Floor Statements

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

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

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

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

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

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

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

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

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

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

But was it illegal?

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

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

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

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

Under a presidential order signed in 2002, the [National

Security Agency] has monitored the international telephone

calls and international e-mail messages of hundreds, perhaps

thousands, of people inside the United States without

warrants over the past three years.

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

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

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

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

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

I can state categorically that the subject of warrantless

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

confident that the 98 senators who voted in favor of

authorization of force against al-Qaida did not believe that

they

were also voting for warrantless domestic surveillance.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Does that sound familiar to any of my colleagues?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The critical question before the Committee was to determine

how the fundamental liberties of the people can be maintained

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

security. The delicate balance between these basic goals of

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

can, and must, be achieved.

We reject the view that the traditional American principles

of justice and fair play have no place in our struggle

against the enemies of freedom. Moreover, our investigation

has established that the targets of intelligence activity

have ranged far beyond persons who could properly be

characterized as enemies of freedom. . . .

We have seen segments of our Government, in their attitudes

and action, adopt tactics unworthy of a democracy, and

occasionally reminiscent of the tactics of totalitarian

regimes.

We have seen a consistent pattern in which programs

initiated with limited goals, such as preventing criminal

violence or identifying foreign spies, were expanded to what

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

information about lawful activities of American citizens.

The Senators of the Church Commission concluded:

Unless new and tighter controls are established by

legislation, domestic intelligence activities threaten to

undermine our democratic society and fundamentally alter its

nature.

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

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

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

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

The engagement of all three branches tends to yield not

just more thoughtful law, but a more broadly supported public

policy.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

the court recognizes and respects the executive's

constitutional duty to protect the nation from threats, the

court also takes seriously its constitutional duty to

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

blanket assertion of secrecy here would be to abdicate that

duty, particularly because the very subject matter of this

litigation has been so publicly aired.

The compromise between liberty and security remains a

difficult one. But dismissing this case at the outset would

sacrifice liberty for no apparent enhancement of security.

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

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

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

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

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

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

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

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

Here's how Mike McConnell put it:

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

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

liability protection to these private sector entities.

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

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

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

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

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

percent, boosted by the acquisition of BellSouth and the

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

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

a year ago.

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

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

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

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

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

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

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

Consider this. According to the Electronic Frontier Foundation,

Clear, first-hand whistleblower documentary evidence

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

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

optic links of sixteen separate companies routed through

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

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

their entirety by AT&T and knowingly diverted wholesale by

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

exclusively by the NSA.

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

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

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

AT&T cannot seriously contend that a reasonable entity in

its position could have believed that the alleged domestic

dragnet was legal.

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

I believe that they deserve immunity from lawsuits out

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

into the pockets of American companies.

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

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

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

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

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

lawyers worked in those big fancy firms for big fancy

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

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

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

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

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

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

making far less than they could on the open market in

exchange for being able to work in things they believe in

every day.

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

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

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

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

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

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

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

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

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

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

As Benjamin Franklin said some 200 years ago:

Those who would sacrifice liberty for security deserve

neither security nor liberty.

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

Mr. President, I yield the floor.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mr. President, will my colleague yield?

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

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

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

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

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

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

So I commend my colleague for his words.

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

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

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

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

Fine.

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

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

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

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

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

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

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

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

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

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

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

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

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

Second, the Intelligence Committee bill fails to protect American citizens

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

Admiral McConnell said:

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

Fourth Amendment.

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

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

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

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

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

It would be authorized, if it were physically possible to

do so.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I withhold the remainder of my time.

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

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

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

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

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

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

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

For 5 years, the Bush administration's National Security

Agency, with the help of the country's largest

telecommunication companies, has been collecting your e-mail,

accumulating information on your web browser, and gathering

details on your Internet activity, all without warrants and

in violation of the United States constitution and several

Federal statutes and State laws. Even after the program was

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

President and other government officials consistently

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

collects communications into or from the United States where

one party to the communication is someone they believe to be

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

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

because I have firsthand knowledge of the clandestine

collaboration between one giant telecommunications company

and the NSA to facilitate the most comprehensive spying

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

surveillance infrastructure with my own eyes. It is a vast

government-sponsored warrantless spying program. For over 22

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

San Francisco in 2002, I learned that a management level

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

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

and maintenance of Internet equipment in a newly constructed

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

than the NSA cleared technician, no employees were allowed

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

that office and was in particular assigned to oversee

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

connect circuits carrying data to optical splitters, which

made a copy of the light signal. But the splitters

weakened the light signal causing problems I had to

troubleshoot. After examining engineering documents given

to the technicians which showed the connections of the

splitters, I discovered they were hard wired to a secret

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

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

web browsers, voice-over-Internet phone conversations,

everything, was being diverted to equipment inside the

secret room. In addition, the documents revealed the

technological gear used in their secret project, including

a highly sophisticated search component capable of quickly

sifting through huge amounts of digital data, including

text, voice, and images in real time according to

preprogrammed criteria. It is important to understand that

the Internet links connected to the splitters contained

not just foreign communications but vast amounts of

domestic traffic, all mixed together. Furthermore, the

splitter has no selectively abilities. It is just a dumb

device which copies everything to the secret room, and the

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

connections to many other Internet providers--Sprint,

Quest, Global Crossing, cable and wireless, and the

critical West Coast exchange point known as Mae West.

Since these networks are interconnected, the government

surveillance affects not only AT&T customer matters but

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

my conversations with other technicians that other secret

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

and San Diego. One of the documents I obtained also

mentions Atlanta, and the clear inference and the logic of

this setup and the language of the documents is that there

are other such rooms across the country to complete the

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

government's extensive wiretapping program surfaced in

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

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

spying effort that violated the rights of millions of

Americans; and, second, that the government was not

telling the public the truth about the extent of their

unconstitutional invasion of privacy. In the spring of

2006, I became a witness for the Electronic Frontier

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

April 13, 2006, reported that four independent technical

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

documents showed that AT&T had an agreement with the

Federal Government to systematically gather information

flowing on the Internet.

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

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

I am a telecommunications and data networking expert who

has been involved in the development of several critical

Internet technologies. I was a professor of electrical

engineering at Stanford University and in computer science at

Carnegie-Mellon university west. I have carefully reviewed

the AT&T authenticated documents and declaration provided by

Mark Klein and the public redacted version of the expert

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

AT&T litigation. Provided the information contained in those

declarations and documents, with my extensive knowledge of

the international communications infrastructure and the

technology regularly used for lawful surveillance pursuant to

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

strongly supported of widespread untargeted surveillance of

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

documents describe a technological setup at the AT&T facility

in San Francisco. This setup is particularly well suited to

wholesale dragnet surveillance of all communications passing

through that facility, whether international or domestic.

These documents describe how the fiber-optic cables were cut

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

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

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

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

to a monitoring station, that station sees all traffic going

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

into a room at the facility whose access was restricted to

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

indicate that similar facilities were being installed in

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

reference to a somewhat similar facility in Atlanta. This

infrastructure is capable of monitoring all traffic passing

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

customers, whether voice or data or fax or international or

domestic. The most likely use of this infrastructure is

wholesale untargeted surveillance of ordinary Americans at

the behest of the NSA. NSA involvement undermines arguments

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

own network operations. This infrastructure is not limited

to, nor would it be, especially efficient for target

surveillance or even untargeted surveillance aimed at

communications where one of the ends is located outside of

the United States. It is also not reasonably aimed at

supporting AT&T operations in security procedures. There are

three main reasons. The technological infrastructure is far

more powerful and expensive than that needed to do targeted

surveillance or surveillance aimed only at international or

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

NARUS Norris 6400, a computer that can simultaneously analyze

huge amounts of information based on rules provided by the

machine operator, analyze the content of messages and other

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

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

correlate information for multiple sources, multiple formats,

over many protocols and through different periods of time in

that analysis. The document describes a secret private

backbone network, separate

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

carried and transmitted. A separate backbone network would

not be required for transmission of the smaller amounts of

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

the magnitude of capacity doing targeted surveillance. The

San Francisco facility is not located near an entry point

for international communications that happen to be

transmitted through the United States, either through

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

be a sensible place to locate a facility aimed at simply

monitoring traffic to or from northern countries.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

As Judge Walker said:

The Government has already disclosed the general contours

of the Terrorist Surveillance Program, which requires the

assistance of a telecommunications provider.

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

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

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

That AT&T cannot seriously contend that a reasonable entity

in its position could have believed that the alleged domestic

dragnet was legal.

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

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

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

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

Third quarter earnings rose 41.5 percent. Boosted by the

acquisition of BellSouth and the addition of 2 million net

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

compared with $2.17 billion a year ago.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Americans have rightfully been concerned since before World

War II about the dangers of hostile foreign agents likely to

commit acts of espionage. Similarly, the violent acts of

political terrorists can seriously endanger the rights of

Americans. Carefully focused intelligence investigations can

help prevent such acts.

But too often intelligence has lost this focus and domestic

intelligence activities have invaded individual privacy and

violated the rights of lawful assembly and political

expression. Unless new and tighter controls are established

by legislation, domestic intelligence activities threaten to

undermine our democratic society and fundamentally alter its

nature.

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

Mr. President, I ask unanimous consent that there now be a period of morning business with Senators permitted to speak therein for up to 10 minutes each.

I ask unanimous consent that Ben Weingrod and Ryan Kehmma of my staff be granted the privilege of the floor for the duration of the debate on the FISA legislation.

Mr. President, I ask unanimous consent that the Chair lay before the Senate a message from the House with respect to H.R. 797, the Veterans Vision Impairment.

The Presiding Officer (Mr. Sanders) laid before the Senate the following message:

Mr. President, I ask unanimous consent that the Senate concur in the House amendments to the Senate amendment, and the motion to reconsider be laid upon the table.

Mr. President, I ask unanimous consent that the Senate proceed to the immediate consideration of Calendar No. 515, H.R. 3703.

Mr. President, I ask unanimous consent that the bill be read the third time, passed, and the motion to reconsider be laid upon the table, and that any statements relating to the bill be printed in the Record.

Mr. President, I ask unanimous consent that the Senate proceed to the immediate consideration of Calendar No. 537, S. 781.

Mr. President, I ask unanimous consent that the committee- reported amendment be considered and agreed to, the bill as amended be read a third time, passed, and the motion to reconsider be laid upon the table, and that any statements relating thereto be printed in the Record.

Mr. President, I ask unanimous consent that the Senate proceed to the immediate consideration of Calendar No. 539, S. 2096.

I ask unanimous consent that the amendment at the desk be considered and agreed to; the committee-reported amendment, as amended, be agreed to; the bill, as amended, be read a third time, passed, the motion to reconsider be laid upon the table, and that any statements related thereto be printed in the Record.

I ask unanimous consent that the Judiciary Committee be discharged from further consideration of H.R. 660, and the Senate proceed to its immediate consideration.

I ask unanimous consent that a Leahy substitute amendment at the desk be agreed to; the bill, as amended, be read a third time and passed; the motions to reconsider be laid upon the table with no intervening action or debate, and any statements related to the bill be printed in the Record.

Mr. President, I ask unanimous consent that the Senate proceed to the immediate consideration of H.R. 3690, just received from the House and at the desk.

I ask unanimous consent that the amendment at the desk be considered and agreed to; the bill, as amended, be read a third time, passed, and the motion to reconsider be laid upon the table; that any statements relating to the bill be printed in the Record without further intervening action or debate.

Mr. President, I ask unanimous consent that the Senate proceed to the immediate consideration of Calendar No. 541, S. Res. 388.

Mr. President, I ask unanimous consent that the resolution be agreed to, the preamble be agreed to, the motions to reconsider be laid upon the table, and that any statements relating to the resolution be printed in the Record.

Mr. President, I ask unanimous consent that the Judiciary Committee be discharged from further consideration of H. Con. Res. 264, and that the Senate then proceed to its immediate consideration.

Mr. President, I ask unanimous consent that the concurrent resolution be agreed to, the preamble be agreed to, the motions to reconsider be laid upon the table; that any statements relating thereto be printed in the Record.

Mr. President, I ask unanimous consent that the Senate proceed to the immediate consideration of S. Res. 407, submitted earlier today.

Mr. President, I ask unanimous consent that the resolution be agreed to, and the motion to reconsider be laid upon the table en bloc; that any statements relating thereto be printed in the Record.

Mr. President, I ask unanimous consent that the Senate now proceed to the consideration of S. Res. 408 which was submitted earlier today.

Mr. President, I ask unanimous consent that the resolution be agreed to, the preamble be agreed to, and the motion to reconsider be laid upon the table.

Mr. President, I ask unanimous consent that when the Senate completes its business today, it stand adjourned until 10 a.m. Tuesday, December 18; that on Tuesday, following the prayer and pledge, the Journal of proceedings be approved to date, the morning hour be deemed expired, the time for the two leaders reserved for their use later in the day, and that there be a period of morning business for 90 minutes, with the time equally divided and controlled between the two leaders or their designees; that Senators be permitted to speak therein for up to 10 minutes each; that on Tuesday, the Senate stand in recess from 12:30 p.m. to 2:15 p.m. in order to accommodate the respective party conference meetings; that the motion to proceed to S. 2248 be adopted once this consent is granted and that all time postcloture be considered yielded back.

Mr. President, I would like to announce on behalf of the leader it is his intent to consider the House message on H.R. 2764, the State, Foreign Operations Appropriations Act.