strong rules on how the information gathered can be used.

``Reverse targeting,'' a concept well known to members of this Committee but not so well understood by those less steeped in the arcana of electronic surveillance, is the practice where the government targets foreigners without a warrant while its actual purpose is to collect information on certain U.S. persons.

One of the major concerns that libertarians and classical conservatives, as well as progressives and civil liberties organizations, had with the ill-conceived and now expired Protect America Act of 2007, was that the understandable temptation of national security agencies to engage in reverse targeting is difficult to resist in the absence of strong safeguards to prevent such unauthorized and blanket snooping.

Although Section 1881 of the FISA Amendments Act statutorily forbids such reverse targeting, it is a lingering concern of many civil libertarians which I share.

No doubt there are instances where it may be necessary to target persons within and outside the United States in order to address threats but Congress has made it clear that these exigencies must be subject to review at some point and time.

On the issue of targeting procedures, they were designed to ensure that only people reasonably believed to be outside of the U.S. would be targeted. However, in reality quite the contrary has taken place. There has been bulk collection of information without any targets whatsoever. Ensure transparency by conducting as much public oversight as possible, including releasing basic information about the program, such as the type of information collected and how many Americans and people in the U.S. it has affected.

It is also critical that Foreign Intelligence Surveillance Court opinions and administration interpretations of its authority to collect and use information under the FISA Amendment Act (FAA) become part of the public record and congressional debate.

On the issue of disclosure, there has been a lack of transparency on what type of information is being gathered, who is being picked up and what rights of Americans have been violated.

We must strike a balance between what constitutes ``classified'' information, and other compelling facts, disclosure of which do not threaten national security.

On the issue of rules, there has been a lack of rules that clearly define how the information is being used. The key is to amend the FISA Amendment Act to ensure that information collected under those programs can be used only in the narrowest of circumstances. The FAA's minimization procedures should be amended to ensure that this foreign intelligence warrantless surveillance program doesn't allow information to be repurposed for other government uses.

I understand that there must be a way for the intelligence community to gather vast amounts of information in a manner that makes sense. However, after carefully reviewing these proposals but suffice to say, I am still disturbed about certain aspects of the FISA Amendments of 2008. This Act was not designed for an overreach of power. It was designed to for the intelligence community to conduct meaningful information overseas.

Nearly two centuries ago, Alexis DeTocqueville, who remains the most astute student of American democracy, observed that the reason democracies invariably prevail in any martial conflict is because democracy is the governmental form that best rewards and encourages those traits that are indispensable to martial success: initiative, innovation, resourcefulness, and courage.

Thus, the way forward to victory in the War on Terror is for this country to redouble its commitment to the Bill of Rights and the democratic values which every American will risk his or her life to defend. It is only by preserving our attachment to these cherished values that America will remain forever the home of the free, the land of the brave, and the country we love. It is not easy for me or any Member of this House to go against the President's wishes on a matter of national security but I am convinced that more debate is necessary, and more consideration of what the FISA Amendments mean to national security and civil liberties.

We are in the throes of a national election for which the candidates have labored for over two years and the American people have seen, for better or worse, what they are about. Why so long: because that is Democracy. And civil liberties, Mr. Speaker, are the essence of the stew of our American Democracy.

I hope that Congress can maintain our oversight function to ensure that law enforcement is well aware of their limitations of surveillance balanced by a strong commitment to protecting this great nation from future harm, and limiting the reauthorization to 2015.