Floor Statements

Mr. President, today, I introduce legislation to close a series of statutory loopholes setting free convicted sex offenders who failed to register and notify their communities of

their status as required by Federal law. I was outraged recently to learn this was going on and I am sure you will agree that we must end this injustice. I urge my colleagues to join me in support of this legislation.

Under the Sex Offender Registration and Notification Act, SORNA, passed as part of the Adam Walsh Child Protection and Safety Act of 2006, sex of-fenders are required to register with local authorities and notify those authorities when they move or change jobs. However, judges in Michigan and Pennsylvania have freed sex offenders arrested for failing to register because of doubts over whether the statute applies to sex offenses committed prior to SORNA's implementation. A Missouri judge freed a noncomplying sex offender questioning whether provisions extending Federal jurisdiction operated retroactively.

In the Missouri case, a Federal judge released convicted sex-offender Terry L. Rich after his arrest for failure to register as a sex offender upon moving to Kansas City 20 months ago. Mr. Rich arrived after a prison stint in Iowa for failing to register there based on his previous convictions for felony sexual abuse of a child, kidnaping, indecency, child molestation and felony sexual battery of a young girl. SORNA extends Federal jurisdiction to State sex offenders by applying to those who ``travel'' in interstate commerce, and Mr. Rich seemed to qualify by moving from Iowa to Missouri in March 2006. However, the judge ruled that since Mr. Rich ``traveled'' prior to SORNA's enactment in July 2006, he was not covered by the law's present tense ``travel'' requirement.

The Pennsylvania court freed persons hiding convictions of sexual assault, rape, statutory rape, indecent assault and corruption of the morals of a 6-year-old girl. The Michigan court freed a sex offender who failed to register after convictions of first-degree rape and sodomy.

The bill I propose closes the loopholes cited by the Missouri, Michigan, and Pennsylvania courts to ensure that SORNA's registration requirement applies to sex offenders irrespective of the date of their offense or date of interstate travel. These are simple fixes to the code, but vital to ensure that no more convicted sex offenders can hide in our neighborhoods.

Mr. President, today, I introduce legislation to close a series of statutory loopholes setting free convicted sex offenders who failed to register and notify their communities of

their status as required by Federal law. I was outraged recently to learn this was going on and I am sure you will agree that we must end this injustice. I urge my colleagues to join me in support of this legislation.

Under the Sex Offender Registration and Notification Act, SORNA, passed as part of the Adam Walsh Child Protection and Safety Act of 2006, sex of-fenders are required to register with local authorities and notify those authorities when they move or change jobs. However, judges in Michigan and Pennsylvania have freed sex offenders arrested for failing to register because of doubts over whether the statute applies to sex offenses committed prior to SORNA's implementation. A Missouri judge freed a noncomplying sex offender questioning whether provisions extending Federal jurisdiction operated retroactively.

In the Missouri case, a Federal judge released convicted sex-offender Terry L. Rich after his arrest for failure to register as a sex offender upon moving to Kansas City 20 months ago. Mr. Rich arrived after a prison stint in Iowa for failing to register there based on his previous convictions for felony sexual abuse of a child, kidnaping, indecency, child molestation and felony sexual battery of a young girl. SORNA extends Federal jurisdiction to State sex offenders by applying to those who ``travel'' in interstate commerce, and Mr. Rich seemed to qualify by moving from Iowa to Missouri in March 2006. However, the judge ruled that since Mr. Rich ``traveled'' prior to SORNA's enactment in July 2006, he was not covered by the law's present tense ``travel'' requirement.

The Pennsylvania court freed persons hiding convictions of sexual assault, rape, statutory rape, indecent assault and corruption of the morals of a 6-year-old girl. The Michigan court freed a sex offender who failed to register after convictions of first-degree rape and sodomy.

The bill I propose closes the loopholes cited by the Missouri, Michigan, and Pennsylvania courts to ensure that SORNA's registration requirement applies to sex offenders irrespective of the date of their offense or date of interstate travel. These are simple fixes to the code, but vital to ensure that no more convicted sex offenders can hide in our neighborhoods.

Madam President, first, I ask unanimous consent that Senator McCain's legislative fellow, Navy Commander Scott Butler, be granted floor privileges during the second session of the 110th Congress.

Mr. President, first of all, we thank all our colleagues for coming to this point where we can have votes and finally get this bill out, which we started in December. It is a very important bill. We have worked together on a bipartisan basis and resolved almost all issues.

The amendment offered by our colleague from Rhode Island has been modified in a way that I believe improves it, makes it effective, makes it work for the intelligence community, and achieves the very important goals that the Senator from Rhode Island has sought to achieve.

I ask that I be added as a cosponsor to this modified amendment. I believe, Mr. President, we can accept it by voice vote.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Amendment No. 3910

Mr. President, the bill before us, S. 2248, already has an exclusive means provision that simply restates the congressional intent back in 1978 when FISA was enacted to place the President at his lowest ebb of authority under the Constitution, which gives him power over foreign intelligence. Unfortunately, this amendment is a significant change of the bipartisan provision in the Intelligence Committee bill, and therefore I would urge my colleagues to oppose it.

During the next attack on our country or in the face of an imminent threat, Congress may not be in a position to legislate an authorization. Yet the bottom line is, we just don't know what tomorrow will bring. This provision would raise unnecessary legal concerns that might impede the effective action of our intelligence community to protect this country.

Further, because this amendment does not address warrantless surveillance in times of war and national emergency following an attack on our country, it does not provide enough flexibility for intelligence collectors. I am concerned this will cause operational problems.

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

Mr. President, I would note that the Intelligence Committee debated this and accepted a return to the original FISA exclusive means provision, which I think we should maintain, and I urge opposition.

S. 2248 already has an exclusive means provision that is identical to the first part of this amendment. That provision simply restates Congress's intent back in 1978 when FISA was enacted to place the President at his lowest ebb of authority in conducting warrantless foreign intelligence surveillance.

The current exclusive mean provision in S. 2248 was acceptable to all sides because it maintains the status quo with respect to the dispute over the President's constitutional authority to authorize warrantless surveillance.

Unfortunately, this amendment is a significant expansion of the bipartisan provision in the Intelligence Committee's bill.

It goes further by stating that only an express statutory authorization for electronic surveillance, other than FISA or the criminal wiretap statutes, shall constitute additional exclusive means.

This attempts to prohibit the President's exercise of his judicially recognized artic1e II authority to issue warrantless electronic surveillance directives.

It also would require that future authorizations for the use of military force, AUMFs, expressly state that they authorize the use of additional electronic surveillance.

I am concerned that this amendment would tie the President's hands following a national emergency or imminent threat of attack on our country--and prevent actions or intelligence collection that may be necessary for our safety and survival.

While FISA currently has provisions that allow the President to conduct electronic surveillance, physical searches, or install pen register/trap and trace devices for 15 days following a declaration of war, these authorities are simply insufficient against the current terrorist threats our country faces.

Let's think this through for a minute. During the next attack on our country, or in the face of an imminent threat, the Congress may not be in a position to legislate an express authorization of additional means. We may not be in a position to formally declare war against an unknown enemy.

What if there is intelligence information about an imminent threat of attack, but Congress is in a lengthy recess, over a holiday? What if there are simultaneous terrorist attacks across the country, impeding air travel so that Members cannot return to Washington, DC?

The bottom line is, we just don't know what tomorrow will bring. Yet this provision would raise unnecessary legal concerns that might impede effective action by the executive branch to protect this country.

I have the utmost respect for Senator Feinstein. She has played a key role in this FISA modernization process.

While our views on the President's constitutional authority may differ, she did convince me that a bipartisan FISA bill should restate the exclusive means concept in the originally enacted FISA statute.

And over the past several weeks, Senator Feinstein and I tried to come up with a further compromise, one that would expand this simple restatement but would also allow the President to act in the event of a national emergency, or following an AUMF or declaration of war.

Unfortunately, we could not reach an agreement. I believe that if we are going to declare that the President should follow the current FISA framework, then we need to make sure that that framework is flexible enough to address the grave threats of terrorism that threaten our country--and that means giving the President the ability to conduct warrantless electronic surveillance, physical searches, or installing pen register/trap and trace devices, for a reasonable period of time. This amendment does not provide this flexibility.

I have other concerns with this amendment. It would make members of the intelligence community who conduct electronic surveillance at the direction of the President subject to the FISA criminal penalty provisions of a $10,000 fine and imprisonment for not more than 5 years. Also, it is likely these criminal penalties would apply to any service provider who assisted the government in conducting such electronic surveillance.

I don't care what the skeptics and critics have said about the President's Terrorist Surveillance Program; the Constitution trumps the FISA statute.

If a government employee--or a provider--acts under the color of the President's lawful exercise of his constitutional authority, that employee should not be subject to criminal penalty.

In my opinion, the current restatement of exclusive means is fair and keeps the playing field level.

Ultimately, the Supreme Court will decide whether Congress has the authority to limit the President's authority to intercept enemy communications.

Until then, it is my hope that we don't try to tilt the balance in a way that we may someday come to regret.

I urge my colleagues to vote against this exclusive means amendment.

Mr. President, the purpose of this bill is to make sure we are able to get information when we target a foreign terrorist overseas.

This applies a different standard to someone in the United States who may be picked up on one of those calls than we apply within our own country. If the FBI gets a warrant to listen in on a drug dealer and that drug dealer has lots of conversations, if the drug dealer is talking about a criminal operation, then the FBI acts on it. If it is innocent, the FBI, the interceptors minimize or suppress that evidence, they do not sequester it, they do not have to go through the hoops that are required for a recipient of a telephone call from a foreign terrorist overseas.

There is no reason why, when we have no challenges and no question that minimization is adequate to protect innocent Americans, that they need a higher level of protection when they are talking to a foreign terrorist than when they are talking to a U.S. drug dealer.

I urge the defeat of this amendment.

I move to reconsider the vote.

Mr. President, this carrier liability provision is an essential part of this bill. If we permit lawsuits to go ahead against carriers alleged to have participated in the program, there will be more disclosures in discoveries and pleadings of the means of collecting information, disclosing our most vital methods of collecting information.

Secondly, if we permit the carriers that may or may not have participated to be sued in court, then the most important partners the Government has--the private sector--will be discouraged from assisting us in the future.

The Intelligence Committee--the one committee that has looked at this--reviewed it and said these companies acted in good faith and, therefore, we should give them retroactive immunity.

I yield the remainder of my time to the distinguished chairman.

Mr. President, there is a clear delineation in this bill. We permit targeting of foreign terrorists overseas, or Americans, with a court order. This doesn't permit listening in on bulk collections of communications involving innocent Americans. The only American who is going to be listened in on is one calling to or receiving a call from a terrorist.

I urge defeat of this amendment.

I move to reconsider the vote.

Mr. President, with the distinguished chairman of the committee, we offer this amendment responding to a request made by the Director of National Intelligence when he sent up his recommendations to us last April. He and the Attorney General strongly support this amendment because it adds proliferators of weapons of mass destruction to the definition in FISA of agent of a foreign power, foreign intelligence information, use of information, and physical searches. This amendment applies only to non-U.S. persons.

Making these definitional changes will allow the Government to target for surveillance those who seek to spread this dangerous technology and will enable the intelligence community to share information with other agencies. It remains a central concern for our national security, whether done by terrorists, criminals or other nations.

I believe we can accept this amendment on a voice vote. I turn to my distinguished chairman for his comments.

I move to reconsider the vote.

Mr. President, for all the reasons we voted down striking retroactive immunity, this amendment must be defeated as well because it would continue to disclose all the methods of collection in electronic surveillance and it would put at risk the private parties.

I ask for the yeas and nays.

Mr. President, I move to reconsider the vote.

Mr. President, the FISA Court was not set up to make judgments about the operation of foreign intelligence. As a matter of fact, they said specifically, in a case released in December, that is a matter for the executive branch.

Now, there are some people who say there ought to be a court challenge to the President's terrorist surveillance program. Let me remind my colleagues that there are seven cases proceeding against the Government and Government employees which will not be impacted by this bill. Every day that litigation continues, whether it be in a FISA court or in open court, there is a danger of leaking of information.

There could be disclosure of our methods, and there could be risks to employees of the companies in areas of the world. Certainly their bottom line could be impacted. As Senator Durbin pointed out last week, leaks of classified information caused severe harm to a company in his State.

I urge the defeat of this amendment.

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

Madam President, is there time remaining on this side prior to the vote?

Madam President, with the sufferance of the minority leader, I thank my colleagues, especially Senator Rockefeller, and all those who worked with us. We have had to make a number of very tough votes. We made some good changes in the bill. I thank, particularly, Senators Wyden, Feinstein, and Whitehouse for working with us to achieve their objectives in a way that would allow the program to continue.

Approximately 10 months ago, the DNI, Admiral McConnell, came to Congress and asked that we update FISA. Changes in technology had resulted in the FISA Court rulings or interpretations that impeded the effective use of electronic surveillance against terrorists overseas.

This problem came to a head in May 2007, when there was a FISA Court ruling causing significant gaps in our intelligence collection against foreign terrorists. Throughout the summer of 2007 and amid growing concern of increased threats to our security in light of these gaps, Congress was asked by the DNI to act. And Congress, in August, passed the Protect America Act, a short-term fix that did what it was supposed to do. It was lacking in one important aspect; it did not provide civil liability protection to those private partners who assisted the intelligence community.

Following passage of the PAA, Chairman Rockefeller and I immediately set to work to come up with a bipartisan permanent solution. We worked closely with the intelligence community.

In the end, after many hearings, briefings, debate, and visits to the facility, we did pass it on a 13-to-2 vote. We concluded that those electronic communication service providers that assisted with the President's TSP acted in good faith and deserve civil liability protection from frivolous lawsuits. As indicated by the chairman, this bill goes further than any legislation in history in protecting the privacy of U.S. persons, mostly Americans, whose communications may be acquired incidentally to this foreign targeting. For the first time in history, it requires the FISA Court to approve targeting of U.S. persons, American citizens, overseas to obtain foreign intelligence information.

This bill was a series of delicate compromises. Both sides had to give. Many of us would have preferred to have all litigation related to the TSP terminated as the DNI originally requested. Again, we agreed, for reasons set forth on the floor, that cases against Government officials--and all criminal cases--could go forward.

Others believed the FISA Court should not approve targeting of Americans abroad, particularly when these same protections are not afforded in ordinary criminal cases. In the spirit of compromise, we created a process that allows sufficient flexibility while addressing privacy concerns.

In the end, I am proud to say we have accomplished our collective goals of making sure we have a bill with clear authorities for foreign targeting, with strong protections for Americans, and with civil liability protection for those providers who may have assisted with the President's terrorist surveillance program.

We have heard debate over the past several weeks on a number of amendments that I believe would have proved harmful to our intelligence collection efforts. Some would have shut down, or severely impeded, intelligence collection against foreign terrorists. That is one of the reasons we worked so closely with the intelligence community to ascertain what could be done to increase protections without harming their ability to collect.

We now have a solid bill. The DNI will support it and the President can sign it into law. I urge my colleagues to send this bill to the House with a strong bipartisan vote. It gives our intelligence operators and law enforcement officials the tools they need to conduct surveillance of foreign terrorists in foreign countries who are planning to conduct attacks against the U.S., our troops, and our allies. It is a balance we need to protect our civil liberties, without handcuffing our intelligence professionals.

I hope we can do the right thing and pass the bill. I thank all our colleagues who helped.

I yield the floor.

I ask for the yeas and nays.

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

Madam President, again I rise to thank Chairman Rockefeller, the members of the committee on both sides, and our very able staffs for a lot of hard work, particularly by members of the committee but by many Members who are not on the committee, who took their time to learn what the electronic surveillance capabilities are, to learn what guidelines and protections there are to protect the privacy rights and constitutional rights of American citizens and help us pass this bill.

This is a bill which I hope we will at least, in large part, find the House agreeable to and that we can send it to the President. This has been a very long procedure. The chairman just pointed out that we have been working on this almost a year. We worked very hard after the August recess to come up with a good bill. I know we had some very warmly felt and vigorously argued amendments, but the fact that these would make it difficult for the intelligence community to collect the intelligence necessary to protect our interests, our allies, our troops abroad, and us here at home led a significant bipartisan majority to improve it.

Again, my sincere thanks to the leadership on both sides for allowing us to get to this important measure. We hope we will have a conference report, if necessary, or a measure from the House that we can pass before the end of the week.

So, Madam President, my sincere thanks to Members on both sides and particularly our great staffs on both sides.

I thank the Chair, and I yield the floor.

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

Mr. President, we are back on the floor beginning the third week of debate on the very important Foreign Intelligence Surveillance Act, also known as FISA. We have had a great deal of good debate. We have had a few votes.

Thanks to our leadership--Senator Reid and Senator McConnell--we now have a plan to conclude debate and go to the critically important votes on Tuesday. I thank all Members for participating. I know there are some who have comments they wish to make today and Monday. Chairman Rockefeller and I have spent 2\1/2\ weeks so far on the floor, and we understand the importance of moving quickly to get this measure adopted--gain approval from the House on a measure we can send to the President for his signature. I truly hope we can make that.

I express my thanks to Chairman Rockefeller, his assistant Melvin Dubee, all members of the committee, Louis Tucker of my staff, and others for bringing us to this position.

It is important to realize the magnitude of the danger we continue to face from radical Islamic terrorists. Probably no place was it better outlined than in testimony in open hearing by the leaders of the intelligence community. Director McConnell, head of the intelligence community, outlined the major areas of concern, backed up by CIA Director Michael Hayden; Defense Intelligence Agency Director General Maples; FBI Director Mueller, and Under Secretary of State Randy Fort for the INR.

A couple things that came out may have been missed by Members who were not fortunate enough to hear the testimony of Admiral McConnell and the intelligence community. I thought I would repeat a few of them for you. First, Admiral McConnell made it clear that even though our intelligence analysts had the availability of collection, which indicated there had been a halt in 2003 to the weaponization program for nuclear weapons in Iran, the threat that Iran poses remains great. Admiral McConnell pointed out that there is no question Iran continues to try to enrich uranium, which can be used for nuclear weapon production. He also indicated they have the skills and the facilities to turn out biological and chemical weapons, and they are working on a missile program. The halt in 2003 came, not surprisingly, after the United States went in and opposed the dangerous dictator, Saddam Hussein.

It was the capture of Saddam Hussein that led Muammar Qadhafi, leader of Libya, to decide he didn't want to be pulled out of a spider hole by American forces. He gave up his nuclear weaponization program. Personally, I think it is no accident that the same activity in Iraq convinced Iran that, for the time being, it was better to shut down their weaponization program. The top French Defense Minister indicated he was not sure they had not restarted their weaponization program. In any event, we need to continue to be concerned about Iran and its potential threat not just to our allies in the Middle East, particularly Israel, which Iran's elected leader, Ahmadi Nejad, vowed to annihilate.

Specifically, regarding threats to the United States, General Hayden outlined for us in open hearing--and more specifically in classified information--the number of threats that have been avoided, the plots that have been deterred by our resolute action. And what helped us deter the threats was, first, the active, aggressive move by the U.S. military to disrupt the Taliban and take Afghanistan out from under the control of the Taliban.

Afghanistan was a great threat and much planning was going on by al- Qaida there. There are some on the news who continue to say Iraq had nothing to do with the war on terror. For those others who have looked at the information, that is an unbelievably naive point of view. David Kay, who went into Iraq to conduct a survey of our inadequate intelligence information, said that Iraq was a far more dangerous place even than we knew. Terrorists were running wild there, Abu Mus'ab al- Zarqawi, head of Ansar al Islam was active there, and later became the AQI, leader of al-Qaida there. Al-Zarqawi became famous when he beheaded victims who didn't agree with him; he cut their heads off on television. Iraq has been designated time and time again by leaders of al-Qaida, Osama bin Laden and Ayman al-Zawahiri, as the target for their headquarters. They want to establish the land between the rivers--the Tigris and Euphrates--as their caliphate. They stated that is their objective.

Were we to leave Iraq precipitously, not only would it lead to chaos, genocide, and possible Mideast sectarian wars, but also it would ensure that al-Qaida would have the opportunity to reestablish their headquarters with recruitment, training, and command and control that would significantly increase the threats to the United States.

This is why it is essential to continue our military support in the war against terror and also provide the intelligence tools to the intelligence community needed to keep our country safe.

I thought it might be helpful to repeat a few comments that were made at that hearing. Director McConnell, along with FBI Director Mueller, outlined terrorist threats here at home--most recently, in New Jersey, Illinois, and abroad in Spain, Denmark, France, Germany, and the United Kingdom. Admiral McConnell also said:

Al-Qaida remains the preeminent terror threat against the

United States, both at home and abroad. Despite our successes

over the years, the group has retained or regenerated key

elements of its capability, including its top leadership,

operation lieutenants, and de facto safe haven . . . in the

Pakistani border area with Afghanistan known as the Federally

Administered Tribal Areas or FATA.

To expand on that further, I will explain that people who think we are not doing enough to capture Osama bin Laden and al-Zawihiri, I cannot tell you how it is happening, but it is happening in collaboration with our allies. But we have regularly captured or killed the operational head of al-Qaida, the No. 3 man. Most recently, Abu Laith al-Libby, the operational head, was killed in some kind of bomb or missile strike. At the time, of course, he had a U.S. citizen with him, apparently, Adam Gadahn, who had been cooperating actively with the al-Qaida leadership. Now, it is a fact that Gadahn was a top terrorist target. But do you know something. Without having a FISA Court order, we were able to go in and kill him--inadvertently, of course, but we would not have been, without the FISA law--particularly as we have updated it--able to listen in on his conversations. That is the one great shortcoming we learned in Iraq when we met with the head of our Joint Special Operations Command, GEN Stan McCrystal. He said the greatest threat to our troops on the battlefield was not being able to listen in on their electronic communications and see what directions they were giving to the terrorist groups threatening our troops in Iraq. That is why the outmoded, old FISA law we changed with the Protect America Act had to be revised.

In addition to the terrorist threat, there is no question that rogue nations around the world continue to seek dangerous weapons that threaten America's security. Admiral McConnell also said:

The ongoing efforts of nation-states and terrorists to

develop and acquire dangerous weapons, and the ability to

deliver those weapons, constitute the second major threat to

our safety. After conducting missile tests and its first

nuclear detonation in 2006, North Korea returned to the

negotiating table last year.

We see that North Korea has signed on to the six-party agreement, supposedly getting themselves out of the nuclear business, but some of us have grave doubts whether he will follow through. We need good information on

not only the intentions of terrorist groups, such as al-Qaida, but potentially on nations with nuclear weapons that have developed missiles and the ability and the potential of delivering by missiles the nuclear weapons against U.S. targets.

I close on the discussion of the threats by quoting from General Hayden, the Director of CIA, who said:

We face an enemy that is clearly ruthless, but it's also

one that's very adaptive, one who shuns traditional

hierarchical structures, who learns from mistakes and

therefore demands that we be no less resilient and creative.

Suffice it to say that all of the members of the Intelligence Committee said we must have the FISA bill Senator Rockefeller and I negotiated and passed out of the Senate Intelligence Committee 13 to 2 on a strong bipartisan vote. That is what we are here to pass, I hope, this coming week and send to the President by the end of the week.

Admiral McConnell said:

The authorities granted by the amendments to FISA, the

Protect America Act, which temporarily closed some gaps in

our ability to conduct foreign intelligence, are critical to

our intelligence efforts to protect the nation from current

threats. Briefly, some of those important benefits in the

bill that was signed last August include: better

understanding of international al Qaeda networks, more

extensive knowledge of individual networks, including

personnel and planning for suicide bombers; and most

importantly, greater insight into terrorist planning that has

allowed us to disrupt attacks that intended to target U.S.

interests.

He also put in a very strong pitch for the Rockefeller-Bond bipartisan bill to extend the FISA through the FISA Amendments Act of 2008. He thanked us and all the members of the committee for the leadership and hard work, and he said:

. . . and I would emphasize ``over many months''--in

drafting and passing draft legislation that governs and

enables this community. Your bill--draft bill provides the

needed updates to the Foreign Intelligence Surveillance Act.

He also went on to warn against dismantling that bill. He said:

Over the past several weeks, proposals to modify your draft

bill have been discussed. At the request of members, the

attorney general and I have submitted a detail letter that

addresses each of those issues, and it will be delivered to

you this morning. I would ask members to consider the impacts

of such proposals on our ability to warn of threats to the

homeland security and on our interests abroad.

We have received that letter. We have quoted from that letter and will continue to quote from that letter on amendments which have been proposed that the intelligence community believes would hamstring their efforts.

As a sidenote, we were able, working on a bipartisan basis, to provide significant new protections for Americans at home and Americans abroad who might be engaged in terrorist activities and are working for foreign powers as agents or officers or employees. These threats from American citizens are sometimes as deadly, as dangerous as threats from terrorists abroad. We need to be able to listen in on them.

Finally, speaking about the civil liability protection for carriers which we included, he said:

Well, I would say, in protecting the homeland it's

absolutely essential. In this--it's absolutely essential that

we have the support, willing support of communications

carriers. In this day and age, our ability to gain

intelligence on the plans, the plots of those who wish to

attack us is dependent upon us obtaining information relating

to cell phones, the Internet, e-mail, wire transfers, all of

these areas. My concern is that if we do not have this

immunity, we will not have that willing support of the

communications carriers.

That quote was from Robert Mueller, Director of the Federal Bureau of Investigation, at a hearing.

General Hayden went on to say:

These are very fragile relationships. We lost industrial

cooperation, at CIA, with partners on the mere revelation of

the SWIFT program in public discourse. Not because they were

doing anything related to the program whatsoever but just the

fear that the vulnerability they would have to their smooth

functioning of their business had caused people, who are

otherwise patriotic and committed, to back away from their

totally lawful cooperation with our agency.

One other point. When there is talk about substituting the United States as a party in litigation brought against carriers alleged to have participated, we ought to take into account some very compelling comments made yesterday by the distinguished deputy majority leader, Senator Durbin of Illinois. He pointed out that the release of a supposedly confidential letter from the Department of Justice to the Treasury about the operation of one of the major exchanges in Chicago had caused a $6 billion drop in the market value of that exchange. That means that people holding stock, many of them through pension funds or individual accounts, lost a large share of money.

As I pointed out yesterday, having the substitution of the Government for carriers, while it may remove them from the possibility of financial liability in a lawsuit, does not prevent significant damage to their business relationships here and abroad. The hit on any carriers sued under a substitution agreement, even though it is supposed to be reviewed in classified session by the CIA--everybody around here knows that if carriers are brought before the FISA Court, somebody will be talking about it, it will become news. They will suffer great harm to their business interests and potentially expose their employees and facilities here and abroad to violent attacks by terrorists or other radicals who wish to do them harm. As a result, those carriers that have cooperated in the past or considered cooperating in the past are going to be advised by their general counsels that they cannot do so willingly because they would be subjecting their employees and their shareholders to great loss. I think this is unacceptable. This is why I believe we have a good FISA Amendments Act before us, and we need to pass it.

We look forward to the debates today and Monday and voting on the amendments and, I hope, passing the bill on Tuesday so the House will have an opportunity to act. It is critical to the defense not only of our interests abroad but for the protection of American citizens at home that, with the protections we have added in the bill that came out of the Senate Intelligence Committee, we also have the ability of the intelligence community to collect vitally needed intelligence information.

We have learned that tremendously valuable information has been collected by high-valued detainees, less than 100 of them that the CIA has captured. Less than a third of that 100 have been subjected to enhanced interrogation techniques. Three of them, as General Hayden outlined, were weatherboarded, and they provided in a cooperative spirit the most important information. Beyond that, electronic surveillance is the best weapon we have to defend ourselves, to defend major population centers, tourist attractions, sporting events, and outdoor events from a terrorist attack. I hope all Members will keep that in mind as they consider the amendments which will be brought before this body on Tuesday for a final vote.

Mr. President, I yield the floor, and I suggest the absence of a quorum.

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

Mr. President, I understand that the bill is to be called back up, the FISA bill; is that correct?

If the proponent of the amendment is ready, I would suggest that we begin the final lap on these amendments.

Mr. President, I strongly urge my colleagues to defeat amendment 3915. It creates a superexclusionary rule on the intelligence community. The Attorney General and the DNI have advised they will recommend a veto.

It says: By requiring analysts to go back through relevant databases and exact certain information as well as to determine what other information is derived, this requirement places a tremendous burden, an unsurmountable operational burden on the intelligence community. I agree and yield the remainder of my time to the chairman.

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

Reserving the right to object, if I could ask the majority leader, I had talked with Senator Feingold and suggested we have 4 minutes equally divided on the next vote so he can have 2 minutes and the chairman and I may each have a minute.

Mr. President, we have made our point that it makes no sense to exclude the use of information simply because there is a deficiency, any deficiency in the certification and procedures used to target foreign terrorists overseas.

I ask for the yeas and nays.

Mr. President, I yield 1 minute on our side to the chairman of the committee.

Mr. President, there is an explicit bright-line prohibition against reverse targeting in the current bill. As the DNI said, it would be in violation of the fourth amendment. But Senator Feingold wants to replace this test with one that would make analysts engage in mental gymnastics, trying to figure out if ``a significant purpose'' is to target someone inside the United States. This significant purpose throws in an additional concern: The analysts who gather and examine intelligence need clear rules, not an ambiguous significant purpose standard.

The adoption of this amendment is seriously detrimental to the operation of our analysts and the DNI and the Attorney General would recommend a veto if it is adopted.

We worked hard, and we have a good bipartisan bill that significantly adds to the protections of civil liberties. We need to pass this bill. I join with my colleague from West Virginia, the chairman of the committee, in urging our colleagues to oppose the amendment.

I yield the floor.

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

Mr. President, I call up amendment No. 3941, as modified, the Rockefeller-Bond amendment.

Mr. President, this amendment modifies a provision of the Protect America Act. I think, along with my colleague, the chairman of the committee, it makes a lot of sense. It lays out a process for the FISA Court to conduct a review of a petition from an electronic communication service provider challenging a directive from the Government in review of a petition by the Government to enforce compliance with its directive. Having the court conduct expedited reviews of these petitions, whether from the provider or from the Government, is in everyone's best interest.

These questions are essential to be resolved one way or the other for the protection of the private partners, as well as the protection of our national security. As long as challenges of enforcement proceedings remain pending before the court, the intelligence community cannot intercept terrorist communications through that provider. Those are not unreasonable requirements. Rather, it reflects the judgment of this body and the other in the area of national security that important decisions that go to the heart of our intelligence production should be made on an expedited basis.

The DNI and the Attorney General advised us they strongly support this amendment because it would ``ensure challenges to directives and petitions to compel compliance with directives are adjudicated in a manner that avoids undue delays in critical intelligence collection.'' We could not agree more.

I hope we will be able to accept this amendment.

I yield the floor to my distinguished chairman.

I move to reconsider the vote.

Mr. President, we have made some progress today. We have laid out, through the good work of the leadership of this body, with Senator Reid and Senator McConnell, a means of going forward on Tuesday. We have now had over 2 weeks of debate on FISA. I think not only the fact that everything that could be said pro and con of all the amendments has been said, but I believe we have given everybody a chance to say it.

The good news is that when Tuesday comes around, we will have short time agreements and proceed to vote on these critically important amendments, and then we hope cloture and, if cloture is invoked, final passage, with everybody having an opportunity to express themselves.

Again, I personally express my thanks to the leadership, to the members of the committee who stood with

us and our staff, and I thank our colleagues for letting us come to this position where we see the end in sight.

Mr. President, I yield myself 6 minutes from the opposition to the amendment No. 3979, the Feingold-Webb sequestration.

During yesterday's sessions and prior sessions, there have been, regrettably, a number of inaccurate statements about the amendments we debated. Several of these amendments go to the very heart and strike at the very heart of foreign targeting. It is not an understatement to say that if they are adopted, they could shut down our intelligence collection and cause irreparable damage to our national security. So I am compelled to set the record straight. Working with my colleague and good friend, the chairman of the committee, Senator Rockefeller, we want our colleagues to know what impact these amendments have.

We have made great progress in the Senate Intelligence Committee on the FISA Amendments Act of 2008 in providing additional protections, but we did so working with the intelligence community to make sure the measures we put in the bill would actually work.

Now, the first amendment we debated was amendment No. 3979, the sequestration amendment supported by and sponsored by Senators Feingold and Webb. In explaining this amendment, supporters claimed the Protect America Act was ``sold repeatedly'' as a way to collect foreign-to- foreign communications without a court order and this amendment allows this collection. We saw from the House RESTORE Act, which the DNI has told us--the Director of National Intelligence, whom I will refer to as the DNI--and from the debate on the Protect America Act that the focus on foreign-to-foreign communications is misplaced. The Protect America Act was intended to allow foreign targeting, just like this bill and for good reason. We cannot tell if a foreign terrorist is going to be calling or communicating with another foreign terrorist whether in some other country or whether some of that communication may occasionally come to the United States, and there is no way to tell. So it does no good to give the intelligence community authority to collect only foreign-to-foreign communication. You can't tell. That means you can't collect on any without getting a FISA Court or a FISC order. That was an impossible burden that the FISC judges told us overwhelmed and shut down their operations and did not protect American citizens. Yet we were told yesterday this amendment will not damage or slow down collection.

This amendment will not just slow down collection; it will stop it. It will stop it. In the words of one intelligence official, it would ``devastate our operations.''

Now, our bipartisan bill gives the intelligence community the ability to target terrorists, foreign terrorists overseas. That targeting is not, as has been suggested on the other side, ``dragnet surveillance.'' Rather, the intelligence community will be acquiring communications of foreign terrorists, spies, and others who seek to do us harm. That is not a dragnet; that is targeted. But if this amendment were to be adopted, its unreasonable limitations will prevent the intelligence community even from beginning the collection.

Now, I argued yesterday this amendment would prevent the intelligence community from intercepting the communications of Osama bin Laden with somebody in the United States. The Senator from Wisconsin disagreed, calling my argument questionable and claiming the amendment in no way hampers the ability to fight al-Qaida. That is not true. I find it interesting because that is not what his amendment says. First, the intelligence community can't even start the collection because there is no way to know if a terrorist, including bin Laden, is going to call or be called by a person in the United States. Second, from the amendment, page 2, lines 10 to 16:

Such communications may be acquired if there is reason to

believe that the communication concerns international

terrorist activities directed against the United States, or

activities in preparation therefor.

That means if bin Laden were planning an attack against the United Kingdom or against our foreign military bases or our foreign embassies abroad and calls into the United States to talk with an associate, we could not capture that call and protect our troops, protect our citizens, protect our officers overseas, because under the terms of the amendment, it does not concern activities directed against the United States. Not only is the limitation dangerous, it is unwise, unhelpful, and could lead to significant intelligence shortfalls.

Another dangerous aspect of the amendment is that it would foreclose the collection of foreign intelligence relating to nonterrorist threats. Our Nation faces daily threats, for example, from the proliferation of weapons of mass destruction. I have an amendment that deals with this issue specifically. What about North Korea, Iran, and Syria? Under this amendment, none of that information could be collected if the communication was to or from the United States. That is a limitation that should make all of us uncomfortable. There is no basis for it, it is unreasonable, and it could lead our country into severe jeopardy.

The DNI and the Attorney General agree with my reading of the amendment. Yesterday, we received a letter from them expressing their views about these amendments. The DNI and Attorney General stated that if this amendment is part of the bill presented to the President, they would recommend a veto. They wrote this in their letter:

This amendment would have a devastating impact on foreign

intelligence surveillance

operations; it is unsound as a matter of policy; its

provisions would be inordinately difficult to implement; and

thus it is unacceptable.

Ironically, this amendment is being advertised as the best way to protect America's privacy. But a fundamental problem with the amendment is that we can never know ahead of time what a communication says. Let's think it through. In order to figure out whether the communication concerns international terrorism, for example, an analyst will have to review the content of it. That actually results in more of an invasion of privacy than would ever occur under the standard minimization procedures that NSA uses every day. That makes no sense if we are trying to protect privacy.

Mr. President, it is news to me that the Intelligence Committee bill, as claimed on the other side, has no judicial involvement and no judicial oversight. I have said it before. This bill has more judicial oversight and involvement in foreign intelligence surveillance than ever before. There is court review and approval of the joint certification by the Attorney General and the DNI and of the targeting minimization procedures. If the court finds any deficiency in these documents, the Government must correct it or cease the acquisition. That is not an empty oversight.

The Intelligence Committee bill doesn't stop there. We took tremendous care to make sure there were specific protections for Americans' privacy in the bill. I suggest all Members look closely at these protections: express prohibitions against reverse targeting, against targeting persons inside the United States without a court order, against conducting any acquisition that doesn't comply with the fourth amendment. This bill goes further than ever before in ensuring that there are protections for Americans in the area of foreign targeting.

We heard the tired accusation that this bill will allow the intelligence community to intercept communications of anyone; that it gives ``unrestrained access to communications of every American.'' That is just plain wrong. Communications of U.S. persons will be intercepted only if those persons are talking to foreign terrorists or spies. And because of the minimization procedures, only those specific communications will be intercepted, and if they don't contain foreign intelligence value, then they will be minimized or suppressed.

According to the Senator from Wisconsin, this amendment is necessary because the minimization procedures in FISA are ``quite weak'' and inadequate. I am sure the FISA Court judges who have reviewed and approved these procedures would appreciate the implication that they are doing a bad job of protecting the privacy of Americans. Ironically, it is that same court that, under the Senator's amendment, will control the Government's access and use of incidental communications.

Mr. President, I reserve the remainder of our time and yield the floor.

I am happy to yield that time to the chairman.

Mr. President, I yield myself 3 minutes on amendment No. 3913.

It is interesting to hear that the proponent of this amendment thinks the letter laying out the reasons against the amendment are reasons for it. That is a trick I have not learned, to say that when somebody says that the reverse targeting amendment would make it impossible when that person and those people really represent the agency responsible and the oversight body of the Department of Justice somehow makes their case.

I also call the attention of my colleagues to a statement from the Civil Liberties and Privacy Office of the Office of the Director of National Intelligence. In that statement, the Civil Liberties and Privacy Office says:

Concerns have been raised that the PAA could result in the

interception of U.S. person communications. As explained in

the Department of Justice September 14 letter, and in a

letter by the DNI's Civil Liberties Protection Officer dated

September 17, 2007, U.S. persons' privacy interests are

protected through ``minimization procedures,'' which must

meet FISA's statutory definition. In addition, ``reverse

targeting'' is implicitly prohibited under existing law.

As a side note, Mr. President, this measure explicitly prohibits reverse targeting, but the Privacy Office goes on to say:

The SSCI bill in addition requires review of minimization

procedures and explicitly prohibits reverse targeting. In

addition, the bill provides the FISA court with ongoing

access to compliance reports and information about U.S.

person disseminations and communications, and the explicit

authority to correct deficiencies in procedures. The bill

also requires annual reviews of U.S. person disseminations

and communications and extensive reports to Congress.

This is a clear statutory framework. As a practical matter, if there was a desire to target someone in the United States, if that person was thought to have foreign intelligence information and acting as an agent of a foreign power, an officer, or employee, a FISA Court order is the simplest way to do it. Nobody has explained how you can target a foreign terrorist to get collections on a particular U.S. person unless that person is engaged in a terrorist activity, and you have to target an overseas person who has foreign intelligence information, and that is the legitimate reason for making the collection against the foreign target. No terrorist information. The information is minimized and not used.

I yield the floor and reserve the remainder of the time.

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

Mr. President, reserving the right to object, I think our colleague is going to speak in morning business. But I will be happy to yield to the Senator from Texas.

If we can yield to the Senator from Texas for 10 minutes on the bill, the Senator from Idaho for morning business, and then go to a Member on the majority side of the aisle.

I believe there is a consensus developing for the unanimous consent request I have proposed.

Ten minutes to the Senator from Texas on the FISA bill, 10 minutes in morning business for the Senator from Idaho, and then a member of the majority side will be recognized for whatever he or she wishes to do.

No.

Mr. President, we have discussed this issue before on the floor. I urge my colleagues to vote against this amendment. As I have stated previously, the current bill, the Protect America Act, had a 6- month sunset on it only because we were not able to bring a full, complete FISA modernization bill to the floor, given the failure of Congress to act. We had been requested in April, May, June, and July to change the law. This is a bill that should establish a permanent operating authority for the intelligence community and the private partners who work with it.

As part of the compromise we reached in passing the bill, I did not believe we should have a sunset, but we agreed on a 6-year sunset. That was part of the deal. The 6-year sunset at least gives us certainty over the 6 years in time, that both the intelligence agencies, our private partners, and our allies abroad who depend upon us would have time to make this system work.

The problem we face is that any sunset withholds from our intelligence professionals and the private partners the certainty and the permanence they need to protect Americans from terrorism and other threats to national security.

Attorney General Mukasey has said there are no fatwahs with limitations by the terrorist leaders who seek to do us harm. They put out orders to keep trying to kill us, and these are not going to go away. There should be no sunset on this bill.

I disagree very strongly with my friend from Maryland that Congress is an important part of this. We passed a good bill that adds far more protections than Americans have ever had in intelligence collection. This bill is a good bill, but I can assure him that we have a strong bipartisan committee and a strong staff that will continue to oversee, supervise, and watch the surveillance to make sure it works. If we find it does not work, we should not wait for a 4-year sunset or a 6-year sunset. We should make those changes when they are needed.

We can see how long we have had to fight to get this authorization through. There was no action from the majority from April, May or June, until the very end of July. We put this bill out on the floor in October. We could not get the bill up in December because of filibusters. We had to get another 15-day extension so it would not expire.

We can act on the bill any time we need, but we cannot deprive our partners, our intelligence community, and our allies the protection if Congress cannot work.

I yield time to the distinguished chairman of the committee.

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

Mr. President, this is a great nation because we have kept our country safe. We have kept our country safe, and we are working very closely with the intelligence community. That is why we have a good bill. The intelligence community says we must have the certainty at least of 6 years. I wanted to see none. That is why we came to an agreement in the Intelligence Committee and a 13-to-2 vote said we should have this bill with a 6-year sunset.

We have a solid bipartisan product addressing civil liberties concerns, while making sure the intelligence community has the tools and authorities it needs to keep us safe.

As I said, this was an important part of our compromise to get the bill through. Our intelligence collectors and troops on the battlefield need certainty, not rules that will expire in 4 years. That is why both the Director of National Intelligence and the Attorney General strongly oppose shortening the 6-year sunset in the bill.

I urge my colleagues to join me in opposing this amendment.

Mr. President, there is a 60-vote agreement on this.

Madam President, with the time so graciously allowed us by the proponents of this measure--and I know it was not intentional--I will only say a couple of quick things. No. 1, the courts are not precluded. The underlying bill, the bipartisan bill, permits lawsuits to go forward against the Government and the Government employees. No. 2, there was notification of the Big Eight--the ranking members and chairmen of the Intelligence Committees and the leaders--when this program was started. No. 3, article 2 does give the President the power to exercise foreign intelligence collections.

I would say to my colleague who has been on the Intelligence Committee, if he doesn't think Congress has been effective in overseeing programs, he has not seen the committee that is chaired by Senator Rockefeller and on which I ride shotgun with him. The Judiciary Committee--if it was not advised, the Judiciary Committee's primary responsibility is not intelligence. That is the Intelligence Committee. We get the sensitive information. We spend a great deal of time. We have reviewed it. We believe it is a disaster for our intelligence collection to have substitution because we would see our most sensitive means of collection exposed. The private parties that might have participated would be put through tremendous economic and commercial harm and subjected potentially to harassment, and perhaps even terrorist attacks, for having worked with us.

Therefore, I strongly urge that our colleagues defeat amendment No. 3927, the Specter-Whitehouse substitution amendment.

Mr. President, I am sorry I was not here for all of my colleague's descriptions of his two amendments. But let me make one thing clear. What he is laying out is a scenario that does not exist. He is raising all kinds of concerns that are dealt with in the underlying bill. They are dealt with by the Constitution of the United States. They were dealt with by the Protect America Act.

I can assure the American public that we are not collecting all of the communications they send overseas and reading them and listening to them and using them in some way that violates the fourth amendment or the provisions of these two measures.

Before we actually have a vote on these measures, we will talk about them more in detail. I think he raised the reverse targeting amendment first. Let me be clear and explain that you cannot target a person inside the United States without a court order. All acquisitions must comply with the fourth amendment.

Last week we agreed to an amendment offered by Senator Kennedy which ensures that the authorities in this bill will not be used to acquire communications where the sender and all intended recipients are known to be in the United States. That has to be with a FISA Court order if you are targeting somebody in the United States. This is an explicit, bright-line prohibition against reverse targeting in the current bill. If one would look at page 6 of the statute, section 703(b)(2), I will read it for you. It says:

An acquisition authorized under subsection (a) 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 except in accordance with

title I or title III.

It does not get much clearer than that. So if the purpose in targeting someone outside the United States is actually to target a person inside the United States, you cannot use the authorities under this bill. It is clear. That is what the DNI stated his purpose was; that is what the bill provides. You have to get a FISA Court order if you are targeting somebody. You cannot do it by the back door.

Now, I heard yesterday some far-out explanations that a family whose child goes overseas to go to school, we would be listening in on those conversations. That is absolutely nonsense. If that is a United States person, we could not even target that United States person abroad, and we certainly do not target someone in the United States without a court order. We have provisions to assure that the United States person who goes overseas cannot be targeted without an application to the FISA Court. Quite simply put, that does not happen.

Now, if somebody is calling a suspected terrorist overseas, one on whom we have initiated collection because of intelligence sources certified by the Attorney General and the Director of National Intelligence, this person has significant terrorist information, significant intelligence information, foreign intelligence information, if one were to call that number, then it is possible, it is likely, and we would expect that they would find out what is in that call.

If it is an innocent call, if it has nothing to do with terrorist activity, it is immediately suppressed; ``minimized'' is the term. They do not even record the name of the United States person.

But when calls come from outside the United States into the United States from a person, a known terrorist abroad, or when they initiate the call, someone from the United States does, then what we must do is find out if they are talking about planned terrorist activity in the United States. That is the most important collection we can make. We have lots of important information targeting foreign terrorists, suspected terrorists, foreign intelligence targets overseas that is useful to our allies in protecting their countries. There are lots of instances where we have done that or when they

are--and that does not require minimization, and it should not. But the information that is used is only that information which applies to a direct threat, a terrorist threat, or other significant foreign intelligence value. If a United States person is involved in that, if there is an involvement of the terror plot in the United States or elsewhere, then that information would be accepted, and if it is necessary to collect further against that American citizen or United States person, then they have to go through the normal procedure. Probably the FBI would get their normal search warrant and go after that person and determine what role, if any, he or she has in carrying out terrorist activity. So in addition to the bright-line test, there is clear oversight authority. There is oversight exercised by the supervisors at NSA, by the inspector general, by the Department of Justice, whose lawyers oversee it, and by our Intelligence Committee to make sure that the prohibitions on reverse targeting are being observed.

If this proposal were to be accepted, the uncertainty, the operational uncertainty of determining what a purpose is in reverse targeting would make this an impossible situation for an analyst to observe and to make that determination. There is a clear prohibition against reverse targeting.

The other amendment which he brought up, 3912, is on bulk collection. The bipartisan Intelligence bill contains numerous provisions to ensure that acquisitions targeting foreign terrorists overseas--that is foreign terrorists overseas--comply with the fourth amendment and follow court-approved targeting. It gives clear protection, as I said earlier, against reverse targeting.

The amendment that has been proposed under 3912 has some very negative consequences for protecting our troops abroad. This amendment, for example, would prevent the intelligence community from targeting a particular group of buildings or geographic area where, for example, terrorist activity is known to be occurring, and preventing them from collecting signals intelligence prior to operations by our Armed Forces.

If there is an area which has significant terrorist activity, to say we cannot collect all of the communications coming out of that area to identify who the terrorists might be, whether there are innocent persons involved before our military goes in, does not make any sense, because if we send our military in, they are going in and probably going to be using significant lethal force. Had this bulk collection provision been in place, it would have prevented our troops from conducting surveillance in Fallujah, for example, prior to their military operations.

The details on this are classified. We can provide more information in a secure setting. But this amendment, according to the Director of National Intelligence and the Attorney General, ``could have serious consequences on our ability to collect necessary foreign intelligence information, including information vital to conducting military operations abroad and protecting the lives of our servicemembers, and it is unacceptable.'' I agree with them because I have had the opportunity to learn how the system operates. My colleague from Wisconsin has. I believe it is very clear from the information we have received and the knowledge we have about it that the evils which he purports to address are evils that do not exist. I strongly urge my colleagues to oppose both amendments.

I reserve my time.

Mr. President, there are quite a few things I disagree with that my colleague from Wisconsin has brought up. No. 1, he said the administration instituted an illegal wiretapping program. That is not true. That is wrong. I reviewed the documents on which they based it-- article II, and the authorization for use of military force. That was not an illegal effort. But that is a debate for another time. The administration did advise the leaders of Congress what they were going to do. The big eight were advised, and they did not deem any legislation advisable at the time.

Secondly, he gives me too much credit in saying it is only the word of one Senator that his amendments are unworkable and unnecessary. This was brought up and debated in the Intelligence Committee. We spend our time overseeing intelligence collection. It was not adopted there. It was withdrawn.

If my colleague has any evidence that there are any violations in reverse

targeting or bulk collection of the fourth amendment of the Constitution or other violation of privacy rights, then I suggest he bring them up in our Intelligence Committee in closed session where we can debate all the activities that are going on. I assume he has been out to NSA to see how it operates. He has been in and had the opportunity to question leaders of the intelligence community. He says there is a total lack of substance. I have to say there is a total lack of substance to the allegations he makes. There are legitimate concerns which we address in this bill by specifically prohibiting reverse targeting. It is specifically prohibited in this bill. I have to say the people who run the program are the ones who have told us the additional bells and whistles he wants to put on for no reason or even reasonable prospect of violations would make it impossible to carry out the business of collection on foreign terrorists with potential activities in the United States.

Again, there will be others who will discuss this. But it is not the word of one Senator. It is the word of a majority of the Intelligence Committee, and it is the word of the intelligence community itself, backed up by the Attorney General, that this is unwise, unnecessary, that these amendments would significantly hamper the ability of the intelligence community to conduct its operations.

I reserve the remainder of my time.

Mr. President, I thank my good friend from Connecticut for the kind words. We are delighted to have him back, although some would wish that he were otherwise occupied tonight. But we welcome him back and welcome him to the debate. I express my appreciation for the kind words he said about me in Iowa. It didn't do much good in Iowa, but I always appreciate them.

On this debate, however, I respectfully say that my good friend, with whom I have worked on many measures and intend to work with on many more, is dead wrong. He is correct that the FISA law was passed in 1978, but the problem is it has been superseded by technological changes. The technology of transmission of signals changed significantly. He probably was not here when I mentioned it earlier, but when the terrorists struck on 9/11, there was a question of how we could prevent further attacks that were planned and some of them were under way. The appropriate intelligence community officials recommended electronic surveillance and noted that since the laws had not changed, but technology had changed, it was quite likely that FISA, as it existed from 1978, even with minor tweaks, would not accommodate the collection that was needed. The intelligence community leaders and the administration leaders addressed this with the Gang of 8, the leaders of both parties, both Houses, and both sides of leadership on the Intelligence Committees, and they concluded that there was not time to change the law, so the President went ahead, using his article II powers as enhanced by the authorization for the use of military force. The President issued orders and, for the most part, the Attorney General signed off on it when he was available. The Director of National Intelligence issued them, and companies, understanding the urgency of providing collection against foreign terrorists--this was directed against foreign terrorists calling into the United States-- complied.

Now, the fact that one or two may not have complied speaks no praise for those companies, because if they failed to comply with what I have reviewed and believe to be valid orders of the Federal Government, and as a result, communications that might have tipped off an imminent attack on the United States of America were missed, then it would be a great shame for those companies.

Now, I cannot speak for the other body. I do say that the Judiciary Committee, which has broad jurisdiction over many important things--and I respect the leadership of that Committee--doesn't spend the time that we in the Intelligence Committee do on intelligence matters--going out to NSA, having people come before us, being briefed, going through laboriously technical operations that allow these searches and surveillance, and going through and listening and observing the means of assuring that these functions are carried out in compliance not only with constitutional directions but the regulations and the statutes of the United States is very important. We have seen the oversight. There is the supervisor and the inspector general who act as an independent check; the Department of Justice lawyers who come and review it from their standpoint; but also the Intelligence Committees in both Houses, which have not only the right but the responsibility to oversee this.

Based on that, our committee determined and reported out a measure saying it was absolutely essential for the continued security of this country to eliminate lawsuits that had been filed against a number of carriers alleging that they may have participated in this activity.

Now, why is that a problem? Well, today, we had open hearings involving the DNI, the Director of the FBI, the Director of the CIA, the Director of the Defense Intelligence Agency, and the Deputy Secretary of State for the INR Division. We asked all of them why it was essential that they provide retroactive liability protection.

The first and most important concern raised was that allowing these lawsuits to continue against the company--my colleague from Connecticut is right. We permit cases to go forward against the Government or Government officials. We are just protecting private companies. It is the pleadings, the discovery, and the testimony that would inevitably tell us, and the terrorists, much more about the operations of the program than the terrorists ought to know. In May of 2006, after the disclosures of this terrorist surveillance, GEN Mike Hayden came before our committee for confirmation. I asked him: What impact has the disclosure of our terrorist surveillance

program had on the collection of intelligence from foreign terrorists and suspected terrorists? He smiled and said, ruefully: We are applying the Darwinian theory to terrorists. We are only collecting the dumb ones.

I can assure you the people we want to listen in to are the very clever, very witty, very diabolical, murderous heads of al-Qaida and other terrorist organizations who want to do great bodily harm to the United States. They think, what we can do to tell them more about it, which would tell them how to evade even the means of collection that we have left available, that would leave our intelligence community deaf and blind to threats not only to this country, which is most important to all of us but to our allies and our troops overseas.

All the heads of the intelligence agencies I mentioned said one of the most important things we can do is provide this retroactive liability protection because, without it, then the private carriers-- the telecom companies--will no longer participate voluntarily to requests from Government entities. We have many areas where the telecommunications companies work with the Federal Government--whether it is tracking a missing child, tracking down a sex offender or, on another level, breaking up a drug cartel or, on another level, protecting against cyber attacks from other countries. If litigation is allowed to proceed against these companies, not only will it likely describe in detail the means that our intelligence community uses to collect information, it will put the companies in such dire straits in terms of business reputation here and abroad that it will be a very serious blow to the shareholders, to the pension funds that own the companies, and it will lead the counsel for those companies to say: never participate with the Federal Government again.

This could be a disaster for effective collection. I believe it was the consensus of those present at our hearing today--the Director of the FBI, the Director of CIA, the general in charge of the Defense Intelligence Agency, Under Secretary in charge of INR, and Admiral McConnell, the DNI--that retroactive liability protection for any carriers that may have participated, as well as carriers that are getting sued that didn't participate, that cannot exercise the state secrets to protect them, it will ensure that we don't get protection, don't get the cooperation from these telecommunications carriers when we need it.

We have worked hard on this measure. After reviewing all the information available to us, including opinions and authorizations that we reviewed in the executive office, the committee 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.

We worked hard to fashion a limited liability protection provision that serves the dual purpose of ending the litigation against the providers while allowing the cases against the Government to continue. Go ahead and attack the Government. There is no shortage of that in this body. I have heard it previously earlier today. That is part of our role on a partisan basis. We exchange criticism of the other party and particularly the administration when it is of the other party. We can make our best arguments. But we need to stop investigations, for example, by State public utility commissions of the providers' conduct under the TSP.

These investigations involve very sensitive, classified information that no public service commission or public utility commission is competent to handle, maintaining the secrecy, the confidentiality we need of our collection methods. We know this program has inflicted no harm on our citizenry and has protected us from harm.

I invite my colleagues, once again, to go to the fourth floor confidential classified hearing room or come to the Intelligence Committee's offices in Hart, if they want to see, from the Director of National Intelligence, a list of things that have been accomplished under the Protect America Act because collecting this electronic information is vitally important. It is right up there with interviewing detainees--high-value detainees--in providing us our most valuable information. To strike this provision of retroactive liability protection from the bill would significantly lessen our ability to collect intelligence and will make our country much less safe.

I ask that my colleagues vote against it. I will shortly yield time to my colleague and the chairman of the committee. At this point, I ask unanimous consent that the pending amendment be temporarily set aside.

Mr. President, I call up amendments numbers 3938 and 3941 and ask unanimous consent that they both be modified with the changes at the desk.

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

Mr. President, I have no intention of continuing this discussion.

These are amendments, I hope, will be accepted. Chairman Rockefeller and I will describe them later. I ask that our time be reserved, and I defer to Members on the other side who may wish to go into morning business.

Mr. President, I thank my colleagues for agreeing on a way forward on this bill. This is a very important bill, the Foreign Intelligence Surveillance Act, the FISA Act, of 2008. It gives the intelligence community the tools it needs right now and over the next 6 years to protect the country.

The Protect America Act we passed in Congress and the President signed last August allowed the intelligence community to close critical intelligence gaps, but that legislation expires in less than 2 weeks. We cannot let those gaps reopen. We passed a short-term extension, and that extension will expire when we are preparing to go out on the President's Day recess. We cannot leave our country blind and deaf to threats that terrorists might bring.

We were delayed in December by filibuster, which is the right of all Senators to have extended discussions. And there are those who say we need more time to look at this measure because it is very important and it is very technical and it is controversial. But the Intelligence Committee spent over 9 months looking at FISA modernization. We held hearings, we reviewed the Terrorist Surveillance Program, we looked at the implementation of the Protect America Act, and after that, we came up with a solid bipartisan bill. That is something in which Chairman Rockefeller and I take a great deal of pride because we accommodated many changes and improvements and we did improve on the existing FISA structure, as well as adding items the Protect America Act needed to have but did not have.

The intelligence community is waiting for us to act. We have a bill that is responsible and effective. It addresses the concerns about the Protect America Act, but most of all, it gives the intelligence operators the tools they need and ensures that our private partners will continue to assist the Government.

As I said, this bill came out of the Intelligence Committee on a 13- to-2 vote after months of studying the collection programs. Chairman Rockefeller, whom I thank again, and I worked together to get an agreement that protects America's constitutional rights and the privacy rights of American citizens.

There was a lot of work with the intelligence community representatives and lawyers from the Department of Justice. The Intelligence Committee members and their staffs did an outstanding job coming up with a solution.

Two provisions added during the initial markup without input from the intelligence community needed to be changed. They are great objectives, but they had to be made workable. It was our pleasure to work with Chairman Rockefeller, Senator Whitehouse, and Senator Wyden to come up with a solution to both these problems, and they are now in the substitute now pending.

The Director of National Intelligence, who is responsible for running our collection programs, said with these two problems fixed, he will support the bill. This is very important to the chairman and to me because we want to pass a bill that works and will become law. It would do no good to pass a bill that has people's good ideas in it or pass a bill that is good for politics but doesn't work for those who are charged with protecting us from the threats our country faces. So the support of this bill by the Director of National Intelligence in particular is critical. With these fixes, we will have a bill the President will sign.

The chairman and I have worked shoulder to shoulder on a bipartisan basis to pass this bill. We will have to take a very careful look at any amendments that are proposed because we don't want to jeopardize the ability of the intelligence community and their private partners to go forward. It is very technical. Each word matters. And we will do our best to point out whether amendments will work. There are several amendments pending that we think will improve the bill but will not bring a veto.

With that, Mr. President, I thank all the Members who have worked with us in close collaboration to get time agreements, to get a list of acceptable amendments, and I am looking forward to moving ahead with this bill just as soon as we can. I thank my colleague from West Virginia and the other colleagues for working together on the Intelligence Committee bill.

I yield the floor.

Mr. President, I yield myself 5 minutes. I ask that the balance of the time on this side be reserved for Senators Hatch and Sessions and others who want to speak.

Mr. President, all I know is we were all expected to be back at 5:30. I do not have their flight schedules. We are contacting their offices, but I do not know when they will be back.

Let me move on now to address some of the things that have been said. No. 1, there was a comment about the damage done by the Protect America Act. Nobody has shown any damage done by the Protect America Act. What it has done is given our intelligence community the ability to intercept foreign terrorist electronic communications. It has kept the world and our allies and our own people safer.

If anybody wants to look at that, there are, in our enclosed intelligence rooms, the full description of what has been gained.

The amendment before us, allowing the FISA Court to assess compliance, may sound like a good idea. But when we talk about foreign targeting, we are outside the FISA Court's experience and their expertise.

The FISA Court was created in 1978 to issue orders for domestic surveillance on particular targets. But Congress specifically left foreign surveillance activities to the executive branch and to the intelligence community. This is the first time we have heard that a court, set up to oversee domestic applications for electronic surveillance, should be involved in the foreign targeting efforts dealing with foreign information.

FISA minimization procedures are about protecting the identities of U.S. persons. This comes up all the time in domestic surveillance. But almost all the collection under these foreign targeting acquisitions will be on non-U.S. persons who require no protection under FISA minimization procedures.

I will explain later if I have time, after others have spoken, what the FISA Court itself has said about it. Therefore, it does not make sense to try to get the FISA Court involved in assessing compliance in the foreign targeting arena.

Now, it has been said that a judge, one of the district court judges who is brought in to rule on applications, probable cause applications for domestic surveillance, should go out and review what goes on at the facilities where collections are being made. Now in France, they have a wonderful procedure that goes far beyond anything

we have and would drive many of our civil libertarians nuts.

The investigating magistrate investigates, he prosecutes and he rules on cases. That is a wonderful way of overseeing the whole line of action. As an investigator and prosecutor, he makes a judgment.

We do not have that situation. We do not have that same system. We have courts that rule on controversies. We have given them the power to review the minimization procedures, the written procedures but not to go out and spend the day trying to figure out what is going on where the collections are being held.

What we do have is a very robust system of oversight, contrary to what my colleague from New York said. I will have to agree with him: I agree with all the things he said about the New York Giants. I rooted for them. I thought they were great. I will have to confer with my colleagues from New Hampshire and Maine to see whether they would accept on our side the terrible things he said about the New England Patriots. But I was a born-again Giants fan yesterday.

But when he said there is no oversight, he overlooks the supervisors, the inspector general who is overseeing minimization, the Department of Justice lawyers who are on top of them, and, more importantly, the Intelligence Committee itself. That is our job. Our job is to oversee it, and we intend to continue to oversee it to make sure that system works. Our staff can go out there. Our members can go out there.

I suggest, given the background the distinguished Senator from Rhode Island has in seeking warrants, and overseas warrants, probably nobody in this body will be better able to oversee compliance than the distinguished Senator from Rhode Island, who served as a prosecutor and as attorney general. I assure you not one of the FISA Court judges would have nearly as good a background or as fruitful a time as my colleague from Rhode Island would have.

I believe, therefore, leaving the existing oversight policies in place, with a robust oversight by the Intelligence Committee itself-- those of us who have been entrusted to assure the intelligence collection goes forward in an appropriate manner--should be allowed to do so.

Mr. President, I yield the floor and I reserve the remainder of my time under the proposal I made previously.

Mr. President, I yield myself 5 minutes. I appreciate the concern of my colleagues on the other side of the aisle. But there are quite a few misconceptions and misinterpretations about the bill and about the impact this proposed amendment would have.

Again, after the chairman speaks, there are a number of members of the committee who wish to come and speak more about it.

The purpose of this bill is, and always has been, to enable the intelligence community to act to target foreign terrorists and spies overseas. To answer many of the contentions made, you cannot get a certification to begin the process, unless there are reasonable procedures to assure that the targeted persons reasonably are believed to be located outside the State. Two, the procedures are consistent with the requirements of the Fourth Amendment and do not permit intentional targeting of any person known to be located in the United States. In 2(a)(3), it says that a significant purpose of the acquisition is to obtain foreign intelligence information.

Now, the statements that somebody who has gone abroad and is calling back home to their children would be surveilled is beyond the pale. No. 1, there is a clear prohibition in the bill against targeting any U.S. persons abroad without getting a FISA Court order saying there is reasonable cause to believe, one, they are acting as an agent or officer or employee of a foreign power; and, two, they have significant information. What this amendment does, however, is strike the ability to collect information on some foreign power that may be talking about proliferation of weapons of mass destruction. Furthermore, it would prevent collection on hostile states acting in a dangerous manner to the United States.

Now, the amendment, as it is drafted, will have a totally unexpected impact. It is difficult to explain, in an unclassified session, why this amendment is unworkable. But it would say that if there is a person reasonably believed to be located in the United States, such communication shall be segregated, or specifically designated, and no person shall have access to such communication except in accordance with title I, which presumes that you have access to that information, to determine whether it qualifies under the exceptions to the prohibition.

In effect, you would have a requirement that any kind of incidental communication from a person, from a foreign terrorist target, somebody having information of foreign intelligence value or a possible terrorist attack, who calls the United States or sends an e-mail, you would have to track down and find out where every e-mail recipient may be. You would have to identify people who might be collecting that information and investigate whether they are in the United States; and you would compile a significant amount of information on U.S. persons.

The whole reason it operates with minimization is to say there are only certain communications which the intelligence community is lawfully permitted to acquire, and which it has any desire to acquire, because to acquire all the communications from all foreigners is an absolutely impossible task.

I cannot describe in a public setting how they go about ascertaining which collections are important. But to say that if Osama bin Laden or his No. 3 man--whoever that is today, after the last No. 3 man in al- Qaida was wiped out--calls somebody in the United States, we cannot listen in to that communication, unless we have an independent means of verifying it has some impact or threats to our security or a terrorist threat.

That is the most important communication we need to intercept. The Protect America Act has kept our country safe because if somebody calls in with information on a terrorist threat, then the FBI and local law enforcement officials can go to work on that threat immediately and get additional criminal authorities as needed. But that is the most vital kind of information to get. We certainly should not be required to be put in a lockbox, as this amendment would provide.

Finally, talking about expansion of surveillance powers, when FISA was first adopted, most of the collection against foreign targets came by radio, whether coming into the United States or going foreign to foreign, and there was no limitation on it. There was no limitation on intercepting radio communications.

What we have done in FISA is to impose significant new restrictions on the collection of information that might be of foreign intelligence value. We should change the definition of ``electronic surveillance,'' but we were not able to do so in this law so it would apply to collection against other forms of communications.

Suffice it to say, this bill before us, the bipartisan bill, is carefully targeted, limited, covered with layers of protection and oversight to assure minimization, as I previously suggested. Whether you believe the inspector general of NSA, the inspector general of the DNI, the Department of Justice will perform adequate oversight or not, you can be sure the Intelligence Committee will do so.

I yield the floor and reserve the remainder of our time.

Mr. President, I thank the Chair.

I appreciate the opportunity to share a few views on the amendment. Again, on this measure, as on the others, I have a number of my colleagues who have indicated a desire to speak on it, so I am only going to take a very few minutes.

But let's be clear: When this issue came before the Intelligence Committee, we worked on a bipartisan basis to compromise. I think we had, as I have said before, a very good compromise. Everybody gave. I did not want any sunset. I felt providing our intelligence community the ability to establish a good, strong, adequately protected but yet effective means of intercepting foreign intelligence communications was vitally important so the intelligence community would know they had this ability.

Moreover, I have had the opportunity, in the last couple years, to meet with many of our allies abroad. Our allies depend upon our ability to intercept communications that lead to the disruption of terrorist attacks in other countries.

Again, I ask my colleagues who want to know what the Protect America Act has done to review the classified communication that the Director of National Intelligence sent us saying how many times and where in foreign countries we were able to provide vital information through our collection of electronic signals to the governments that wanted to be able to prevent terrorist attacks and were significantly enabled to do so by means of our collection efforts. Probably the reason for keeping it a permanent law was best expressed by the Attorney General, Mike Mukasey. When he was asked about why we shouldn't have a sunset, he said: The enemies, the Islamist terrorists who want to do us harm, do not put a sunset on their fatwas, their orders to go out and kill Americans and kill our allies and kill our troops abroad.

There is no immediate prospect of cessation of foreign terrorist activities or proliferation of weapons of mass destruction or even threats from countries that are absolutely hostile and dangerous to the United States. To put an artificial time limit on it makes no sense.

I have a different view of what the Intelligence Committee should be doing. One of the things we see, as we have discussed some of these amendments, is that those of us on the Intelligence Committee have special access to all this information, but we have a heavy responsibility. We try to carry it out well. Every time we explain on the floor what our intelligence activities are concerning, even in an unclassified setting, the more we talk about it, the more our enemies-- those who would seek to do us harm--learn about our intelligence collection capabilities. Bringing this back to the floor will enable them, once again, to learn more about what we are doing and when we are doing it.

Frankly, having a sunset that expires just before a new administration is sworn in after the 2012 elections seems to me not to make much sense. If there are changes needed in the Foreign Intelligence Surveillance Act amendments of 2008, it is our job on the Intelligence Committee to conduct continuing oversight. If there is a problem with that activity, if it is inadequate or if it is not properly regulated, then it is our job in our oversight hearings to bring that to the floor and bring that particular fix or that particular change that is needed to the floor immediately. We shouldn't wait 6 years or even 4 years. If we need to fix it, we need to find out what fixing is needed, and we need to take those steps at that time, not wait for 4 years or 6 years. All we do by setting an artificial time limit on it is to say to those who seek to do us harm: Well, if you go past the deadline, who knows? Maybe the Congress will not be able to adopt an extension. Maybe we will be able to communicate with our operatives in the United States and elsewhere without surveillance. It causes uncertainty in the intelligence community, and I believe it is not wise to cut back on the compromise we reached on a bipartisan basis in passing out the FISA amendments of 2008 by a 13-to-2 vote.

So I urge my colleagues to vote against this amendment.

I yield the floor, and I reserve the remainder of the time on this side.

Madam President, I rise in opposition to another amendment that has been argued very strongly on the other side but which would impose additional operational burdens and limit the ability of our collective agencies in the intelligence community to get the information they need and to be able to use it to keep our country safe.

We have gone through all of these, and we have worked to develop much greater protections for American citizens. One of the protections the American citizens seek from us is the protection from foreign attack and terrorist attack. If we hamstring our intelligence community--as they were hamstrung under the new techniques under the old FISA law-- you will find out we cannot collect the information we need. This burden--this superexclusionary rule--goes far beyond what is necessary to protect American citizens.

While supporters of the amendment may argue that a similar rule appears elsewhere in FISA, it is important to remember that rule is limited to individual domestic surveillance and searches, where the court has found there is no probable cause to target that person. That is very different and is a very important protection for Americans from searches and seizures and surveillance without a court order--not a properly developed court order.

This amendment tries to apply that same rule to foreign targeting, when there may be a deficiency identified in the targeting or minimization procedures. Applying an exclusionary rule in the context of a domestic surveillance involving a small number of targets is manageable and it must be done to protect Americans. It makes no sense if there is no finding of probable cause. That is the threshold under which that rule applies. But it makes no sense to exclude the use of information simply because there is a deficiency--any deficiency--in the certification or procedures used to target foreign terrorists overseas. That is whom we are talking about; that is the overwhelming amount of the collection--against foreign targets, foreign terrorists, and others with weapons of mass destruction plans or proliferation or foreign powers. It makes no sense to say a deficiency, which can be corrected, should

require all the information collected to be suppressed.

For example, this automatic suppression rule would make the Government temporarily sequester significant amounts of data, potentially, that might contain vital foreign intelligence information--obviously, there is a qualification--but not amount to information that indicates a threat of death or serious bodily injury during a period of time when the Government is attempting to correct a relatively minor or inadvertent deficiency.

That is unreasonable, and it is one more administrative burden to place on the intelligence community. Moreover, the Intelligence Committee's bill already provides an adequate remedy if the FISA Court ultimately determines that the collection is improper; it may order the Government to cease collection.

The court then has the inherent authority to fashion an appropriate remedy to address the collection and the contents that have been collected in a manner inconsistent with the law and the authorities of the collecting agency.

This amendment does not fix a problem with the statute. Instead, it potentially creates a problem that could have unintended operational consequences for our intelligence community. They don't need any more burdens. They have all the challenges they need in trying to intercept, translate, incorporate, and divine the intents of terrorists. There is more than enough work to do for our intelligence analysts just to stay within the existing boundaries we have applied in the protection for American citizens, without them having to fear we will lose vital foreign intelligence collection information because there was some minor deficiency that may later be identified by the court. That would make our country less safe and it is not warranted.

Therefore, I encourage my colleagues to join me in voting against this amendment.

I yield the floor to my colleague, the chairman.

Mr. President, I have three colleagues who want to join me in discussions of the FISA bill. I realize in morning business it is supposed to be 10 minutes. Since there are three different Members with whom I wish to have those discussions, I ask unanimous consent to be allotted 30 minutes to--this will be on the FISA bill, but since we are speaking in morning business, I ask unanimous consent to be recognized, with my colleagues, for 30 minutes.

Mr. President, our first Member is a distinguished member of our Intelligence Committee, the distinguished junior Senator from North Carolina. I yield to him.

Mr. President, that question has been raised. We have heard that on the floor a number of times. I think it is very important that we dispel that myth right now. The answer is no--a flat no. Our committee bill only allows the targeting of persons outside the United States to obtain foreign intelligence information. It is not dragnet surveillance. The targets of acquisition must be foreign targets and they must be suspected terrorists or spies. The Attorney General and the Director of National Intelligence, whom I will refer to as the DNI, must certify that a significant purpose of the acquisition is to obtain foreign intelligence information.

For example, if a foreign target is believed to be an agent or a member of al-Qaida, then all communications of that target could be intercepted.

Only Americans who communicate with suspected terrorists abroad will have those specific communications monitored. If those same communications turn out to be innocent, they will be minimized, which is intel community speak for suppressed, so that Americans' privacy interests are protected.

It is very misleading and nonfactual to suggest that the intelligence community is spying on parents who are calling their children overseas or students who are talking with their friends, or on our own soldiers in the battlefield. Our intelligence professionals are far too busy tracking real terrorists, members of al-Qaida, than to listen to family discussions or conversations between classmates. Not only do they not have time that is not permitted under this bill.

Mr. President, I thank my colleague from North Carolina, because that is precisely what our bill, the FISA Act Amendments bill, does. That information will be turned over to the FBI, which would seek a title III criminal warrant, or a FISA order, to intercept all of the communications of that person, not just communications with targets overseas.

This is where the Intelligence Committee bill goes much farther than any other law we have had in our history in protecting U.S. persons; that is, U.S. citizens and others here in the United States.

The bill includes express prohibitions against ``reverse targeting,'' and reverse targeting is a knowledge that you can target a person overseas when the real purpose is to target someone in the United States. This is illegal. The intelligence community does not do it. Frankly, it is terribly impractical. They cannot under the law that we have presented to this body target a person inside the United States without a court order.

The bill also requires that all acquisitions comply with the protections of the fourth amendment. In addition, the Intelligence Committee bill requires, for the first time in history, that the Foreign Intelligence Surveillance Court--and I will refer to that as the FISC--for the first time in history approve any surveillance of a U.S. person, or an American citizen abroad. This goes beyond the requirement even in existing American criminal law.

This provision came about as a result of discussions by members on both sides of the committee who wanted to provide protections for Americans overseas. To do that required a significant expansion and clarification, which is included in the managers' amendment that Senator Rockefeller and I have produced and have pending before the body.

Under this bill, the FISC must review and approve the targeting and minimization procedures used by the Government in conducting its foreign targeting operations. The court must find that the targeting procedures are reasonably designed to ensure that the authorized acquisition is limited to the targeted persons reasonably believed to be located outside the United States. The court must then find that minimization procedures comply with the FISA law.

The court will also review the joint certification issued by the Attorney General and the DNI to make sure that it contains all of the required elements. If the court finds there is a deficiency in those procedures or the certification--that even for a minor drafting or technical reason they do not comply with the law--the court can order the Government to correct the deficiency or cease the acquisition.

Well, it sounds like a reasonable proposal on the surface, but when you look at the law and the structure that is set up, it does not work. The FISC was created in 1978 simply to issue orders for domestic surveillance on particular targets, but the Congress specifically left foreign surveillance activities to the executive branch and to the intelligence community.

FISA minimization procedures--the procedure to suppress information on an innocent communication with a person in the United States--are all about protecting the identities of a U.S. person or American citizen. This comes up all of the time in domestic collections. But almost all of the collection under these foreign targeting acquisitions will be on non-U.S. persons who require no protection under FISA minimization procedures.

It doesn't make sense to direct the FISC to get involved in assessing compliance with the foreign targeting realm. They have said in their opinion regarding sealed matters that they are not set up to do that, and they do not have the expertise to do that.

As a practical matter, when the court assesses compliance with minimization procedures, it would be second-guessing trained analysts' decisions about which foreign terrorist to track and how to do it. They simply are not competent, they are not set up, they don't have the expertise to do that, and they have so stated in their published opinion. They can't make these types of operational decisions.

I am certainly glad the Senator brought that up. The court did issue a published opinion this past December where it noted that the FISA Court judges are:

Not expected or desired to become experts in . . . foreign

intelligence activities, and do not make substantive

judgments on the propriety or need for a particular

surveillance . . . Even if a typical FISA judge had more

expertise in national security matters than a typical

district court judge, that expertise would still not equal

that of the Executive Branch, which is constitutionally

entrusted with protecting national security.

Those are the words of the judges on the FISA Court, the FISC.

The court knows what to look for when it issues a warrant to tap someone's phone in North Carolina or Virginia. But when it comes to analyzing intelligence leads and deciding which foreign terrorists or spies should be surveilled, the court is simply not competent to make these judgments. That is exactly what the amendment would seek to have them do.

This bill already contains numerous oversight reporting and numerous judicial provisions. Those of us who have gone out to look at the operations know how extensive and how carefully supervised they are. There is no reason to ask the FISC to take on the additional authority in the context of foreign targeting, especially where it could result in operational problems or the loss of intelligence and, as the judges have said, is beyond their competence.

That is a very good question, because we cannot expect carriers, telephone companies, telecom companies to work with us if they don't have protection. That is why we are seeking retroactive clarification of the civil liability for those who have, in the exercise of their patriotic duty and pursuant to valid directives, participated in the President's terrorist surveillance program. Under this bill, the providers may challenge the directive by filing a petition to modify or set aside the directive of the court. If the court finds the directive does not meet specific requirements or is unlawful, it can grant a petition. If the court does not modify or set aside the directive, it will order the provider to comply with it. Both the Government and the provider may appeal any decision to the FISC Court of review and ultimately the Supreme Court.

I would tell my good friend from North Carolina that the bill we reported out of our committee provides a mechanism for the Government to compel a provider to comply with a directive. If the court finds that the directive was issued properly and is lawful, it must order the provider to comply with the directive and that provider is provided immunity for doing so. But a failure to comply by a company could result in a contempt of court. Both the Government and the provider may appeal any decision to the FISC Court of review and ultimately the Supreme Court.

I thank my colleague for his service on the committee and for his very helpful questions.

Mr. President, I see the distinguished Senator from Virginia is here, and I would turn to him if he has some questions.

I appreciate that.

Mr. President, I thank my distinguished colleague from Virginia. The answer to that question is yes. I wish to say what a pleasure it is to serve with the distinguished representative of Virginia, who served his country in the Department of Defense, who pushed through the landmark decision to have a volunteer military, which I might say my son was proud to participate in, and to say that his previous experience on the Intelligence Committee and his long and devoted service on the Senate Armed Services Committee has made him an invaluable member of the committee.

I say through the Chair, the distinguished Senator from Virginia deserves far more credit than he is ever given. I was trying to sneak in a little bit to say how much we appreciate his service. When he needs to correct me, I always stand corrected.

To return to the question, I do have an answer, and that is, the committee conducted a comprehensive and bipartisan review. We interviewed witnesses, we went out to NSA to see how the Terrorist Surveillance Program was implemented, examined documents, including the Department of Justice legal opinions and letters from the Government to providers.

The letters were provided to the carriers in regular intervals and stated the activities had been authorized by the President. All the letters also state the Attorney General had determined the activities to be lawful, except for one which stated the determination had been made by the counsel to the President.

After conducting this extensive review, the committee concluded the providers that allegedly assisted the TSP acted in good faith and, based on representations of the highest level of the Government, that the program was lawful. Therefore, the committee concluded the civil liability protection for these providers was appropriate, and I draw upon my experience at the law school at the University of Virginia, where my distinguished colleague also studied law, to say that reviewing those documents and letters led me to the conclusion that it was clear on its face that the carriers were receiving a valid, legal directive from the highest authorities in the Federal Government.

That is correct.

Mr. President, I say to my friend from Virginia, in April of 2007, the DNI submitted his request to modernize FISA to Congress, to our committee, and it included a request for full liability for all persons, including Government officials who had allegedly participated in the President's Terrorist Surveillance Program.

As my colleague has stated, the committee passed this bill by a 13- to-2 bipartisan vote. It included civil liability protection for those providers that allegedly assisted with the TSP. The protection was not extended to Government officials or to criminal prosecution. We did not seal off all potential liability of anyone who may have acted criminally--that would be up to the Department of Justice to determine--or Government officials who are named, I believe, in seven pending lawsuits.

That is correct. Now I understand why Admiral McConnell is doing such a good job because he obviously had very good early training. I did not know he had been through the Warner course in intelligence, but that ties up the loose ends, and now I understand more fully.

Mr. President, that is a very serious question because if those lawsuits should continue, either directly against carriers alleged to have participated or substitution or indemnification, No. 1, the identities of the providers could be revealed which would compromise our intelligence sources and methods. No. 2, the providers would be far less willing to cooperate with legitimate requests for assistance in the future, thus crippling our intelligence collection. Why is this? Quite frankly, because this would have a huge damage to their business reputations. They have already been accused falsely of all sorts of things that have raised questions that are reflected in damage to the value of the shareholders of the company and potentially bring great risk to the employees of those corporations and their facilities. These lawsuits would occur not only in the United States but even more likely they would occur overseas, and there could be real personal danger if the companies are confirmed as assisting the Government's fight against terrorism. Their facilities, their personnel could be at risk of terrorist targeting or other vigilante actions.

Mr. President, as I indicated, the dangers to the providers would be as great under substitution as if they were sued directly. While the providers might not be parties to the litigation, under the amendment offered by Senators Specter and Whitehouse, discovery would be allowed to proceed against the providers,

and this puts them at the same risk of disclosure as allowing the litigation to proceed directly against them. That is one of the most sensitive intelligence programs in our history. The intelligence community has done a thorough bipartisan review of the providers' conduct, and we in the committee feel we cannot risk our intelligence sources and methods by allowing litigation to continue and by allowing the potential of significant damage to those companies and their shareholders who may be widows and orphans and certainly members whose pensions may be invested in shares of those companies.

Mr. President, that is why we have an Intelligence Committee. The Intelligence Committee concluded on a bipartisan basis that they acted in good faith. There is no need for the FISC to duplicate the work. The FISC was set up to issue orders on individual targets for domestic collection. We expanded their responsibilities. The court is not set up and was not set up for protected en banc litigation. The amendment offered by Senator Feinstein would allow parties to litigate the good-faith providers.

I see my time has expired. I believe the Senator from Virginia has sought time, and I see one of my colleagues on the other side has sought time, so I will yield to them for their comments, and I ask unanimous consent that I be recognized at the end of the remarks of these two colleagues.

Madam President, I believe my distinguished colleague from Alabama has some comments and questions he wishes to raise, so I ask that he be recognized.

Madam President, to respond to my colleague, it would be a pleasure. Let's go through the record.

In April of 2007, the Director of National Intelligence, or the DNI, submitted a request to update FISA, the Foreign Intelligence Surveillance, law to Congress. The draft legislation that he sent to Congress was not a political or partisan piece of legislation, it was absolutely essential because technology has changed and the old FISA law was prohibiting our agencies from having the ability to go up on a foreign target without getting an order of the FISA Court, which totally gridlocked that court.

But what he sent up was the result of a year of negotiations and coordination among civil servants in the Department of Justice and our intelligence agencies that will actually have to implement the system the legislation will cover. So the people who are running it set up the recommendation.

Soon after that, there was a court order issued that resulted in these significant gaps. That ruling brought important parts of the system we use to monitor terrorists overseas to a halt. It created dangerous gaps in our ability to collect. The need to pass a permanent legislative fix for FISA suddenly became much more urgent, and the DNI came before the Intelligence Committee in May of 2007 to explain why it was needed and to say how urgent it was.

That is correct. As the DNI explained to Congress in a closed-door briefing for all Senators in July of 2007, the FISC ruling came at a time of heightened concern in our intelligence agencies that terrorist attacks against the homelands of our allies might be in the works.

The DNI explained in that briefing in no uncertain terms the urgent need to update FISA and close the intelligence gaps caused by the ruling so that our intelligence agencies would have the tools they need to detect terrorist plots against our homeland or our troops and allies overseas.

Mr. President, yes. I learned at the time why it was so essential, and I would say there is a letter from the DNI, a classified letter, which is available in our Intelligence Committee offices or in S-407 for Senators to read that says what the intelligence community was able to accomplish after the Protect America Act was passed on August 3, 4, and 5 of last year, which would not have been possible had we not changed the FISA law. So there are clear examples set forth in a classified letter that I invite all my colleagues to review. I would be happy to have them review it.

First, I am not a big fan of sunsets. If the Intelligence Committee does its job--and with Chairman Rockefeller leading and my role in it, I can assure you that we are looking at all of these laws, all of these practices, and authorizing legislation of the intelligence community to see if it is working, to see if it is working within proper bonds. But I believe that. And I believe the Attorney General was correct when he said we should not sunset these laws because there are no sunsets on our enemies' fatwas.

That came from our Attorney General. But we did agree to a 6-month sunset because Senate Democrats assured me that 6 months was long enough to take a systematic look at the law and come up with a strong, permanent solution. They believed we needed additional protections that had not existed in the original FISA law. It did not include one of the key elements that the DNI requested in his original April 2007 request. We had to pass a shortened version because of the timeline. But given that we had that sunset, our Intelligence Committee worked very hard, after the passage of the PAA, until we were able to pass on a bipartisan basis, by 13 to 2, a strong bill that adds significant new protections for Americans and which permits the DNI to conduct the program as he thinks it needs to be conducted to assure that our country is safe.

That is kind of an obvious question that my colleague has asked. The following month, the Judiciary Committee of the Senate put out a bill on a straight party-line vote, a partisan substitute which was drafted without getting the effective input of the intelligence community, the Department of Justice. And the DNI said it absolutely would not work, so he couldn't support it. So a month after that, on December 17, the distinguished majority leader brought the bill to the Senate floor, thought it very timely to get it done in December, since we have a February 1 expiration date. But several members of the majority party filibustered the bill or actually they phoned in their objections, their filibusters, from campaign stops. And it could not go forward. Then the Senate didn't get around to taking up FISA again until over a month later, on January 23.

We only returned to FISA after taking up the Indian health legislation. I don't diminish the importance of that measure, but it might have waited until after we finished FISA.

Unfortunately, my colleague from Alabama is right. I know we both don't want to engage in finger-pointing, but some of my colleagues have been making statements about our efforts on the bill, which leave me no choice but to correct the record. I invite any of my colleagues who have a different view to come discuss it with me. It is critical that we move forward.

We have a 15-day extension. At the end of 15 days, this body goes on a week's recess. There is no reason we cannot pass this bill, conference with the House, and pass it by February 15 so American citizens will have the additional protections this bill includes, and our carriers will have the liability they must have to continue to participate in the program.

I thank my colleague from Alabama.

Mr. President, I extend my most sincere thanks to my colleague from Alabama, who is a very valuable member of the Judiciary Committee. He does not let the fact that he was a lawyer and a prosecutor interfere with the exercise of good judgment. I congratulate him on his very perceptive comments. I thank him for participating with me.

I also would agree with him. He made the strong point that sensitive intelligence matters should be handled in the Intelligence Committee. Our intelligence community leaders have said it is very difficult to present matters to a committee when they have to deal in closed session on so many things. Even the things that may in themselves not be classified are often related to classified materials. So I hope maybe we can take a look at committee jurisdiction in the future.

I will take a few minutes to discuss why it is so important the Senate pass the bipartisan Rockefeller-Bond substitute amendment without adding unnecessary or harmful amendments that have not been vetted by the intelligence community.

There are some colleagues who may believe we can just keep adding amendments without causing any problem for our intelligence collectors. But the fact is, the legislation is intended, first and foremost, to keep the intelligence gaps that existed prior to the passage of the Protect America Act, or PAA, closed. If we do not check with the experts in the intelligence community about whether their proposals will enable the intelligence community to keep the gaps closed, and if we do not heed their advice, the legislation can have--and often has-- unintended consequences that impede vital intelligence collection.

An example of why this is so important: There was a substitute amendment included in the Rockefeller-Bond bill that provides additional protections for Americans traveling overseas. Originally, this amendment was offered by the Senator from Oregon--a valued member of our committee. His intent--which I share, and the intelligence community shares--is to provide overseas Americans with the same level of court review and approval as Americans in the United States receive. We believe that is very important.

The amendment passed in the committee despite my vote in opposition because of the drafting that the amendment had not been vetted by the intelligence community. It turned out it would have been unworkable, causing unintended consequences, including impeding important intelligence collection on legitimate targets, if it was passed as it was.

But the chairman and I worked with Senators Wyden and Whitehouse over the past few months so we could make this functional--a well- intentioned amendment, a very valuable addition to this bill. We fixed that provision, and it is in the managers' amendment that Chairman Rockefeller and I have. So we will have a workable bill, one that the DNI supports, and one we can be very proud of, because it does extend additional protections to American citizens and U.S. persons abroad.

But when we had to fix this issue, what we thought was a simple amendment took 24 pages of language to make sure we did not have unintended consequences--in an amendment that was originally only 3 pages long. I raise this not to criticize the authors of the amendment but to thank them for their cooperation.

But the basic principle is a principle of medicine, and we can apply it to the intelligence legislation: First, do no harm. I am concerned about the unwillingness of some colleagues who have proposed legislation to call the office of the DNI or NSA to make sure their amendments would do no harm. If amendments cause the intelligence gaps to reopen, the legislation will be worthless, probably will not pass, and will not be signed into law.

An example of how well a bipartisan FISA reform bill can function is the Protect America Act. I have said before that the PAA did exactly what it was intended to do: it closed the intelligence gaps that threatened the security of our Nation and our troops. It did so in a truncated fashion, but it worked for 6 months.

Now, there are some Members who criticize the PAA and call it flawed. But let there be no doubt, the PAA has been a great success. It did not open any new powers that had not existed before the technology changed and brought applications of new limitations on our collectors.

Next, I want to call attention to a letter received by the Senate Select Committee on Intelligence on January 25 from the DNI. Director McConnell wrote that the authorities provided by Congress, through the Protect America Act, passed in August of last year, have ``allowed the Intelligence Community to collect vital foreign intelligence information, and made the Nation safer by enabling the IC to close gaps in our foreign intelligence collection.''

Let me repeat that: It has enabled the intelligence community to close gaps in our foreign intelligence collection.

More specifically, Director McConnell said the PAA has enabled the intelligence community to obtain information related to disruption of planned terrorist attacks against Americans, efforts by an individual to become a suicide operative, instructions to a foreign terrorist associate about entering the United States, efforts by terrorists to obtain guns and ammunition, terrorist facilitator plans to travel to Europe, information on money transfers; plans for future terrorist attacks, and movements of key extremist groups to evade arrest--among others.

While I cannot say anything more publicly about these examples, I can say these are examples of how the PAA disrupted ongoing and planned attacks against our interests, our allies, and our citizens. The Director did send the committee a classified letter laying out the details of these disruptions. He also gave examples of how collection-- that had faltered because of a FISA Court decision in the spring--was renewed under the PAA. As a result, key intelligence against terrorists was collected.

I have reviewed the letter. I think any of our colleagues interested in this subject should go to the Senate Intelligence Committee offices or to S-407 to read the classified letter for themselves to see how the PAA has helped save American lives.

Director McConnell has told us some targets might not have been pursued without the PAA because of the administrative, analytic, and legal burden of seeking FISA orders. Keep in mind, these orders would have been FISA orders to collect information on foreigners, not Americans.

It is clear from my reading of Director McConnell's letter that most of the successes he identified would not have occurred had it not been for the PAA.

While the PAA has been key to gathering unique and vital intelligence information, Director McConnell does not support its extension. The reason he does not support the renewal--one that has been critical to enabling the intelligence community he leads to do its job--is because it does not include retroactive civil liability protection. In his letter, and on numerous occasions--and in every substantive discussion I have had with him--the Director has said that we cannot gather this kind of information in sensitive intelligence areas without the cooperation of private parties.

Despite the success of the intelligence community's ability to collect intelligence under the PAA, Director McConnell does not support its extension without this retroactive civil liability provision because he believes the voluntary cooperation of private parties is necessary to the success of the program. I have stated previously in answers to questions of my colleagues precisely why it would work. By implication, it seems he is concerned, wisely, I believe, that carriers will no longer cooperate with the Government if they fear being dragged into expensive lawsuits.

Again, for all these reasons, we must pass and get the bill out of here--I hope at least by early next week--and pass a conference report before February 15. The Rockefeller-Bond substitute is that bill.

A lot of questions have been asked about when we are going to move forward. We have exchanged papers back and forth. Chairman Rockefeller's staff and my staff have negotiated extensively. We need to get the concurrence of the leaders on both sides. I hope we are close to getting a workable framework. This is such a critical piece of legislation. I do not want to hold it up any longer.

I know my colleagues have been waiting for votes. Nobody has been more anxious than Chairman Rockefeller and I. We understand how important this issue is. We hope to give this body some real action on moving the bill forward sooner rather than later. We will need the leaders, who will make the decisions. We will need the cooperation of all colleagues on both sides. Let's hope we can come to a successful resolution.

Mr. President, I yield the floor and suggest the absence of a quorum.