Floor Statements

Mr. President, I ask unanimous consent to speak on my time, followed immediately by Senator Hatch, who will speak for 10 minutes, and that my remaining time be reserved after that.

The request was that I speak on my time and that Senator Hatch be given 10 minutes.

No. That is off of my time.

How long will Senator Feingold speak?

Responding to the distinguished leader, Senator Hatch had to leave a Judiciary Committee hearing. He was only going to speak 10 minutes. And I am going to be about 10 minutes.

Mr. President, I thank the distinguished leader who has done a remarkable job of helping us to get to this point in what has been, let us say, a challenging 15-month debate. And I concur with him in the very kind and generous words he said about my friend and colleague, the chairman of the committee, Senator Rockefeller.

I expressed my appreciation to the Republican leader for his very kind words, and I agree with him that it is absolutely essential that we defeat these amendments today. But, finally, after sporadic filibuster attempts over a period of 15 months by several Members, Members whom I respect for their tenacity and conviction in this matter, we are poised today to conclude work on the FISA Amendments Act of 2008.

Yesterday I detailed my views on aspects of this legislation, and I walked through six tweaks to the legislation that were made to the bipartisan Senate bill that the Senate passed in February, earlier this year, that have resulted in the bill before us today.

I am happy that the tweaks to the bill did not change the bill much. I am proud to negotiate with the House to bring back to the Senate essentially the same bipartisan bill today that both the chairman and I crafted with the help of an overwhelming bipartisan majority of our Intelligence Committee.

This ensured that today we have a major bipartisan victory of which all sides can be proud, exemplifying what can be accomplished in Washington when there is bipartisan negotiation.

I thank all of those who worked so hard to bring us to the cusp of sending this legislation to the President. I appreciate the hard work of House Majority Leader Steny Hoyer, who was critical in the House; Republican Whip Roy Blunt, and Congressmen Pete Hoekstra and Lamar Smith, as well as the efforts of my colleagues in the Senate, Senators Orrin Hatch, Saxby Chambliss, Senate Republican Leader Mitch McConnell, and Chairman Rockefeller for his strong support and leadership.

Further, we could not be here today without the hard work of staff, from the House, Jen Stewart from House Minority Leader Boehner's office; Brian Diffel from House Minority Whip Blunt's office; Chris Donesa from Mr. Hoekstra's office; Caroline Lynch from Mr. Smith's office; Mariah Sixkiller with the House Majority Leader's office; and Jeremy Bash from Mr. Reyes' office, along with an assortment and large number of deputies and others who assisted them in producing the language that their Members would support.

As to my own staff, I thank my staff director Louis Tucker and staffer Jacqui Russell from the Intelligence Committee; a very special thanks to two FISA counsels, Jack Livingston and Kathleen Rice, who brought invaluable expertise into this process as lawyers who participated in the FISA process from the executive branch perspective while working in the FBI.

Thanks to Senator Rockefeller's counsels, Mike Davidson, Christine Healey, and Alissa Starzak, as well as to Jesse Baker with Senator Hatch; to Tom Hawkins and John Abegg with Leader McConnell's office; and to the many other staff who helped make this happen, too many to name now in the short time we have before we vote on the upcoming amendments.

I believe it is necessary to reinforce a few points that Senator Rockefeller and I made yesterday in urging our colleagues to defeat the three amendments before us that would kill this bill by altering the title II liability protections, and potentially putting us in the disastrous situation we faced a year ago.

First, yesterday we heard from supporters of these amendments that decimating the title II civil liability protections for our telecommunications providers would have no effect on the title I portion of the bill that modernizes FISA collection methodologies because title I contains directives that are enforceable by court order.

Such statements demonstrate a lack of understanding about the intelligence community's dependence upon our third-party partners. We know from our experience when the Protect America Act expired in February that is simply not the case. We lost days' worth of intelligence while the partners ceased cooperating momentarily until they were assured that authorizations and corresponding immunity tie would last until August. If we do not have their voluntary cooperation by giving them liability protection, then it is much harder and we get much less in trying to compel them.

Second, we heard yesterday that it is ``bad lawyering'' to apply the substantial evidence standard to the title II liability. The Senate's bill had an abuse of discretion standard for title II liability, which I believe was the appropriate standard, but House Democrats offered this other standard.

It is an appellate standard, not a factual standard, as my colleague from

Rhode Island asserted yesterday. The court will not be holding a trial or hearing from witnesses. There is no adversarial process in the true sense of the word. These steps and safeguards are necessary to ensure that our intelligence sources and methods remain protected.

Third, while my colleague from Rhode Island asserted that the TSP is a cause for deep anger at the administration, I submit that deep anger should be redirected away from tearing down experienced, dedicated American officials and toward tearing down our foreign enemies who are intent on destroying our Nation and our way of life.

The TSP enabled our intelligence community to prevent further attacks on our homeland, and I and the leaders of the intelligence community believe it is the key reason why we have not been attacked for nearly 7 years since September 11.

Despite what some far-left editorial writers say, the TSP only allowed warrantless interception of phone calls from terrorists reasonably believed to be overseas.

Intercepts of Americans and other U.S. persons in the United States required a warrant from the FISA Court.

To suggest yesterday, as was suggested on the floor, that it enabled collection of communications among innocent American citizens is flat wrong. The bill before us will keep us safe and protect civil liberties. So it should not be a moment of anger but, rather, one of bipartisanship and pride that we worked together to produce the best legislation possible to keep America safe and to protect her rights further.

Others assert that leaking the program was good. Well, I dispute that. The intelligence agencies noticed a significant drop in collection when the terrorists found out we could listen in on them. The CIA Director, at his confirmation hearing, when I asked him how badly the intelligence community had been hurt, said: We are applying the Darwinian theory to terrorists; we are only intercepting the dumb ones.

Both Democratic and Republican leaders were read in on this program early on, the Big Eight, and had the opportunity through congressional options to delay or scrutinize the program, if necessary.

I understand they advised the administration it would take too long to go through the legislative process to modernize FISA. From what I have seen over the past 15 months in how long it has taken us to get here today, that seems to have been very good advice.

My colleague from Pennsylvania asserted earlier that only 30 Senators have been read in. But the chairman did a little quick math and said 37 have been read in. It is unusual to have more than one-third of the Senate briefed on some of our most sensitive intelligence collection strategy.

Oversight of these areas is why the Senate created the Senate Select Committee on Intelligence. We on the committee oversee hundreds of programs that the rest of our colleagues know little about. And even though we invite them over for briefings, they usually have too many other responsibilities to have time to accept our invitation.

Finally, my colleague from Pennsylvania asserted we do not know what we are granting immunity for, and only courts can decide that matter. That is simply not true. The committee's bipartisan review makes it clear to whom retroactive civil liability protection is being granted. And the courts are not the appropriate standard to make those judgments.

The Senator's statements clearly indicated that he wants to challenge the Government, the President's use of the TSP. Well, we do not block suits against the Government, against Government employees or officials. It would be unfair and potentially disastrous to use the patriotic electronic carriers as punching bags to try to get at the administration. That will destroy our intelligence community's ability to collect with their assistance, and it would potentially lead to a serious gap in the program. It would put the people of the collecting agencies at great risk, civilians who do not go into battle with protection, with gear and with training.

That is an absolutely outrageous assertion that they should be willing to undergo the hazards of war in matters of national security. It is appropriate and imperative that the oversight committees act as they have in reporting such legislation to the entire body.

My friend repeatedly inquired if Congress had ever done anything such as this before. But, in fact, we only need to look back to 2005 when Congress passed the Protection of Lawful Commerce in Arms Act. It essentially granted immunity to gun manufacturers, distributors, dealers, and others against lawsuits seeking money damages and other relief for harm caused by misuse of firearms.

It still allowed those defendants to be sued for their own negligence, violation of sale and marketing statute, breach of contract or warranty, design defect, et cetera. The immunity provision was held to be constitutional, not a violation of due process, equal protection, or takings, in Ileto v. Glock, a 2006 California court case. So beyond the rhetoric in opposition to the legislation before us, I believe Senators need to take a fair look at what is before us today.

I strongly encourage my colleagues to vote down the three amendments before us and to support this bill. This bill gives our intelligence operators and law enforcement officials the tools they need to conduct surveillance on foreign terrorists in foreign countries planning to conduct attacks inside the United States against our troops and allies. It is the balance we need to protect our civil liberties without handcuffing intelligence professionals. Let's do the right thing, pass this bill without amendments.

I yield the floor.

Off Senator Feingold's time.

Mr. President, how much time do I have?

I yield a minute and a half to my distinguished colleague from Florida.

Mr. President, I thank the distinguished Senator from Florida, who has been a hard-working member of the Intelligence Committee and has been a great contributor. I am sorry he does not agree with the compromise we reached with the House to have the district courts make a review. I think that is important. That satisfies our needs.

Several points made on the floor today and previously need to be answered. It has been said that the new surveillance powers allow the Government to collect all communications between the United States and the rest of the world, millions and millions of communications between innocent Americans, parents calling children

abroad, people serving in Iraq. There is no prohibition on reverse targeting.

A plain reading of the bill shows us that this statement is simply inaccurate. As the Senator from Utah said earlier today: Unless you have al-Qaida on your speed dial, you are not going to be collected against. There are safeguards in place to ensure that any conversations that do not have foreign intelligence information will not be kept or shared, they will be minimized or suppressed.

Americans either inside or outside the United States may not be targeted without court order. That ``outside of the U.S.'' protection was something we added on a bipartisan basis in the Senate Intelligence Committee.

In addition to approving any collection against Americans, anybody in the United States, an American overseas, the FISA Court will review all procedures used to target foreign communications and make sure that communications with innocent Americans are minimized or suppressed.

As far as reverse targeting goes, I refer my colleagues to section 702(B) of the bill which says:

An acquisition authorized under subsection 8 may not

intentionally target a person reasonably believed to be

located outside the United States if the purpose of such

acquisition is to target a particular known person reasonably

believed to be in the United States.

I can assure you that I and other members of the Intelligence Committee have reviewed the procedures, have seen the operations, know the supervision, and know the very tight constraints under which these professionals operate. They are overseen by supervisors, by higher level authorities, by inspectors general, by lawyers, their own lawyers, and lawyers from the Department of Justice. Somebody made an error and collected some criminal information a year or so ago and that was dealt with appropriately. There is no ability for somebody, even a rogue who happens to get in, to get away with targeting innocent American communications.

There has been a lot of debate also about the Senators having access to all of the information. As I pointed out earlier, we set up the Senate Select Committee on Intelligence to provide the most highly classified information to members of the committee. I have worked hard with the chairman, and we have opened to the full Intelligence Committee far more information than we ever got before, because I believe the Intelligence Committee has a heavy responsibility to make sure that what is being done stays within the law, stays within the guidelines, and protects the rights of American citizens.

But if you say that every intelligence matter should be briefed to the entire Congress, where does that stop? Should we then brief the New York Times directly so they can publish a story and decide whether the intelligence activity is acceptable? I think not. I think we have seen the problems that occur when leaks have compromised our intelligence. They have done it too often.

Some people still want to debate the legality of the TSP, saying it is blatantly illegal. Well, they persist in their belief that the President lacks the constitutional authority to conduct warrantless foreign intelligence surveillance, even though article II has not changed in over 200 years.

The FISA Court itself, en banc, In re: Sealed Case, has noted the President has that authority, and if the Congress tried to pass a law saying the President does not have that authority, it would be found to be unlawful.

The intelligence community has been overseen by the Intelligence Committee, and we have found clearly that the companies acted in good faith. Regardless, however, of the legality of the President's TSP, it is a matter of fundamental fairness. These providers should not be punished by forcing them to litigate frivolous claims or by delaying this much needed relief.

Without these companies, without their active participation on this and many other matters, the intelligence community is fearful and has lost cooperation in the past. They are taking risks by being good patriotic Americans, and there are some who want to punish them. They want to kick them to get at the administration. Well, this bill does not prohibit lawsuits against the Government or Government officials.

I believe the time has come for us to pass a bill after 15 months. We now know that we have before us the ability to give clear authority, direction, and guidelines to the intelligence community to operate to keep us safe. We have added new protections, and if the President had not followed the advice of the ``gang of eight'' and had tried to reform the FISA rather than using article II, we would not only be debating September 11, there would be many others.

I urge my colleagues to vote down all these amendments and pass this badly needed modernization of intelligence collection, electronic surveillance, and the provisions of the additional privacy rights and protections for American citizens.

I yield the floor.

Amendment No. 5064

Permit me to relieve the Senator from Connecticut, a good friend and a good legislator, of some of his concerns. No. 1: During the President's terrorist surveillance program, even though it was operating under article II, he went to the FISA Court to get warrants for listening in on American communications, the same procedure we have outlined in this bill

today. But what he was able to do was to listen in on terrorists reasonably believed to be abroad, which is now included in our bill.

Article II is clear that he has that right. Article II was used by President Bill Clinton for a physical search, a physical search of Aldridge Ames' home; and the Congress responded by giving him more power.

Secondly, it is said that the article II should be challenged. I point out that there is no ban, no ban on lawsuits such as a lawsuit before Judge Walker, on lawsuits going forward against the Government or Government officials.

The Intelligence Committee conducted a comprehensive review of the TSP. We determined, on a strong bipartisan basis, that the providers acted in good faith pursuant to representations from the highest level of the Government that the TSP was lawful. It is not right to punish patriotic Americans who step forward and help their Government by subjecting them to harassment of lawsuits.

I urge the defeat of the amendment.

Mr. President, the simple fact is, the IGs have already reviewed this bill. I agreed to a limited inspectors general overall review, even though the Senate Intelligence Committee has reviewed the program on a bipartisan basis. At a time when we are urging more congressional oversight, why would we again turn over the question of the executive branch's actions to an executive branch agency when the committee has clearly said there is no reason to deny retroactive liability protection to these areas?

Now, there are some who don't like the program at all. There are some who don't like the administration. They want to kick the administration by penalizing the companies, by dragging the companies through a continuing stretch of frivolous lawsuits. The Senator from Pennsylvania admitted that there is going to be no recovery. The lawsuits are designed to kill it. This amendment would get a veto, and we would have to start all over. Please vote no.

I yield myself 1 minute in support of cloture.

Mr. President, some opponents of this legislation claim that Congress is usurping the authority of the courts and that their trust lies in single, lifetime appointed judges in the judicial branch. I strongly disagree.

The Constitution set up three coequal branches of Government. Our Constitution gives Congress the ability to determine the jurisdiction of Federal courts. This power is particularly important and necessary today in sensitive matters of national security.

Further, the courts, including the FISA Court, have recognized the executive branch's expertise in matters of national security. They have stated that national security matters are not within their purview. It is entirely appropriate for this Congress to end this litigation and not entrust this matter any further to the courts with respect to the liability of particular participants in the program in the private sector. They can still sue the Government. We think a matter of fairness requires we protect those who assisted.

Mr. President, I rise to engage the distinguished chairman of the Select Committee on Intelligence in a brief colloquy.

I thank the Senator. Today we have been debating the merits of title II of this bill, the title that contains the carrier liability protection provisions. I know that we both agree that title II is critically necessary to protect our national security.

I would like us to focus for a moment on a small but important point related to the meaning of the term ``electronic communication service provider'' in title II. This is a term that was contained in the bipartisan Senate bill and was carried over in the current compromise bill.

The term ``electronic communication service provider'' was intentionally drafted to encompass the full spectrum of entities being sued in a covered civil action. For example, if a provider received a written request or directive and the only assistance provided to the Government by that provider's related corporate entities was pursuant to that written request or directive, the related corporate entities should be entitled to the protections of section 802 as long as any assistance they provided meets the requirements of that section.

Senator Rockefeller, do we share this common understanding of the meaning of the term ``electronic communication service provider''?

Thank you Mr. Chairman.

Mr. President, I ask for the yeas and nays.

Mr. President, I apologize to my friend from Virginia, but we were going to start the FISA debate at 11. I understand there is a request to extend. I would like to lock in a time when we can accommodate those Senators wishing to speak but establish a firm time when Senator Rockefeller and I may begin the discussion of FISA.

Mr. President, are there other requests of people wishing to speak?

Mr. President, I think Senators Cornyn and Durbin wish to speak. So after the Senator from Virginia and the Senator from Connecticut finish speaking, if we could--I would suggest that we give them the remaining time on morning business until 11:30. I ask unanimous consent to establish morning business until 11:30.

Mr. President, I would like to reclaim my time.

Mr. President, I am happy to accommodate the Senator from California. With respect to the comments by the Senator from Pennsylvania, I had asked that those be reserved for the arguments in favor of the amendment. How much time remains on the chairman and my side of the aisle?

We will reserve that and accommodate the Senator from California. I thank the Chair and my colleagues.

Mr. President, I understand we are coming up on a hard break, as they say in television, for the party lunches.

Mr. President, I note only before we go into that break that the Senator from Pennsylvania has made a number of comments on time for the supporters of the bill that actually deserve a response.

One clear point that needs to be made in response to the Senator from Pennsylvania and the Senator from California is that Judge Walker's actions will not be dismissed if retroactive liability protection is accorded carriers. It is a case against the United States, not a case against the telephone companies.

Furthermore, I would say that the dictum in Judge Walker's opinion is contrary to higher, more authoritative courts. So Judge Walker was not correct, and I believe should his case go up on appeal, he will be found not to be accurate. But that does not go, as my colleague from West Virginia has said, to the issue of whether carriers deserve retroactive liability protection. So I will reserve my comments, and I will ask to be recognized when--when will the Senate return to session?

Mr. President, I ask unanimous consent that I be recognized for what remains of time on this side.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

establish the exclusive means for foreign intelligence

surveillance activities to be conducted.

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

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

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

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

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

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

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

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

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

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

If a certification . . . for assistance to obtain foreign

intelligence information is based on statutory authority, the

certification shall identify the specific statutory provision

and shall certify that the statutory requirements have been

met.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Of course. I would be honored.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Any FISA modernization bill must contain effective legal

protection for those companies sued because they're believed

to have helped the Government prevent terrorist attacks.

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

ensure the continued assistance of the private sector.

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

addressed in this letter

Essentially the Bingaman amendment--

would unnecessarily delay implementation of the protections

with the purpose of deferring any decision on this issue for

more than a year.

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

advisors will recommend that the President veto any bill that

includes such an amendment. The Intelligence Committee has

recognized the intelligence community cannot obtain

intelligence it needs without assistance from these

companies. We recognize that the companies in the future may

be less willing to assist the Government if they face the

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

the very degradation and the cooperation that this bill was

designed to provide. Continued delay in protecting those who

provided assistance will be invariably noted by those who may

some day be called upon to help us again.

Finally, by raising the prospect that the litigation at

issue could eventually proceed, this amendment fails to

address the risks that ongoing litigation will result in

release of national security sensitive information, a risk

that if realized could cause grave harm to national security.

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

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

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

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

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

Mr. President, I thank our leaders for getting us on this very important bill.

As we have discussed before, the failure to modernize and authorize the Foreign Intelligence Surveillance Act last summer has caused serious gaps in our intelligence capability.

When the Protect America Act that was introduced by our Republican leader, Senator McConnell, and me last year finally passed, we put the intelligence community back in the business of intercepting critical intelligence communications from foreign terrorists talking to each other about possible activities in the United States, or against our troops and our allies elsewhere, and obviously any of those who were threatening the United States.

I can tell you, without going into detail, that the foreign intelligence collection from these has been about the most valuable piece of information we have with respect to terrorist intent. So I appreciate the fact that this body is ready to move forward.

I hope we will have a way forward to get it done by the time we leave for the Fourth of July recess. It is critical we get this done promptly. If we go into late July or even into August without getting it done, serious consequences will start to impact our ability to collect intelligence.

Again, I thank our minority leader, Senator McConnell, for his kind words, especially about my very capable staff who have worked very hard, not only to help put this bill together, but we have briefed Members of both sides of the aisle, their staffs. We have spent a lot of time doing that.

Of course, as I outlined yesterday, we spent a very long 2\1/2\ months working with the House. As I indicated, the bill this body passed, the FISA amendments, we passed 68 to 29 in February with the good, strong support of the chairman of the committee, Senator Rockefeller. We worked on a bipartisan basis. We worked with and listened to the intelligence community to do several things that were critical.

No. 1, we wished to make sure there was protection for the privacy and constitutional rights of Americans and U.S. persons here and abroad. For the first time, we included that. We also needed to protect the telephone companies or carriers who have participated in the terrorist surveillance program under the lawful orders issued by the President, under his constitutional authority in article II, an act in good faith by those carriers.

We provided that immunity, or retroactive liability protection, more accurately, that was critical to ensuring that they can continue to participate. They are loyal American citizens, and they wanted to be able to help. But when frivolous lawsuits, seeking billions of dollars in damages, are filed against them, whether they participated or not, and there is no assurance that any telephone company so sued has participated. They cannot use a defense that they did not participate. They have to have protection.

We built in that protection in a way that was acceptable to both sides in this body in the FISA amendments and also satisfied the concerns of the majority party in the House, which, as Leader McConnell said, had the votes, if they had wished to pass our FISA amendments.

We believe this new bill we are considering, H.R. 6304, which passed the House with a strong majority vote of 293 to 129 last Friday, should be passed here.

As with the Senate's original FISA bill passed several months ago, the compromise that is before us required a little give-and-take from all sides. But, in essence, what we have before us today is basically the Senate bill all over again.

I am aware that some on the far left wish to paint this as some radical new legislation. But if you read the language, it is not different. The press picked up on this straight away last week and kept asking me to help them find the purported ``big changes'' in this bill that no one can find. I have not been much help to them because the answer is, there is not much that is significantly different, save some cosmetic fixes that were requested by the majority party in the House.

For example, I am pleased that the strong retroactive liability protections that the Senate bill offered are still in place, and our vital intelligence sources and methods will be safeguarded. I am pleased this compromise preserves the ability of the intelligence community to collect foreign intelligence quickly and in exigent circumstances without any prior court review.

I am also pleased the 2012 sunset, 3 years longer than the sunset previously offered in any House bill, will give our intelligence collectors and those parties we need to have cooperate with us the certainty they need in the tools they use to keep us safe.

I am confident the few changes we made to the Senate bill in H.R. 6304 will in no way diminish the intelligence community's ability to target terrorists overseas, and the Director of National Intelligence and the Attorney General agreed. That had to be the test. They worked with us. They made compromises. When we had a proposal for additional protections for Americans, they agreed. But we had to work out the language to make sure we provided protections without destroying the basic integrity of the bill.

I believe we did that. We did that with the Senate bill, and we did it again with the minor changes the House wanted to make.

Let me address, for the time being, the banner issue of the legislation, which is Congress's affirmation that the telecom providers that may have assisted the Government after 9/11 should have the frivolous lawsuits against them dismissed.

I am confident in the standard of review in title II of the bill on which we agreed with Congressman Hoyer and Congressman Blunt, his counterpart in the House, namely, a ``substantial evidence'' standard, which will ensure that those companies that assisted the Government following the September 11 terrorist attacks obtain the civil retroactive liability protection they deserve.

Unlike the amendment we defeated in the Senate that asked for the court to determine whether the providers acted in ``good faith,'' we affirm in this legislation, as we did in the previous Senate bill, that the providers did act in good faith, and that the lawsuits shall be dismissed unless the judge finds that the Attorney General's actions were not ``supported by substantial evidence.''

The focus is on the Attorney General's certification to the court, not the actions of the providers. We know the providers operated in good faith, and they deserve liability protection. We are allowing, however, the court to review the Attorney General's role in that.

Another way to describe it is that we have essentially provided the district court with an appellate standard of review, just as we did in the Senate bill. Congress affirms in this legislation that the lawsuits will be dismissed, but then we give the district court an opportunity to change that outcome if the judge determines the Attorney General's certification was not supported by ``substantial evidence'' based on the information the Attorney General will provide to the court. So the intent of Congress is clear: the companies deserve liability protections. That principle has been approved overwhelmingly on a bipartisan basis in both the Senate when we adopted our bill in February and the House when it adopted its bill last Friday.

Also, there are clear limits on what documents the court may review and the extent to which parties may participate in legal arguments. Because of these important limitations, I am confident that neither the standard of review nor the court processes will jeopardize liability protections or our intelligence sources and methods. Thus, Congress is again positively reaffirming that these companies should have the lawsuits dismissed.

Mr. President, for the record, I thank publicly these providers--and they know who they are--who came to our Nation's defense in a time of national peril. Thank you for ensuring that our Government could keep Americans safe. Thank you for withstanding years of frivolous lawsuits that you did not deserve. But, unfortunately, that has been your penalty for your patriotism. You are a big factor in why America has not been hit with another terrorist attack since September 11, 2001. You helped keep us safe for nearly 7 years since that terrible day, and you did so without legal relief. I thank you, and those who stand with me today thank you. The least we can do in Congress is to provide you with the legal protections you so rightly deserve.

Now, some Senators would like to strip the providers' civil liability protections in the bill. Some believe the thanks these providers deserve should come in the form of billions of dollars of penalties through frivolous lawsuits that threaten their business reputation. Having reviewed the underlying authorities, the certifications, as one who has practiced a little bit of law in this area, I can tell you there is no way they could or should be held liable for any monetary damages, much less the billions of dollars irrationally requested in the lawsuits.

What these lawsuits do is seek to undermine our program by laying out who participates in it. By getting at the details of the program, we would provide those who seek to do us harm with information on how we collect the information on them that is needed to prevent their attacks. Just as important, bringing them, dragging them through the mud of trials in court would simply assure that their business reputation would be severely damaged in the United States and potentially obliterated abroad. In addition, there is a real likelihood that terrorist activities or other extremists would turn on and attack their property or even their personnel.

I believe seeking to strip liability protection is void of any mature understanding of the threats this Nation faces. That sort of shortsighted pandering to far-left political interest groups endangers our citizens and pays back patriotic service with politically motivated penalty.

I do not join with those who want to treat those who responded to our call for help with disregard and disrespect. I thank the providers for responding to the call, and I will join many others in passing this legislation who will be thanking them with their vote on this important national security legislation.

For those who want to challenge the program, note that we did not ban civil suits against the Government or against any officer of the Government. And criminal suits--if there are any criminal penalties-- are not banned. They could be instituted by the appropriate jurisdictions with law enforcement responsibility.

So, Mr. President, there are lots of other points to consider, and when we get on the bill I will be happy to join in discussing any further questions that are raised.

Again, I thank my staff, I thank Senator Rockefeller and his team for having passed the FISA bill. I am very grateful to Mr. Hoyer, the majority leader in the House, whose efforts were essential to passing this bill and bringing it to us. We have thanks also for the ranking member of the House Intelligence Committee, Peter Hoekstra, who worked with us day in and day out on all of the changes that were requested. Lamar Smith, the ranking member of the House Judiciary Committee, he and his staff and his team worked with us throughout.

We have before us not a perfect piece of legislation--I do not think on this Earth we will ever see a perfect piece of legislation. But for the challenges we had to go through and the compromises we had to make, this is the best possible product we can produce that has already gained an overwhelming bipartisan majority in the House. I hope it will also get the same kind of response in the Senate.

Our intelligence community deserves it. The citizens of the United States deserve not only their rights protected, but they need and deserve the protection this act will give them from further attacks like 9/11.

Mr. President, I do not see anyone seeking the floor, so I suggest the absence of a quorum.

Mr. President, I was asked by the Senator from Montana, Mr. Tester, if there would be any objection if I asked that, after I finish my remarks, he be recognized for 5 minutes; that the Democratic time be extended 5 minutes and the Republican time be extended 5 minutes.

Is there any objection to that?

Mr. President, I know this is morning business, but I need to get people's attention back on FISA, I hope. Let me clarify some things that have been said earlier today. From time to time, some have tried to rewrite the history on what happened 1 year ago in producing the Protect America Act, our first attempt to fix the problems with foreign intelligence surveillance 1 year ago. That was not pretty, but I note there have been mischaracterizations of it. After last year, many critics of FISA, most notably in the House, tried to rewrite history and discredit ADM Mike McConnell, the Director of National Intelligence, and this compelled me to speak out on the matter at this time. He, in my view, from what I saw, acted in good faith, and he was charged with not having done so. But it seems there is another effort today to rewrite history. I can say, as vice chairman of the Senate Intelligence Committee and the cosponsor of the Protect America Act, I was the lead negotiator during the final hours of the Congress, as we tried to pass a critical short-term update of our Nation's law governing terrorist surveillance.

As one who was there, I dispute the misinformation that was spread and largely by those who were not there. I will outline the events as they occurred, and here is what happened.

As I think most of us know, in January 2007, the President announced that the terrorist surveillance program was coming under the FISA Court. Our Director of National Intelligence, Admiral McConnell, subsequently stated that after that time, the intelligence community lost a significant amount of collection capability and that, combined with increased threat, compelled him to ask Congress to modernize FISA, sooner rather than later.

On April 12, Admiral McConnell sent his full FISA modernization proposal to Congress, and on May 1 he presented it in open session to the Senate Intelligence Committee.

Some would like us to believe that was the first time this became an issue for us, in July, but it was not. The DNI had appeared in open session before the Senate Intelligence Committee and had pleaded with us to update FISA months earlier.

I might say, along with another colleague of ours on the Senate Intelligence Committee, Senator Bayh, we visited Iraq in early May of 2007, and the Joint Special Operations Commander, LTG Stan McChrystal, told us at that time that the blockage in electronic surveillance by FISA was substantially hurting his ability to gain the intelligence he needed to protect our troops in the field and gain an offensive advantage. I believe I, and perhaps Senator Bayh, spoke about that in committee and on the floor.

Immediately following the admiral's testimony in May, I had urged the Intelligence Committee immediately to mark up FISA legislation. I was told by members of the majority that until the President turned over certain legal opinions from the terrorist surveillance program, Congress would not modernize FISA. That Congress would hold America's security hostage to receiving documents from a program that no longer existed was disheartening to me. We had already received an inordinate amount of documents from the Department of Justice and the Director of National Intelligence. Yet I do not dispute the desire or the right of members to seek privileged documents from the executive branch. In fact, I joined in requesting some of that. But I did disagree with holding up FISA modernization when those documents were not necessary to do that.

Despite the urging from the Director of National Intelligence, and knowing this outdated law was harming our terrorist surveillance capabilities, for

more than 3 months Congress chose to do nothing. Let me be clear, it was Congress that chose to ignore the pleas of the intelligence community. As a matter of fact, in late June, Admiral McConnell had a briefing for the entire Senate. I believe about 42 to 44 of us showed up there. He briefed Members of the Senate, again urging us to modernize FISA. Finally, his pleadings began to gain traction.

In mid-July, Members of Congress agreed to discuss a short-term, scaled-down version of FISA to protect the country for the next few months before we could address comprehensive reform in the fall. Admiral McConnell immediately sent Congress his scaled-down proposal.

Over the next week, Admiral McConnell was given nearly half a dozen versions of unvetted proposals from various congressional staffs across Congress and then pressed for instant support of these proposals. The admiral returned a compromise proposal to the Senate, including some of the provisions requested. Unfortunately, there were numerous bait and switches that took place during that time.

Since the bipartisan committee process was circumvented to craft legislation behind closed doors without input from the relevant committee and the minority, it got messy in the final hours. Even as the vice chairman of the Intelligence Committee, I was excluded from the key meetings. Not only was I excluded, most members of the Intelligence Committee, Republican and Democratic, were left out of the process.

Therefore, in the waning moments before the recess, I got together with a number of Democrats, including several from our Intelligence Committee, to discuss the short-term approach for the Protect America Act that Leader McConnell and I had introduced and which had the support of the DNI and the Department of Justice.

Finally, on August 3 and 4, Congress, on a strong bipartisan basis and a desire to get out of town for the August recess, passed the Protect America Act.

That was why it was jammed up. The administration was not trying to stiff us. The administration felt it was being stiffed. Fortunately, a solid, bipartisan majority of the Senate came together, passed the bill, and gave the House, regrettably, no choice but to pass it--which they did. But after the passage of the act, I think we all learned a good lesson. We sat down together on the Senate Intelligence Committee and began, on a bipartisan basis, to work out a permanent solution to FISA. I am very thankful we could do it. We put in a great deal of work. We spent a lot of time with the DNI, with the lawyers and the operatives for the program, and Senator Rockefeller and I worked, in a bipartisan fashion, to come up with a strong committee bill that we passed out of the Senate later on a 68-to-29 vote.

I thank my colleagues on the committee, their staff, and all the Members of Congress who supported us, particularly the 68 who came and voted aye to pass the FISA amendments in February.

That started the process that led us to where we are today. There is a strong bipartisan product before us. There were changes, cosmetic changes largely, made that the House believed were important and the intelligence community assured us would not interfere with their ability to collect information under the structure we had set forth in the FISA amendments that were passed by the Senate.

That is where we are today. I am ready, willing, and able, whenever it is the will of the leadership, to act on amendments that may be before us and try to pass this bill so we will have some certainty for the intelligence community that they will know what the guidelines are for the next period through 2012.

In any event, I will be back when we get on the bill to go over some of the items which are in question. But I think you see our chairman, Senator Rockefeller, who is on the floor, and I can assure you this is a good, solid, bipartisan bill that we should pass.

I see it is a good time to yield the floor.

Mr. President, I ask unanimous consent that after my remarks, the Senator from California, Mrs. Feinstein, be recognized, and that she be followed by the Senator from Georgia, Mr. Chambliss.

Mr. President, while my good friend from Vermont was on the floor, I thought he raised some good questions. I believe we have good answers for those questions. I know of his dedication and commitment to the rule of law and accountability, his very distinguished service as head of the Judiciary Committee. But there are several things I would point out.

No. 1, we have been working on this entire issue of the President's terrorist surveillance program for better than a year now. We have reviewed all of the documents. We have had all of the people who administered the program, who have given opinions on it, come in. I dispute his statement that there were 6 years of unlawful activity of the President. He said no court will be able to review the illegality; no independent officials have reviewed it.

First, it is my understanding, although I was not one of them, that the big eight at the time--that is, the Republican and Democratic leaders of the House and the Senate and the leaders of their Intelligence Committees--were briefed on this program before it started. I don't know the substance of the briefing. I would imagine that they told them the problems in the existing old FISA law would make it difficult to implement that law, given the new technology which, in fact, was the case. In any event, it went forward.

When the program was finally disclosed and briefed to the Intelligence Committee, I spent a good bit of time reviewing that. I have studied constitutional law and made constitutional law arguments before. I believe if my friends who have questions about it will check the Constitution and the appellate court's interpretation of article II, they will find that they assume the President does have power to collect foreign intelligence information as an adjunct to his responsibility to conduct foreign affairs.

There is no question that Congress cannot pass a law abrogating that constitutional right. As a matter of fact, in one of the released cases, one of the cases made public by the Foreign Intelligence Surveillance Court, or FISC, they noted that Congress could not abrogate that constitutional right. It would be unconstitutional. For those who raise the test of the steel cases, I don't necessarily accept that test, that the enactments of Congress can affect the measure of credibility and extent of the President's power. The Congress did pass the authorization for the use of military force prior to the imposition of the terrorist surveillance program. We had access to the documents. Based on review of the documents, the Senate Intelligence Committee, by a vote of 13 to 2, passed out the bill which is the essential framework that is before us.

The courts can review to see that there are certifications by the Attorney General, directives by the President, and only if they find no substantial evidence to support that, then the suits will be dismissed.

My friend from Vermont said we ought to substitute the Government for the phone company for judicial review. There is another provision in the bill he should understand. If you want to sue the Government, there is no ban in this bill on suing the Government or suing Government officials. That can go forward. That is not affected by this bill. There has been extensive discussion over the legality of it. For those who wish to have a trial on the legality of the program, there are other means still available. To penalize a phone company or other carrier which, in good faith reliance on a representation of the Attorney General and the President of the United States, carried out a program that I believe is lawful to protect American citizens, I think is totally unwarranted.

Let me describe today for my colleagues and for those who may be interested this long and difficult process which I believe has finally accomplished its goal. This week we have a chance to tell the American people that the intelligence community on which our citizens, our troops, and our allies rely to keep us safe from terrorists and other forms of evil in the world can continue to do its job. We can tell those companies that answered their Government's call for help in the aftermath of the September 11 terrorist attacks that a grateful nation stands behind them and that they will be given the civil liability protection they rightly deserve.

I strongly support voting for cloture on the motion to proceed to H.R. 6304, the FISA Amendments Act, this afternoon. I strongly encourage my colleagues not only to do the same but also to oppose any amendments offered to it. We have finally struck a deal with the House, and the House honored the deal last Friday by allowing no amendments on the House floor. I ask my colleagues to hold up our end of the bargain. While it is in every Senator's right to offer an amendment, I urge my colleagues to vote down all amendments no matter what they may be so that we may send the bill immediately to the President for signature and make sure we don't have further gaps in our intelligence system which could appear once again if we do not pass this in a timely fashion. If we send it back to the House, there is no telling when a final bill could be back here for passage.

Let me describe briefly how we got here. Approximately a year ago, Director of National Intelligence ADM Mike McConnell came to Congress and asked that we update the Foreign Intelligence Surveillance Act. Changes in technology resulted in court rulings or interpretations that made it very difficult to use electronic surveillance effectively against terrorist enemies overseas. The problem came to a head in May 2007, with a ruling that caused significant gaps in collection. Although the DNI at the time pleaded to Congress to help, the leadership of Congress did not move.

In the looming pressure of the August recess, the Republican leader, Senator McConnell, and I cosponsored the Protect America Act which Congress passed the first week of August last year. The act did exactly what it

was intended to. It closed the intelligence gaps that threatened the security of our Nation and of our troops. But it was lacking in one important aspect, as we were not able to include in it the retroactive civil liability protection from ongoing frivolous lawsuits against those partners who had assisted the intelligence community in the President's program.

Following the passage of the Protect America Act, I am proud to say that Senator Rockefeller and I worked on a bipartisan basis to come up with a permanent solution to modernize FISA and give those private partners the needed retroactive liability protection. We worked closely for months with the DNI, Department of Justice, and their experts from the intelligence community to ensure there would be no unintended operational consequences from any of the provisions included in our bipartisan product. In February of this year, after many hearings, briefings, and a lot of debate on the Senate floor, the Senate passed the FISA amendments by a strong bipartisan vote of 68 to 29.

The bill coming out of the Senate reflected the Intelligence Committee's conclusion that the electronic communication service providers who assisted the President's TSP acted in good faith and deserved civil liability protection from frivolous lawsuits. The Senate bill also went farther than any legislation in history in protecting the privacy interests of American citizens or U.S. persons whose communications might be acquired through targeting overseas. It also required the FISA approval to target U.S. persons overseas, if they are going to have collection initiated against them.

At the end of the day, there were many difficult compromises. Both sides gave, and we came up with a bill that was not only bipartisan but the best piece of effort we could get out of this legislative process.

Although the Senate passed the bill before the Protect America Act expired, in the House there was a clear majority. But the leadership didn't let it come up. They went on recess. In the days following the expiration, private partners refused to provide intelligence information, frankly, in light of the ongoing litigation, the tremendous threat to their business franchise, the fact that they and, particularly their shareholders, who may be retired persons depending on pensions and others, could be losing billions of dollars in the marketplace because of the size of these outrageous lawsuits seeking billions of dollars, when, in my view, there was no damage and no grounds for recovery. Fortunately, after several days' negotiation, the intelligence community was able to get the providers to resume cooperation, but the intelligence lost in that time was gone, and we will never know what we missed because the House leadership refused to bring up the Senate bill.

Some have accused me and my colleagues of saying at the time, falsely, that the sky was falling. For a few days the sky was falling until a tenuous agreement was worked out between the executive branch and the providers. But the agreement was all predicated upon ongoing work to pass a FISA modernization law in the near term. That is another reason why it is vital the Senate move immediately to consider the FISA Amendments Act. Once the House returned from the Easter recess, my good friend and fellow Missourian, majority whip Roy Blunt, and I met with the House majority leader, Steny Hoyer, asking him what he thought the House needed in order to allow the Senate bill a vote on the House floor. We and our staffs began discussions and sent proposals back and forth attempting to come together. During that time, Roy Blunt and I conferred repeatedly with Congressmen Hoekstra and Smith and, of course, vetted our proposals with the intelligence community.

Finally, after four personal meetings over 2 months--and a tremendous amount of staff work--between Majority Leader Hoyer, Minority Whip Blunt, and me--Whip Blunt and I delivered a proposal to Mr. Hoyer before Memorial Day, a deadline he had set.

This agreement was one that had been signed off on and fully discussed with Mr. Hoekstra, the vice chairman of the House Intelligence Committee, and Lamar Smith, the ranking member of the Judiciary Committee. We felt this was the best offer we could make on behalf of the Republicans in the House and Senate, and it was agreed to by the intelligence community.

The Memorial Day deadline, however, came and went, and again the House went on recess. Finally, after more interaction among our staffs, I received word 2 weeks ago that the House Democrats were ready to work out final language. So Leader Hoyer and Whip Blunt and I met for a fifth time, this time inviting my colleague, Jay Rockefeller, to join us in the final negotiations. On June 12, the Democratic House leaders gave up their idea of having a commission take a look at the surveillance program, which we believe would have been political, further interfering with the work of the Intelligence Committee and perhaps community, and perhaps lead to increased leaks about the program.

They agreed on a longer sunset than in previous bills. We abandoned the idea that the FISA Court should be the one to assess compliance with the minimization procedures used in foreign targeting. With the concessions Republicans and the administration had already made, along with some minor technical fixes, I am proud to say the intelligence community was given the flexibility and tools it needs to keep us safe. We had a compromise.

Now, I offer all that as background so the record is clear. That brings us where we are today. Once we get on the bill, I will explain what is before us, and I will explain how statements from some about this legislation is nothing short of fear mongering, such as from those who are saying all Americans who talk to anyone overseas will be listened to by the Government. That is flat wrong.

Americans cannot be targeted without a court order, period. If someone overseas is targeted and talks to an American, then the American's end of the communication is what we call minimized, which means it is hidden, protected, suppressed. I will elaborate further on this. But at this time, I simply ask my colleagues to vote for cloture so we may move immediately to the bill.

I note some of my colleagues from the Senate Intelligence Committee are seeking recognition, and I appreciate the work all members of the committee have done. I see my colleague from Georgia, who has been an outstanding help, and the Senator from California, who has offered many useful ideas. This has been truly a year's long work, and we are happy to bring the final process before the Senate today.

I thank the Chair and yield the floor.

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

Madam President, I am hoping very shortly we will vote on or act on or somehow pass an amendment that I have offered, offered on the previous housing bill which, incidentally, I thought was a much better bill than this one.

I ask unanimous consent to speak for--well, Madam President, I am going to continue to tell you that.

The teaser rate problem is one which has afflicted many borrowers in Missouri. They get these offers for loan rates. They are told, verbally, that they can get a good rate when the time expires. The problem is, it is not in writing. So we would require full disclosure in advance, written down. If the people are going to make a representation, it has to be a binding representation. My amendment is designed to advise consumers, before they purchase a home, what they are going to have to pay.

I understand there is a modification that will make this amendment acceptable to all sides. I think it is terribly important to avoid putting so many people, in the future, in the trap that they now find themselves, that we require they disclose what the rates will be, and if they want to offer good terms, they put them in writing.

I urge my colleagues to support this amendment as modified.

I yield the floor.

Madam President, I suggest the absence of a quorum.

Mr. President, I came to the floor for another subject, but I do wish to tell my friend from California that we will have an opportunity to talk about the FISA bill that was passed. The bill we passed in the Senate with an overwhelming bipartisan majority protected civil liberties of American citizens much further than they have ever been protected even under existing criminal law, we provided more protection.

The Senate committee looked at the essence of the terrorist surveillance program for which we recommended that retroactive immune liability protection be provided for those who cooperated. They cooperated in good faith on the basis of the representation by the intelligence community that there was a Presidential directive authorized by the Attorney General. It was authorized under the clear constitutional authority of article II of the U.S. Constitution, supported by the MOFA that was passed by Congress. We determined that they were entitled to protection.

As a lawyer, I have read all of the documents. I am convinced that the bill we passed does not in any way give away any rights or protections.

Anybody who objects to the granting of this liability protection should know that we do not protect Government officials or the Government itself from lawsuits. If one wants to challenge it, file suit against the Government, file suit against Government officials, but don't ruin the business reputation of those who, in good faith, as good citizens, provided the intelligence that was needed to keep our country safe and to keep our soldiers and marines, such as my son, on the field safe from battlefield attacks. They provided that information, and we owe them better than to haul them before a court to have them exposed to the vengeance of terrorists or people who didn't like what they did. We owe our security in the United States better than to lay out in an open court proceeding all of the things our intelligence community can do to stop terrorist attacks--terrorist attacks which have not occurred in this country since September 11, 2001, which were certainly planned and underway before they were interrupted.

I can't go into any more on the floor. Any Member of the Senate is entitled to have that information in confidential SCIFs where we discuss classified information. I invite them to be briefed, and I will have much more to say about the FISA law when we get on the debate.

Missouri Flooding

But I come to the floor today to share some observations with my colleagues, and anyone else who may happen to be watching, about the natural disaster that is going on right now in my State of Missouri.

If you turn on the television, you will probably see the flooding that is expanding over an area west of St. Louis County and St. Charles County. The Eagle Point levee breached last night, and that is only the latest example. Many other levees have also been breached.

This past weekend, I went to visit the people on the front lines. I met with State and local officials, who are prepared and are responding extremely well, given the prolonged damages, the challenges, and the extensive duration of the flood. This effort, I am proud to say, is a good testament to how bad disasters can be mitigated from becoming worse disasters when competent local and State leaders and volunteers proactively take steps at the immediate scene of the disaster.

At Winfield, MO, on Friday afternoon, right along the Mississippi River, I met with volunteers from the Salvation Army, the Red Cross, Missouri Civil Air Patrol, local law enforcement's emergency planning officials, the Missouri National Guard, and local and surrounding community volunteers. It was inspiring to see how people came together to help protect lives and property. Over 1,000 volunteers--some of my staff members joined with them--filled sandbags and built the levees. They were joining neighbors, church groups, civic groups, and other people coming in to help. By that afternoon, they said they were going to have to call and say: We don't have need for more volunteers now, so wait until there is a problem elsewhere.

As always, the National Guard acted valiantly. Their work has given businesses and families the critical time they need to get important assets out of harm's way where levees are in danger of failing. And so far--knock on wood--we have come through with minimal personal damage. People from all walks of life across Missouri and across the heartland--neighbors came in from Illinois--have pitched in to help. It has truly been an all-hands-on-deck effort, and I couldn't be more proud of them. I thanked them in person, and I come here on the floor to express my thanks to them.

Missourians and our midwestern neighbors have pulled together and, as it turns out, they may be doing too great a job of fighting the floods. Local communities have been burdened with the financial strain that comes with any disaster. Communities along the Mississippi have invested hundreds of thousands of dollars in pumps and sandbags, and untold tens of thousands of volunteer efforts in trying to protect property and lives. While these current investments made are small compared to cleanup costs, our small towns, our communities, still need Federal help.

I come here today to report, regrettably, that despite national news coverage day after day of the destruction in Missouri, FEMA has still not declared Missouri a Federal disaster area. Our families and communities along the Mississippi River are investing every resource they have to mitigate the disaster while FEMA figures out the extent of the disaster.

Not only has this flood destroyed homes, but it is currently saturating tens of thousands of acres of some of our State's most productive farmland. In addition to waiting for the waters to recede, farmers will have to remove the debris the Mississippi River leaves behind before they can plant their crops. I don't know if you have ever been to a flood scene, but it isn't just a whole bunch of land getting wet; it brings in everything you don't want to have on your land, and you can't plow it, you can't even mow it because of all the debris left.

Many have heard the saying ``knee high by Fourth of July.'' That used to be a reference to corn height in Missouri, if you wanted a good crop. Now, in a good year, if it isn't six feet tall, then you are way behind. But this year, regrettably, in talking about the height of corn, there is a lot of land where we are going to be talking about the height of water.

USDA, FEMA, and other Government agencies, I hope and I expect, will provide emergency funds to clean up the disaster. I am pleased I have been joined by my other colleagues from the Midwest to fund these programs in supplemental appropriations bills that will ensure disaster victims receive much needed aid. We have to continue to do our part in the Senate to make sure these flood victims will be able to get their feet back on the ground. I have joined with eight of my colleagues in cosponsoring Senator Grassley's disaster tax package, which will also help.

But, I repeat, none of these actions will provide any relief until Missouri gets a disaster declaration. And with everyone in Missouri doing their part--his and her part--acting responsibly and responding locally, I urge FEMA to do its part and approve the predisaster declarations they asked our State officials to make. We know there is going to be more work in finding out the total extent, but anybody who looks at the pictures on the television and who doesn't believe this is a major disaster, is saying, I am not believing my own lying eyes, because it is right there for them to see. I wish FEMA would start the mechanism rolling.

We know we have a lot of work to do, we have a lot of disaster, but we are thankful in our hearts for minimal human damage and the tremendous human outreach. It is time for the Federal Government's emergency management agency to get off the dime and move.

I thank the Chair, and I yield the floor.

Mr. President, I thank the leaders of this effort, my good friends, Senators Dodd and Shelby, for their hard work and their efforts to address the housing crisis and the need to reform regulatory oversight of the government-sponsored enterprises, Fannie Mae, Freddie Mack, and the Federal Home Loan Banks, and reforming FHA.

These are clearly needed. They are long overdue. I am happy to support them.

In addition, there is clearly a role and a need for the Government to address the current housing crisis. I have supported and led various efforts in the SAFE Act--Security Against Foreclosure and Education Act--that I introduced in March. That had additional housing counseling, improved disclosure and transparency in the home-buying process, and strong enforcement actions against predatory lending. These were essentially included in the bipartisan measure this Senate passed early in April. But I have grave concerns about some aspects of H.R. 3221, the Housing and Economic Recovery Act of 2008. I filed three amendments to that bill today that I hope we will be able to discuss thoroughly and act upon.

It is a fundamental principle that the Congress does not create programs that perpetuate or reward the behavior that led to the housing crisis or damage the key agencies that play a key role in stabilizing the housing market. Unfortunately, this legislation before us today goes against that principle.

Specifically, I am gravely concerned about the proposed expansion of the Department of Housing and Urban Development's--HUD--Federal Housing Administration--FHA--contained in this bill. The proposed creation of a new FHA program called the HOPE for Homeowners loan program would allow certain at-risk borrowers to refinance their mortgages and authorize FHA to guarantee up to $300 billion in new loans. The program would allow lenders and borrowers to refinance voluntarily their mortgage loans into a new FHA-insured loan at a significantly reduced loan level with lenders agreeing to write off these reductions as losses.

According to the Congressional Budget Office's review of the HOPE for Homeowners loan program, about 400,000 loans would voluntarily participate in this program, which would require about $68 billion in loan commitment authority. CBO projects that about 2.2 million borrowers of subprime and alt-A loans will face foreclosure proceedings during the next three years. Based on a comparison of these numbers, the expected reach of this program will be significantly limited in assisting of homeowners who are expected to face foreclosure. While I would like to keep as many homeowners in their homes as possible, this strategy is more likely to result in a huge bailout for lenders while protecting a very limited number of homeowners. In particular, CBO estimates that under this program, ``mortgage holders would have an incentive to direct their highest-risk loans to the program.'' For a modest write-off, lenders who were, in a number of cases, either fraudulent or negligent in their treatment of borrowers, will be able to clear out many of their problem loans. At the same time, CBO estimates that the cumulative default rate for the HOPE program would be 35 percent--meaning that one out of every three loans refinanced would fail. Frankly, creating a new Federal program that takes on the worst of the worst subprime loans, which will hurt FHA is extremely troubling.

The Senate bill pays for to the new FHA HOPE program from GSE assessments. This offset potentially avoids the need for funds from the Treasury to cover the losses as required under the Federal Credit Reform Act. However, whether the costs for the HOPE program would be paid by proceeds from the GSEs or from direct appropriations, it does not change the nature of this program--it is a bailout.

As a former member of the Senate Banking Committee and current longtime member of the Senate Appropriations subcommittee with jurisdiction over FHA, I have held a strong and long-time interest on housing and finance issues. A major lesson learned from my work on both the authorizing and appropriating committees is that FHA is significantly limited in managing and implementing its loan activities due to longstanding management and resource challenges. Let me emphasize that point. FHA is significantly limited in managing and implementing its loan activities due to long standing management and resource challenges. They do not have the people and the people are not adequate to the task in too many cases. FHA's challenges have been well-documented by the HUD Inspector General and Government Accountability Office for several years, which has been heard through numerous congressional hearings. All my colleagues who wish access to that information can have it.

It also is troubling to me that we are burdening FHA at a time when they are playing a growing role in assisting distressed homeowners. I have heard that FHA's market share has grown tremendously from about 2 percent to as high as 8 percent. To add 400,000 of the worst of the worst new loans to FHA's portfolio at this time is potentially creating a perfect storm for failure. Any collapse in FHA will be borne by the American taxpayer and future appropriations bills, potentially at the expense of other housing programs.

It is my belief that the FHA HOPE proposal takes the Government and the taxpayers down a dangerous and risky path, which may worsen the housing problem for borrowers it aims to address. Further, when taking into account the longstanding management and financial challenges of FHA, the expectations being created by the new FHA HOPE program are unrealistic.

Amendment No. 4985 to Amendment No. 4983

For those reasons I offer an amendment, No. 4985, to strike title IV of division A, which establishes the HOPE program. I recognize this program is a part of a delicate compromise, but it is too troubling and risky for the American taxpayer. Therefore, I call up amendment No. 4985.

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

Mr. President, I unanimous consent to set that amendment

aside so I may offer another amendment.

The next amendment I offer, No. 4987, was designed to protect potential home buyers with additional mortgage loan disclosure requirements. I explained and discussed this amendment with the two leaders of the Banking Committee when we had the previous measure on the floor. I think the disclosure requirements were widely agreed to on both sides of the aisle, but due to the procedural situation at the time it was not accepted. This amendment would protect consumers considering complicated and potentially unaffordable mortgage loan terms by requiring a clear and simple disclosure of payments and interest rates for adjustable rate loans with so-called teaser rates. These teaser loans, with interest rates and payments that jump up to unaffordable levels, played a large role in our current subprime mortgage crisis.

Many potential borrowers either did not understand what they were getting into or were falsely assured everything would be OK.

As part of bringing relief to families and neighborhoods suffering through the housing crisis, I wish to ensure we do not face another crisis in the future because we did not correct the problem.

I have spent a good bit of time in Missouri, talking with homeowners facing foreclosure. The local government agencies, mayors, councilmen, aldermen, the advocacy groups, and the very effective counseling programs such as NeighborWorks and others who are assisting homeowners and are working on counseling those in foreclosure, but they also came back and unanimously said we have to have better information for the potential buyer before they get into it. Making sure potential buyers know the costs and do not fall into a trap that can lead to a disaster for them and serious impacts on the communities is very important.

If you have ever taken out a mortgage loan to buy or refinance a home or get a home equity line of credit, you are confronted with piles and piles of paperwork and legal jargon. I have had the pleasure of getting three new loans in the last 5 years from a local banker who doesn't do subprime. Each time I have gone through the disclosure requirements on closing. There is a stack of paper, several inches thick, that is written in legal jargon.

I used to be a lawyer. While I can read those documents, I can assure you they are not easy to understand for somebody who is not an expert in the area. I assume I am similar to most homeowners who cannot read through all the legal gobbledygook and wouldn't find it particularly edifying if they did.

When low-income homeowners who have fallen into problems responded to my question about why they didn't ask questions, they were met with: ``Don't worry about that,'' or ``We'll fix that later.'' I can assure you, those things do not get fixed quietly after you sign the papers.

Congress passed the original Truth in Lending Act and applied it to mortgage loans. We knew then most people do not take the time or have the ability to read and understand the fine print of mortgage loan documents. However, the protections in the Truth in Lending Act were written long ago and are now woefully outdated. They were written when most everyone took a 30-year fixed loan. There are many more loan tools to help people share in the dream of home ownership. There are adjustable rate mortgages; adjustable rate mortgages with initial fixed terms, sometimes called teasers; prepayment penalties and refinancing options, quicker and easier than ever before but not fully understood.

More choices are a good thing, but uneducated consumers who do not understand the choices and therefore do not understand what they are committing to is a bad thing.

I mentioned on the floor at length the story of Willie Clay, of Kansas City, MO.

Willie Clay is a Vietnam war paratrooper living largely on disability payments. Willie lives in a working-class Kansas City neighborhood of modest ranch homes called Ruskin Heights.

Willie refinanced his mortgage in 2004 for a total of $101,000. As you can see from the size of that loan, Willie is a man of modest means. He was not a speculator gambling on the housing market. He was not an investor buying a vacation rental home.

Like so many other Americans, Willie was just looking for a little extra money to pay-off his medical bills, car loan and some credit cards. Willie agreed to a subprime adjustable rate loan with an initial fixed rate of 8.2 percent.

For several years, everything went fine for Willie. He made his payments and honored his agreement. Then last October, the initial fixed rate ended and the loan reset to a variable rate. His new interest rate became 11.2 percent, and then was set to rise again in March to 12.2 percent, with more rises coming.

Willie told the Star, ``If the rate goes up again, I can't afford it.'' Willie and his wife Ina would have to give up their home and move into an apartment. Willie now admits that he never fully understood how an adjustable rate worked when he agreed to the new loan.

``I didn't have the education to understand it,'' Willie said, ``and they didn't explain it to me. I thought if the interest [rate] went down, your payment went down. If the interest rate went up, your payment stayed the same.''

Willie was now facing mortgage payments 50 percent higher than when he started. Willie was also trapped in his loan because of a $2,500 prepayment penalty. This is not just a family crisis. Willie's entire neighborhood suffered through this housing crisis. At one time, there were more than 500 foreclosures in his Zip Code alone.

On Willie's block, there were several empty houses. Foreclosed homes are driving property values down for everyone. It becomes a self- perpetuating downward spiral. That is why we need to help these people.

My amendment will apply to adjustable rate mortgages with an initial fixed or ``teaser'' rate. This is the kind of loan Mr. Clay had and millions of other Americans have. For these types of loans with teasers, lenders or brokers will be required to provide in large, prominent type the loan's fixed interest rate, the initial fixed payment, and the date on which the fixed rate will expire. The lender or broker will also need to provide an estimate of what the payment will be when the loan resets from its initial teaser rate to a floating adjustable rate. For many subprime borrowers, this jump could be quite large, and the borrowers need to be aware of it.

We would also require lenders to disclose that there is no guarantee that the loan can be refinanced before the initial fixed rate expires. That caught a lot of borrowers who knew the terms of their loan could go up after the teaser rate expired, potentially to unaffordable levels. But any concern they had that they could not afford their loan in the future was put to rest by personal assurances by a broker that there would be no problem refinancing the loan before the teaser rate expired. For many, this turned out to be true, but when the credit market seized up and the loan standards were raised, they were caught in an impossible situation. This amendment requires a disclosure that there is no guarantee that the borrower will be able to refinance a loan before the teaser rate expires.

The amendment also requires the disclosure of any prepayment penalty, the amount, and the expiration date. This prepayment penalty caught families like the Clays, trapping them in a bad situation. While prepayment penalties can be good, giving certainty to the lender, who can in turn provide a lower interest rate, people need to be aware of what they are getting into.

That is the theme of the entire amendment. It does not block adjustable rates, it does not block initial fixed rates. It allows prepayment penalties. These advances in the mortgage business have been good for consumers, but it just requires full disclosure. Brokers and lenders did not do enough to disclose to and educate consumers.

Mr. President, I call up amendment No. 4987 to protect potential home buyers with additional requirements.

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

Mr. President, I ask unanimous consent that the pending amendment be set aside.

This final amendment limits the responsibility of Fannie Mae and Freddie Mac for housing entities that receive funding from the Affordable Housing Trust Fund created under the bill. The amendment prohibits the trust fund to be used for soft program costs to ensure that any of these funds be used for bricks and mortar.

It is very simple. I can read the whole thing. It says:

Notwithstanding any other provision of the law, Fannie Mae

and Freddie Mac shall not be responsible for any payments

either directly or indirectly to other housing entities under

the Affordable Housing programs unless these GSEs voluntarily

provide funding. None of these funds shall be used for soft

program costs, including staff costs.

In essence, it is a very simple amendment. My concern is that, regardless of what one thinks about the GSEs, it is, I believe, unprecedented for Congress to step in and say: You are a partially privately owned, shareholder-owned entity, and you shall be paying a tax that we determine to a group of other entities over which you have no control.

People may like or dislike or want to reform the GSEs. But there are a lot of other GSEs. Are we going to go around and start telling Sallie Mae, for example: You have to fund various of these education programs.

There are other quasi-governmental agencies that I think would be very much concerned if Congress started the practice of taking these entities and telling them where they have to spend their funds. This is a backdoor way of avoiding the honest and straightforward provision of either raising the money through taxes or providing other revenue of the Federal Government.

I hope my colleagues will consider all three of these amendments. I look forward to discussing them when the time is appropriate. I thank the manager for allowing me to raise these.

I call up Amendment No. 4986.

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

Madam President, to clarify, amendment No. 4986 relates to the affordable housing trust fund. I have a minor modification. I have asked both sides if they would accept it. I ask unanimous consent to so modify the amendment, and I send the modification to the desk.

Amendment No. 4986.

Madam President, then I will withdraw my request until my colleague has had an opportunity to look at it.

Let me explain briefly that we added one sentence to a two- sentence amendment saying, in essence, that it will not affect the GSEs, existing affordable housing programs. Those are programs already in effect. There was some question about whether they would be affected. The amendment makes clear what was implied. I expect that one will find no change in it. In any event, that is not the point. The point is to remove the tax the Banking Committee provided, which is a tax on GSEs which, without any input or other involvement, would pay support for a whole range of groups. There are many groups, such as ACORN and others who build low-income housing. Who knows, it might even be Habitat for Humanity. But they would be able to use these funds to provide soft costs to support the programs and other related costs.

Fannie Mae and Freddie Mac should be able to continue to use their existing affordable housing program that they administer, that they were set up to do, and not have their funds taken away to fund another program over which they have no control, no responsibility. There is absolutely no reason to tax these entities to support housing groups which may or may not be responsible or capable of administering good housing programs. There will also be additional economic risks to Fannie and Freddie, depending on the use of these funds and the quality of the groups which receive these funds.

More critical is the unprecedented approach that requires the GSEs to pay a tax for something for which they have no responsibility.

Let me be clear, the GSEs have a mission. They have a very important mission. When we initially talked about this program, we talked about giving them more authority to go in and help in these situations. Statements made on the other side that we are going to cut off all funding and all assistance to homeowners in distress are absolutely irresponsible and totally without basis. We provided and I believe this body adopted some good ideas--I will speak about those in a minute--in previous bills on how we deal with the housing crisis. But right now what we are saying is, let's stop this.

This is saying to the GSEs, you may have some excess left over after you have carried out your affordable housing mission. We want to come in and take it away from you and spend it someplace else. Let's be clear, this is not saying to the entities that we want you to do your mission. We are saying we are going to take away money that you put into your mission. We are saying, forget your mission. We are going to take some of your revenue raised in

part from capital markets where private sector shareholders have their retirement funds, their annuities, or their investments in those companies, hoping and expecting to share in the revenue. That may be pension funds, retirement funds, endowment funds that are counting on getting some of that revenue. Oh, excuse me, even though the GSE has carried out the mission that we asked of it and generated some ``excess'' revenue that might be distributed to those people who put up capital in the GSEs, we are going to take it away.

How long before this body decides to go to other GSEs, such as Sallie Mae, and say: We have a better idea. We are going to take any revenue you make and we are going to put it someplace else? Or to utilities and say: You are regulated, and you may have some excess money left over that you wish to return to your shareholders, but since you are regulated, since you have a government franchise to provide utility service, we are going to take some of your revenue and put it elsewhere? To me that is an unconscionable grab. It offers a precedent that is very dangerous for this body, to be taking funds from one entity and transferring it to another entity by fiat. It is discriminatory, and it has the potential to have a significant impact on the people who have put their money into these funds.

I ask again if my colleagues have had an opportunity to review the modification as sent forward?

That is correct. There is no intent to correct that.

That is the purpose of the modification.

That is correct.

I thank the Chair and yield the floor.

Madam President, I ask unanimous consent to add the Senator from Wyoming, Senator Barrasso, as a cosponsor of the amendment No. 4985.

Madam President, to begin, I think I should make some general comments about my concern and about my ability to work with the distinguished chairman of the committee on affordable housing programs. We have worked a long time on these programs together, and he and I, together, pushed for $180 million for counseling for families facing foreclosure. We have gotten that passed. I have been out and talked with the people who are victims, the people who are helping them, the local officials, and that is working.

Based on what I learned from talking to the people who are suffering from this foreclosure epidemic and from the real problems in the subprime market caused by predatory lending, which the Senator from Maryland, Ms. Mikulski, and I tried to get HUD to stop a few years ago, we came up with a solution. That solution I offered on the floor: the Security Against Foreclosure and Education Act, the SAFE Act, most of which was incorporated in the housing bill we passed in April. I believe those things went at this problem in the right way. We understand there is a problem.

What I am saying is I fear that taxing GSEs or taking money, expropriating money from GSEs and setting up this HOPE Now Program is a false hope because FHA can't manage it, and they are likely to have a tremendous impact, No. 1, potentially on the housing budget coming out of the taxpayers' pockets. We don't have enough money to pay for all the things we need to do for public and assisted housing.

The SAFE Act said reform FHASecure so it could work for somebody who had missed a payment or two, lower the GSE's capital requirement so they could lower this capital housing program; also, provide $10 billion of authorization for State housing finance agencies to raise additional funds to refinance these mortgages which are in default. That, I believe, is the best way to do it. That is why I am very much concerned that we are going down the wrong road, trying to put a burden on the FHA to do something they are not up to. I am afraid the HOPE Program is a false hope for 130,000 families who will enter the program and then default and face foreclosure.

The hope is the FHA will somehow be able to dispose properly of those 130,000 homes while they are trying to manage their portfolio. Experience shows that will not work. No matter what kind of board you set up, FHA cannot take on all those additional responsibilities. This program is far more likely to result in a huge bailout for lenders, while protecting a very limited number of homeowners.

The Congressional Budget Office--hear this: the Congressional Budget Office estimates that under this program, mortgage holders would have an incentive to direct their highest risk loans to the program. They estimate the cumulative default rate of the HOPE Program would be 35 percent--one out of three--worst of the worst loans and

FHA would get them. Where would they get them? From companies that have been a part of the problem.

According to the Wall Street Journal, Countrywide issued $167 billion--Countrywide Financial, $167 billion. They had 11 percent of the subprime market and now, according to the Wall Street Journal, they have $30 billion of it, either in their own foreclosures or for those they have offered a guarantee. So there is $30 billion of bad loans on which Countrywide is at risk, and this program could be used to refinance all those programs.

If a lender or a holder was facing foreclosure and knew he had to go to foreclosure, it calculates the cost of foreclosure and takes some of that off the value of the home and refinances that value and hands it off to FHA, and FHA gets stuck--gets stuck with it. The FHA has shown they cannot manage and implement the existing loan activities. You can read the lengthy IG reports, the GAO reports. Anybody who has looked at the FHA said they can't handle the job now. They have expanded from 2 percent to 6 percent of the market, and they can't even handle that additional level now.

The head of the FHA said this could be a tremendous burden on his agency and potentially on the taxpayers. If FHA is ultimately held at risk for these, they could be in a position where money that would otherwise go to support Section 8 vouchers or public housing operating or capital subsidies would have to be diverted to FHA to pay back the worst of the worst loans--according to CBO--the worst of the worst loans that would be pawned off on the FHA.

Nobody cares more than I about dealing with and providing as much help as possible to those people who are unfortunately facing foreclosure, perhaps because of lack of information or even misinformation that was given them about the loans into which they entered and the change in the market which caught them unaware, such as the situation I discussed earlier today of Mr. Willie Clay, the Vietnam veteran who found his mortgage rate readjusting 50 percent higher, which would throw him out of the house. He had an 8.2 percent rate and it was going to go up to over 12 percent. He needs help. These people need help. But bailing--let us bail out the people who are in trouble through the housing--State housing finance agencies or FHASecure; don't have FHA set up to take the fall with the worst of the worst loans from lenders, some of whom may have been ones who put us in the problem.

I urge the support of my two amendments and I yield the floor and reserve the balance of my time.

Madam President, a couple of months ago, we passed a good bill to say we would authorize $10 million for State housing finance agencies to help refinance homes where the owners were facing foreclosure. A good approach. This is a disastrous approach. CBO has said that the lenders--the people, some of whom made some of the bad loans in the first place--will dump the worst of their worst loans on

Madam President, I move to waive the applicable points of order of the Congressional Budget Act with respect to the amendment, and I ask for the yeas and nays.

Madam President, there is no doubt that right now American families are being squeezed on all sides. Gas prices are sky high and climbing. The cost of food is going up. So is the cost of college tuition and health care. So it is no surprise that ``change'' is the word everyone is talking about.

My colleagues on this side of the aisle and I want change, too, but we want commonsense solutions. We are the party of economic security. We think we should keep more of the money we earn. We favor more private sector solutions to health care. We want America's energy future to be here in America, not the Middle East. We want to change the disastrous policy that has been implemented and kept by our fellow colleagues on the other side of the aisle for the last 30 years, a nonenergy policy, no production. As a Washington Post editorial pointed out today, Congress cannot repeal the laws of supply and demand. Demand worldwide has gone up but supply has not.

We have the answer to that problem right here in America. We want to change it and use the resources we have. We also want a strong commitment in the war on terror. Changing back to the policies of the 1990s is not the way to win the war on terror. Senator Obama has said we should go back to the 9/11 days, when terrorism was treated as just another law enforcement matter. He pointed to the prosecution of the World Trade Center bombers as the example to follow. That is precisely the type of policy that led to attacks on American embassies and the USS Cole. That is the kind of change that will make the Nation less safe again.

If the Democrats wish to talk about change, let's talk about change, change that matters and change that they have been unwilling to acknowledge, a change when we started executing the war on terror by going after the terrorists in the safe havens. We have kept our country safe from attack since 9/11. Under the leadership of GEN David Petraeus, Iraq has changed and changed dramatically. So why can't my colleagues on the other side of the aisle change with it. Why can't they change their stance and get behind our service men and women who want to succeed and have had tremendous successes?

President Bush announced the surge and the new counterinsurgency in 2007. Iraq was a violent place at the time. Al-Qaida in Iraq held large swaths of territory. Shiite death squads roamed much of Baghdad, and the Iraqi political leadership appeared helpless. So President Bush, understanding the consequences of failure and withdrawal, changed. He changed military leadership. General Petraeus changed to a new strategy, a strategy for victory, of counterinsurgency or COIN that involves getting out among the Iraqi people, working directly with Iraqis committed to a peaceful, stable Iraq. That is a change my son saw in Al Anbar, when his Marine scout sniper platoon helped clear Al Anbar and turn it over to Sunni citizens and police. We still face big challenges in Iraq but with a far more optimistic picture emerging. Al- Qaida has been almost, if not completely, routed in Al Anbar, once declared the center and base of operations for al-Qaida in Iraq.

On May 12 of this year, a prolific terrorist sympathizer by the name of Dir'a Limen Wehhed posted a study on the Internet in which he laments ``the dire situation that the mujaheddin find themselves in in Iraq.'' He is talking about his guys, the bad guys. He cites the steep drop in the number of insurgent operations conducted by various terrorist groups, most notably al-Qaida's 94 percent decline in operational ability over the last 12 months. In Sadr City, Iraqi forces, the forces of the Iraqi Shiite leader al-Maliki, have rolled through huge Shiite enclaves relatively unopposed. Iraqi forces did the same in April in the southern city of Basra, where the Iraqi Government advanced its goal of establishing sovereignty and curtailing the powers of the militias.

When General Petraeus returned to Washington in September of last year, even at that time he reported that the number of violent incidents, civilian deaths, ethnosectarian killings and car and suicide bombings had declined dramatically from the previous December. But despite all this positive change, many on the other side of the aisle are too vested in political defeat to see it. In fact, most Democrats opposed the surge, claiming it is more of the same and would neither make a dent in the violence nor change the dynamics in Iraq. The Democratic leader proclaimed ``This war is lost'' and that U.S. troops should pack up and come home, a disastrous change that even many thoughtful scholars and commentators who opposed going into Iraq initially say now is not the way to go. It would be a disaster. General Petraeus returned again to Washington in April this year, and violence has been reduced further. American casualties have declined significantly. Al-Qaida was virtually eliminated in the northern city of Mosul, as verified by the terrorists themselves. There are more Iraqi security forces. The Iraqi Government has passed a variety of laws promoting reconciliation. Prime Minister al-Maliki continues to demonstrate he can stand up to fellow Shiites supporting violence and Iranian-backed special groups. There is every reason to embrace the positive change we have seen and not abandon it and not force a withdrawal. For that is not change but, rather, a policy that would put Iraq back on the path toward violence, terrorism, and chaos.

The change we have made has made our country safer, going after terrorists, helping Iraq stabilize their country, turning control over to them, and moving our forces back from the front lines of offense to a support role. That is the change we need to keep our country safe for the future from terrorist attacks.

I yield the floor.

Mr. President, as I have said before on this floor, I think it is time for us to get real about energy. It is time for us to get real about lowering gas prices.

The American people, as we all know if we have listened to our folks when we go back home, are suffering from record-high prices of gasoline.

Now, in response to the record pain at the pump, the American people deserve something more than legislative gimmicks that raise taxes, increase litigation or provide political favors. It is a startling place many of our Democratic friends now find themselves in. They seem to believe that for every problem there is a tax increase that can help.

If there is someone you do not like or want to take a shot at, raise their taxes. You have a problem that needs fixing, raise the taxes. We saw that with the climate debate last week. To address the issue of climate change, the bill proposed, and the amendment we did not adopt last week proposed, to raise energy prices $6.7 trillion to lower energy demand and pay for new Government programs and spending.

With record-high prices for gasoline, climate sponsors wanted to raise gas prices a further 53 cents by 2030 and $1.40 by 2050. This week brought a new attempt to raise taxes. Well, last week some quibbled about whether the $6.7 trillion in higher energy prices was a hidden tax or a hidden fee. It did not make much difference to the people who would pay it. There was no hiding from the fact that a tax increase is what the Democrats proposed this week.

This week they proposed raising taxes on the exploration and development of new oil supplies. You know, folks back home cannot believe that. Those looking for new sources of oil for the American people would pay higher taxes to find and deliver that oil to us. I have a hard time believing that too.

But we folks from Missouri do not take words at their face value. We call ourselves the Show-Me State for a reason. You need to show us how raising taxes would help this situation. For me, personally, I have not ever seen a time when raising taxes on something lowered its price or produced more of it.

I think our minority leader pointed out the Los Angeles Times said raising taxes to deal with the oil supply was similar to a climatologist saying trees caused global warming.

Well, it is economics 101, folks. Raise taxes, you get less of it. You increase exploration and development and you get more of it and you lower the price. In this case we actually have the experience about what President Carter did. In the mid-1970s, he pushed through higher taxes on domestic oil production.

What a disaster that was. Oil companies reduced their U.S. domestic operations and went overseas. The result was a greater U.S. dependance on oil from the Middle East, which continues today. Why our friends on the other side of the aisle would want to return us to the days of Jimmy Carter, I do not understand.

It may feel good to some people to propose hurting American consumers by putting a tax on the oil industry or on the executives, it may sound good, but it winds up hurting the American people. The Democrat bill failed to get support. It contained other provisions that would hurt consumers as well.

One section would allow the Department of Justice to sue, to sue those countries for their membership and participation in OPEC. Now, that is a feel-good provision as long as you do not think about what would happen. How can anyone doubt that an OPEC country facing the prospects of U.S. lawsuits--if we could have jurisdiction over them, and I question that--would stop selling oil to the United States and take their oil someplace else, such as China.

Again, the Democrat bill would hurt suffering Americans by driving oil supplies away from the United States for fear of litigation.

Speaking of litigation, we sure didn't hear much from supporters of the bill about the $1.6 billion in tax breaks for trial lawyers hidden in the legislation to extend renewable energy tax credits. Section 311 would allow trial lawyers working on contingency $1.6 billion in tax breaks. Apparently, the suffering of trial lawyers is more important to some in the Democratic Party than the suffering of the American people paying record prices at the pump. The tax breaks for trial lawyers is one section before the tax provisions before film and television producers. Section 312 modifies tax deductions for domestic film and television production. It gives special tax treatment for U.S. actors, directors, and producers.

Obviously, I support tax breaks for U.S. workers. But why does the Democratic Party think tax breaks for American actors are more important than price relief for moms and dads suffering record gas prices?

Why does the party on the other side think tax breaks for Hollywood film producers are more important than price relief for American truckers suffering record diesel prices?

At the same time the Democratic bill is giving tax breaks to trial lawyers in Hollywood, they are blocking the American people getting new oil supplies they need to bring gas prices down. I am a cosponsor of a bill entitled ``The American Energy Production Act of 2008.'' If enacted, this legislation

would produce up to 24 billion barrels of oil from U.S. domestic sources. The bill would allow environmentally friendly access to roughly 10 billion barrels of recoverable oil in northern Alaska.

I challenge anyone who opposes opening access to Alaskan oil to read the bill and see all of the environmental requirements it contains. I challenge them, if they haven't done so, to go to the North Slope of the Bering Sea and see the drilling going on at Prudhoe Bay 45 miles to the west of ANWR. They have been drilling there. They drill in an environmentally friendly way. They have to put the roads in in midwinter, when it is 200 degrees below zero. They are rock roads. They don't disturb the environment. As a matter of fact, the caribou love them. The caribou herds are flourishing. The wolves are great. The flowers are just as good as they are elsewhere. The mosquitos are just as big as they are in the lower part of Alaska. That drilling is being done without environmental damage.

About 30 miles to the east Canada is drilling. Several hundred miles to the west Russia is drilling. They are producing significant amounts of oil. Oil drilling in Alaska or exploration in the deep sea or recovering oil from shale would take advantage of the latest, most modern, environmentally friendly drilling and development technology. Today we have modern oil rigs that can drill down and then virtually sideways far beneath sensitive surface areas needing protection. Oil rigs at sea are now so safe they can withstand hurricanes without spilling a drop of oil.

There are thousands of oil rigs off the coast of Louisiana. Did anyone hear a report about an oil spill after Hurricane Katrina? No. Because it didn't happen.

This is the kind of environmentally protective technology we would use to open oil reserves in the seabed off America's coasts. Experts know of at least 14 billion barrels of oil off our Atlantic and Pacific coasts so far out to sea they couldn't be seen from shore. There may be many more. There are much higher estimates. This number is probably an understatement because they have not even mapped many of these areas and explored for oil reserves. We also have a massive supply of oil in oil shale in the mountains of Colorado, Utah, and Wyoming. The shale is so thick with oil one can smell and feel it in the rocks. With oil at $10 a barrel, it was too cheap to make oil shale affordable in the 1970s and 1980s, but prices at even half of today's level would be enough to unlock U.S. oil reserves in shale: roughly 2 trillion, it is estimated, barrels of oil, and that is seven times the reserves of Saudi Arabia.

Why should we be begging OPEC or Saudi Arabia for more oil when we have seven times the oil Saudi Arabia has in that one area alone?

Opponents say no. They give us the NIMBY treatment--not in my backyard. Unfortunately, they don't limit themselves to blocking action in their backyards. They limit everybody else's backyard as well.

We had a classic vote in the Appropriations Committee in May-- unfortunately, a straight party-line vote--whether to lift the moratorium and allow the preparation for environmentally friendly exploration and development of shale oil. Fifteen of my Democratic colleagues voted no; 14 Republican Senators, including me, voted for opening it. We failed. In Alaska, the people fully support opening northern Alaska to further environmentally safe oil extraction. It is the elected representatives of other States far below to the east of Alaska who want to thwart the will of the people of Alaska.

The people of Virginia fully support opening oil reserves in the deep ocean off their shores, but elected officials from California and other States from the West want to thwart Virginia's desire. The people of Utah support opening the oil reserves under their mountains, but it is the interest groups in Washington, DC, and other States that are thwarting the people of Utah.

The people of my State don't understand why we are blocking access to U.S. oil reserves. They don't understand why we are withholding new supplies needed to get prices down. They don't understand why we are denying ourselves the relief we need and deserve.

In my State we mine lead. Lead has environmental problems. We have to deal with the environmental problems, and we do. There is only one simple reason we mine for lead. We have 90 percent of the lead in the United States, and it is needed for technology. But at the same time on energy, we in Missouri are working hard to develop new, clean sources of fuel and ways to reduce energy demand.

Kansas City, MO, is a national leader in hybrid cars and the advanced vehicle batteries they need. We have a Ford plant where Missouri autoworkers assemble the Escape hybrid SUV. We also have a GM plant where they assemble hybrid SUVs and sedans. In the Kansas City area, we have an advanced battery manufacturer producing the next generation lithium-ion batteries. They use a polymer technology to improve performance and safety. Our military is taking advantage of this technology now, and someday it will go into our automobiles. Trying to stay one step ahead, we are also working on the next generation of hybrid cars. Right after these remarks, I intend to go outside to the area we call the swamp, just northeast of the Capitol, to see a plug-in hybrid Ford Escape brought to town for the Department of Energy.

Plug-in technology would allow us to begin to travel the first 40 miles of every trip on electricity, without burning a drop of gas. Many families and commuters in the city could go the entire week back and forth to work burning no gasoline. Rural folks and farmers could drive their trucks with plug-in hybrid technology into town and around the farm. Then, when they need to haul a load great distances, the traditional engine would automatically kick in.

I introduced an amendment to the climate bill last week which would have helped workers, the environment, and costs for Americans by starting the U.S. domestic manufacturing supply base for hybrid batteries for automobiles. Hybrid cars are more expensive than traditional cars because their hybrid batteries are made in low quantities in Japan, Korea, and China. Not surprisingly, those firms favor their Japanese and Korean auto manufacturers, and whatever is left comes to U.S. carmakers. The answer to this problem is mass U.S. production that will produce hybrid batteries in high volumes and cause prices to fall, putting thousands of U.S. workers in good manufacturing jobs in Missouri and across the Nation. It would be a win/win situation--good for the environment, reducing oil demand; good for consumers who need cheaper cars that burn less gas; and good for workers needing good-paying jobs at home.

I introduced an amendment that would have provided Federal funds. Unfortunately, that amendment, like others, was blocked from consideration by climate bill sponsors. I will continue to fight for a commonsense proposal, and that is what we need. We need to get past gimmicks, charges, and countercharges, taxes, ranting and railing and lawsuits. The American people need fundamental relief for a fundamental problem: prices are high. There is too much demand, not enough supply. It is economics 101, as I said. We need a comprehensive solution that provides the American people with more supply and less demand and also with more environmentally clean solutions.

Last year we addressed demand through higher, newer, aggressive but achievable CAFE auto efficiency standards. Yet, as we have seen, demand strategies have not stopped the record increase in prices. We need to address supply--billions and billions of barrels of oil on our land, under our land, off our shores, in our mountains. That is what the American people need--not gimmicks, not increases in taxes, not more litigation, not tax breaks for trial lawyers or Hollywood.

I urge my colleagues, it is time. Let's get real about our energy strategy so we can provide Americans the real relief they deserve and we ought to be providing.

I yield the floor.

Mr. President, may I ask for 1 minute from the ranking member.

Mr. President, my thanks to the committee leaders for bringing forward the nominations to the Senate of Judge Greg Kays and Stephen Limbaugh to be Federal district court judges for the Western and Eastern District Courts of Missouri. Both Judge Kays and Judge Limbaugh are outstanding nominees for the Federal bench. They share bipartisan support, have fine legal minds, long records of public service, and represent the values and character of my Missouri constituents.

Both men's modesty matches the modest size of their Midwestern hometowns. But as we have seen so many times in our history, great men, men of learning, men of intellect and excellence, come from modest places.

One should not doubt this to be the case. Values of fairness, service, kindness, community, learning, self-reliance, and personal responsibility are those that we value in our constituents, in our small-town communities, and we should value in our judges. I think this confirmation process has succeeded in producing two such men.

I thank the Chair, I thank my ranking member, and I yield the floor.