Floor Statements

Mr. President, would the Senator entertain a question?

I would just ask my good friend if he doesn't agree the Intelligence Committee bills have to pass with 60 votes? I believe the Protect America Act passed with 60 votes. The leader said in December it made sense to have all votes at 60-vote margins, and would he not expect that the Senate Intelligence Committee bill, which I support, will have to get 60 votes? And if so, does it not make sense to have 60 votes to pass all amendments?

Mr. President, if I may respond to my colleague from Georgia, who is a very valuable member of the Intelligence Committee and who brings expertise from the other body and who has been a valuable contributor, when we passed the FISA bill in what is called the Protect America Act in August, everybody agreed that it should be 60 votes because this is a very important but very controversial bill that has to be adopted by 60 votes. Thus, we have asked that amendments to this bill be considered under a 60-vote rule.

It is very common in this Senate to demand 60 votes to be sure it is a nonpartisan bill. So far, we have not been able--although we have provided several alternatives to our friends on the other side--to get a clear way of going forward. So that is why we are stuck, waiting to find a reasonable manner of proceeding.

I would ask my colleague if, in fact, he feels we had adequate contact with, interaction, and advice from the intelligence community and whether it is important to have the advice and assistance of those who are experts in and know the operations of electronic surveillance, to have a role in our drafting of the legislation.

Mr. President, I would ask the Senator from Georgia further why it is so important to have the intelligence community operatives and lawyers involved in drafting the measure. We had several good ideas offered in the committee that turned out not to be workable. I would ask my colleague why he thinks it is important to have the direct involvement by the intelligence community experts as to how to craft not only the legislation but amendments to it.

Mr. President, would the Senator from Georgia say that this bill not only enables the intelligence community to move forward, but it provides additional protections for Americans, for their privacy and constitutional rights? I would ask him if he thinks those amendments have been incorporated in the legislation before us and what he thinks the final product of the Intelligence Committee is as a result.

Mr. President, I would ask, isn't this the first time any of the FISA bills--even the predecessor FISA bill or the Protect America Act--have included privacy protections for Americans overseas?

Mr. President, my colleague mentioned reverse targeting. I would ask him, after debate on both sides and suggestions from both sides, did we not also include an express prohibition of reverse targeting, as well as providing court review, as he has stated, of minimization, acquisition, and certification procedures? I would ask him if reverse targeting is prohibited and what reverse targeting really means.

Mr. President, I would ask my colleague--he just talked about the new protections for U.S. persons overseas: prohibition of reverse targeting, court review of acquisition, minimization, and certification procedures.

Now, some have said we just ought to extend the Protect America Act. As a sponsor of the Protect America Act, I thought it was pretty good. But if we were simply to extend the Protect America Act, would that not

eliminate or at least delay any of the additional protections against reverse targeting, providing court review, and preventing reverse targeting of U.S. persons?

Mr. President, I ask my colleague why it has taken so long to get us to this point when the Protect America Act expires on February 1?

Mr. President, I might ask, isn't there a danger that if there is an amendment not subject to the 60-vote point of order, it is possible, with various Senators absent, that we could adopt, perhaps, on a 47-to-46 vote, an amendment that would make it impossible for the intelligence collection required by the intelligence community to go forward, and if such were adopted, what would happen to the legislation?

Of course.

Mr. President, if I may respond, as my friend from Georgia pointed out, in order to pass very important legislation such as this, it has been the practice in this body to require 60 votes, and as my colleague from Georgia just said, the farm bill passed with 60 votes on the amendments. When we passed the Protect America Act, we had to get 60 votes.

This bill could be enacted into law and will undoubtedly have to have 60 votes to be signed by the President. I say to my distinguished colleague from Illinois, if there are changes made with less than a 60- vote margin, if they destroy the ability of the intelligence community to operate the collection system as we have prescribed, then that bill will never be signed into law. We would have to start all over again, and we would thus be leaving our intelligence community without the tools to protect us.

We are not saying we are changing the rules of procedure. We are following the practice that has been adopted in this Senate.

Mr. President, if that was a question--and I assume it was a question--let me say that requiring 60 votes is something which has occurred frequently in previous years, when this side had the majority and the other side was in the minority. We found that it was very difficult to pass legislation without 60 votes. Thus, we have seen that practice before.

But this is not an ordinary piece of legislation. Had we dealt with this in a timely fashion, this could have been handled on a different basis. But the Director of National Intelligence, whom I will refer to as the DNI, submitted to the Intelligence Committee, in April, a measure that he felt was necessary to modernize FISA. That bill was not brought up. The DNI testified in person before the committee in open hearing in May. Despite my request, no legislation was developed in the committee. The DNI came before the Senate in closed session, in a confidential room, in July of this year, to say how important it was. No bill came out of the Intelligence Committee. So the DNI proposed a short-term fix, which I brought to the floor on his behalf at the end of July, the first of August, and we were able to pass the bill, but we had to pass on a 60-vote basis.

When there are very important pieces of legislation, with strong feelings on both sides--as my colleague from Georgia has pointed out, he handled a very important and difficult farm bill--those measures had to have 60 votes.

Now, the fact is, we could have a bunch of simple majority votes, and there are many we can take on a simple majority. But if there are amendments which, if adopted, would prevent the bill from being passed and signed into law, as a practical matter, it makes sense to have a 60-vote margin.

We are waiting for a response to the offers we have made to the other side because, frankly, February 1 is coming. I hope we will agree on it. I understand the House is sending us a 15-day extension. I say to my friend from Illinois that I hope we can adopt the 15-day extension and a collaborative agreement between the two sides on how we are going to proceed to finish this bill.

I see the distinguished assistant majority leader has some information. I am happy to yield to him for that.

Mr. President, I thank the assistant majority leader for advising us that we won't have to continue the frenetic pace of voting this evening. I look forward to working with him. He is a pleasure to work with. Maybe tomorrow we will be able to go forward.

I was going to offer some thoughts on the intent of FISA, but I will defer to my colleague from Georgia if he has further points he wishes to raise.

Mr. President, I thank my colleague from Georgia. I thought maybe, if anybody is still listening, we would talk a little bit about the intent of the Foreign Intelligence Surveillance Act. I hope maybe we can clarify some of the misunderstandings.

First, I believe that when the distinguished Senator from California, a valued member of the committee, Mrs. Feinstein, spoke on the origins of FISA, she correctly noted that it was created, at least in part, in response to the disclosed abuses of domestic national security surveillance. However, as the legislative history makes clear, FISA was never intended to regulate the acquisition of the contents of international or foreign communications where the contents are acquired by intentionally targeting a particular known U.S. person who is in the United States.

The legislative history states:

This bill does not afford protections to U.S. persons who

are abroad, nor does it regulate the acquisition of the

contents of international communications of U.S. persons who

are in the United States, where the contents are acquired

unintentionally. The Committee does not believe this bill is

the appropriate vehicle for addressing this area. The

standards and procedures for overseas surveillance may have

to be different than those provided in this bill for

electronic surveillance within the United States, or targeted

against U.S. persons who are in the United States.

In essence, then, FISA, as originally drafted, was a domestic foreign intelligence surveillance act. Congress was concerned about targeting persons inside the United States with interceptions conducted inside the United States.

The FISA Act amendments legislation we are considering today is a very different animal, and it could be better characterized as an international foreign intelligence surveillance act. The bill is concerned mainly with targeting persons outside the United States when interception might occur inside the United States. What do I mean by that? The legislation will regulate how the President may conduct electronic surveillance of foreign terrorists operating in foreign countries when their communications just happen to pass through the United States on wire communications networks.

This strange interference with the intelligence community's and, indeed, the President's authority to conduct foreign intelligence activities appears to arise from an overabundant concern about the ``rights'' of persons in the United States whose communications are incidentally collected when they talk to terrorists overseas.

It is odd that we are creating a new law in this area that departs from the original construct of FISA because in the international surveillance realm, there have been no significant abuses of the intelligence community's ability to collect overseas foreign intelligence.

Unfortunately, two factors have compelled us to make these changes to FISA. First, we need to ensure that the critical intelligence gaps identified by the DNI last year do not reappear.

The Protect America Act effectively closed those gaps last summer, but there was bipartisan agreement that we could improve on its provisions, especially in the area of carrier liability protection, and that is what our committee did.

Second, this legislation is also required because we must address the practical reality that electronic communications service providers are now insisting on a formal process to compel cooperation in the foreign arena in order to obtain prospective liability protection similar to that enjoyed for domestic intelligence and criminal wiretaps. That is why the carrier liability protection and prospective liability protection provisions of this bill are so important.

Another area where we are departing from the original intent of FISA is the targeting of U.S. persons abroad. FISA, as passed in 1978, left the targeting of American citizens abroad to the President's Executive order applicable to the intelligence community and the procedures approved by the Attorney General. In this legislation for the first time in history, we build into the FISA new laws that govern the targeting of U.S. persons overseas who are agents, officers or employees of foreign powers when a significant purpose of the acquisition is to obtain foreign intelligence information.

These new procedures are sometimes referred to as 2.5 procedures because they are based in part upon section 2.5 of Executive Order 12333, which has long governed the electronic surveillance of U.S. persons overseas by requiring the approval of the Attorney General based upon a finding of probable cause that the target is a foreign power or agent of a foreign power.

These 2.5 changes were part of the overall bipartisan compromise and now require prior court review by the Foreign Intelligence Surveillance Court of all surveillance conducted by the U.S. Government targeting U.S. persons overseas. Americans will still be on their own with respect to being surveilled by foreign governments overseas, but at least they can remain confident that if they are not working for a foreign power as a spy or terrorist, their own Government will not be listening to their conversations.

The last area that merits discussion on the issue of FISA's original intent is the Foreign Intelligence Surveillance Court. We refer to it as the FISC. According to section 103 of FISA, the FISC was established as a special court with nationwide jurisdiction to ``hear applications for and grant orders approving electronic surveillance anywhere within the United States.'' That is it.

As evidenced by the application and order requirements in FISA, each application is for a ``specific target'' for the significant purpose of obtaining foreign intelligence information.

The court was originally structured so its seven judges would provide geographical diversity. The post-9/11 expansion of the FISC from 7 to 11 judges enhanced that diversity. Judges are nominated by the chief judge of their circuit to promote ideological balance on the FISC.

It was clearly recognized that only one or two judges would be in Washington, DC, on a rotating basis at any given time. This was intended to discourage judge shopping and make it unlikely that an application for the extension of an order would be heard by the same judge who granted the original order.

The FISC was never envisioned as a court that would or should handle protracted litigation. It possesses neither the staff nor the facilities to preside over such litigation. Moreover, it is very likely that such prolonged litigation would interfere with the main business of the FISC, which is to ensure the timely review and approval of individual operational FISA applications for court orders.

We need to remember that the FISC was set up to review domestic electronic surveillance and later physical searches, an area that has numerous parallels to the similar reviews conducted by district court judges when they are asked to authorize criminal wiretaps. As I mentioned previously, even the FISC has acknowledged its lack of expertise in the foreign-targeting context, which is, they say, better left to the executive branch.

The Court's recent opinion in the case of In re: Motion for Release of Court Records stated:

. . . 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 the national security.

We should be very hesitant to disregard the Court's own assessment of its competency in the overseas intelligence realm, especially given the original intent of FISA. I urge all my colleagues to be mindful of the Court's own words as we consider some of the

proposed amendments, particularly those that would allow the court to assess compliance with minimization procedures used to target foreign terrorists. For example, amendment Nos. 3920 and 3908, and would require the court to determine the good faith of those providers who allegedly assisted the Government with the Terrorist Surveillance Program. As examples, amendment Nos. 3919 and 3858.

In conclusion, I offer these observations mainly to ensure the record reflect the legislation departs from FISA's original intent in a deliberate and carefully tailored manner. While there are some practical considerations, including a desire for a strong bipartisan bill, that have driven the need for this legislation, we should be extremely careful about adding new or changing existing provisions in the bill that could negatively impact the operational effectiveness of our intelligence community or provide unwarranted protection to overseas terrorists and spies.

Mr. President, I will not propound a unanimous consent request now, but I advise my colleagues that if we cannot reach agreement, I will ask unanimous consent that all amendments to the FISA bill be brought up and decided at a 60-vote threshold so we can move forward on this important legislation. I am not making that request now. I alert my colleagues on the other side of the aisle, I hope that will not be necessary, but we have not had a response to our proposal on how we move forward. We have been at this a week now, and we only have, at best, two full working weeks before we go on recess. We must get this bill done, sent to the House, conferenced, and passed before we leave for the President's Day recess. Failure to do so could leave our intelligence community without the tools they need and, thus, America without the protection it needs.

I yield the floor.

Reserving the right to object, I thank my colleague for his courtesy and for his attention and his interest in this subject.

As I had previously stated, we have to get this bill done to replace the Protect America Act. I believe the House has passed or is considering passing a 15-day extension, which I think is long enough, and on behalf of our side, I must object to this unanimous consent request.

Reserving the right to object, and I will not object, I wish to join with the Senator from North Dakota, who is doing a fine thing. We appreciate the support on both sides of the aisle. We obviously need a good and strong Secretary of Agriculture, and we are pleased to see this body move forward. I do not object. I thank the sponsors.

Mr. President, I believe our time on this side has expired. I thank my colleague from Utah, who is a valued member of the Intelligence Committee and the Judiciary Committee, truly a real authority in this area. When he speaks, he speaks from not only a great deal of knowledge but study. We are grateful for his assistance. He is a tremendous asset to this body in many ways but none more so than on the Intelligence Committee.

Mr. President, it is my understanding that this side has 40 minutes of debate; is that correct?

Mr. President, I ask unanimous consent that that be divided; that I be allocated 15 minutes and that I be notified when my 15 minutes is up; that at the appropriate time, the Senator from Texas be recognized for 15 minutes; and then, after intervening discussion from the other side, the Senator from Georgia, Mr. Chambliss, be recognized for 5 minutes. I would reserve the remainder of the time for closing argument.

I thank the Chair.

Mr. President, we began consideration of this bill on December 17, the FISA Amendments Act of 2007. As my friend the chairman said, it was passed by the Senate Intelligence Committee with overwhelming bipartisan support. It has garnered the support of the Director of National Intelligence, and I believe it is the way forward.

I was a bit amused to hear my friend say that the FISA bill was being taken hostage; they were scoring political points. I haven't heard from the White House anything other than they want to have this bill passed.

We have sought to protect the rights of Republican Members on the minority side. We have suggested that this bill is so controversial, as all intelligence bills are, that amendments be subjected to a 60-vote majority. The simple fact is, we could pass perhaps a number of amendments that could destroy the structure of the bill we have presented and put us in the position where it would not get the 60 votes needed to pass.

My suggestion is that we move forward accepting some amendments. There are amendments on both sides, I agree with the chairman, that can be accepted. Maybe we could even accept them without a vote or accept votes on others at a simple majority, a 51-vote majority, and then on certain controversial ones, we may have to have 60 votes. But we are ready to move forward. We are not the ones who have held up this bill. Very briefly, in April, the Director of National Intelligence, Admiral McConnell--and I will refer to him as the DNI--sent a bill to the Senate Intelligence Committee and said FISA is out of date. It has to be updated. He came before us and testified in May. I asked him to do something.

Nothing happened. He came before the full Senate, actually, in closed session, all Senators invited; that was in June. He explained how urgent it was and how we were being left deaf and blind to communications of terrorists. Nothing happened.

It was at the end of that session, going into the August recess, that he proposed a temporary shortened version of FISA which became the Protect America Act. I was pleased to support that in the Senate. It passed the House and was signed.

We came back in September, knowing we had to work together on a bipartisan basis, and the Senate Intelligence Committee and staff worked very hard on a bipartisan basis to produce a bill, a very good bill. It was the ultimate compromise. There were some on both sides who were sullen but not rebellious. But we got the job done. We provided the tools the intelligence community needed and significantly expanded the protection of American civil liberties and privacy rights.

The bill sat on the floor in October. It finally came to the floor December 17. A number on the majority side spoke out against the civil liability protection afforded providers who allegedly assisted the Government with the President's terrorist surveillance program, or TSP. They criticized various provisions in the Intelligence Committee bill. They spoke in favor of what regrettably was a partisan Judiciary Committee substitute.

Debate is good for democracy but only if it is based on facts. Unfortunately, during the December filibuster, we heard a number of allegations, accusations, and even misrepresentation about the committee's bill and the TSP. Some of those comments will be repeated today.

Our intelligence community professionals must have the tools they need to protect us. This is not the time to pass legislation that will make people feel good or will score political points. We must pass a bill the DNI will support and, thus, the President will sign. That should be our goal. Distorting the truth will not help us get there.

The record must be set straight, and these are some of the myths we have heard. What are the facts? We were told that a ``new and aggressive'' interpretation of article II authority was used to justify the TSP. There is nothing new or aggressive about relying on the President's article II authority in the context of foreign intelligence surveillance.

Courts, including the FISA Court of Review in the 2002 In re: Sealed Case decision and the Fourth Circuit in the Truong case, have long recognized distinctions between domestic and foreign surveillance and the President's constitutional authority to conduct foreign intelligence surveillance. Nor is it ``an invitation to lawlessness'' to argue that the President has inherent constitutional authority to wiretap without a court order. The Constitution is the highest law of the land and trumps any statute.

In 1978, when Congress recognized the tension between FISA and the President's inherent authority under article II, they noted that warrantless surveillance for foreign intelligence gathering has been an integral part of our Nation's foreign intelligence. During World War II, our warrantless surveillance of the German and Japanese militaries and the breaking of their codes preserved our democracy. More recently, the Clinton administration conducted a warrantless search of the residence of convicted spy Aldrich Ames.

The Intelligence Committee conducted a comprehensive, bipartisan review of the TSP. There is no evidence to substantiate the claims that the administration began its warrantless surveillance before September 11 or that the TSP covered domestic calls between neighbors, friends, and loved ones. As the President has stated, the TSP collected international calls involving members of al-Qaida.

For many months, critics have argued that TSP could have been conducted under FISA. That argument needs to be laid to rest. A decision by a FISA court last spring proved that the TSP could not have been done under FISA as it existed. The court decision resulted in significant intelligence gaps which led to the passage of the Protect America Act.

I was not there, but I understand this matter was discussed by the President with the top leaders of this body and the other body, as well as the Intelligence Committee, and was told at the time it would not be possible to redraft and change the old FISA law in time to collect the critical information they hoped to gather before attacks occurred immediately following September 11.

The liability protection for those carriers who allegedly assisted the Government with the TSP lies at the heart of this legislation. The President did what he had to do under article II, and our country was safer for it, and our country was safer because some of the carriers alleged to have participated acted in reliance and good faith on orders of the Attorney General, transmitting the President's order--and the intelligence community.

In his original FISA modernization request in April of 2007, the DNI asked for full liability protection for all those allegedly involved. Some Members have attacked DNI McConnell's integrity, calling him ``an accidental truth teller'' and accusing him of backing out of an agreement made under the PAA. These comments are not only unjustified, unwarranted, and unfair, they are counterproductive. Throughout this debate, the DNI and other intelligence professionals have given us unbiased advice and technical assistance. They have assisted Democrats and Republicans. We need to focus on the task at hand, not engage in personal attacks against a man who has served his country honorably in the military and the intelligence community, and continues to do so as head of the community.

Some of the Members have downplayed the need for liability protection. They argue that carriers already have statutory immunity and that continued litigation will not harm providers or our intelligence efforts. These statements reflect a startling lack of knowledge about our intelligence collection, which is dangerous to the continued operation of our gathering.

First, the companies cannot prove they are entitled to statutory immunity because the Government must assert state secrets to protect their intelligence collection methods. Second, while it is true that the existence of the TSP has been revealed, there are still, fortunately, a few details about the program that have not. Each day the lawsuits continue--with the prospect of civil discovery--there come new risks that sensitive details about our intelligence sources and methods will be revealed. As General Hayden stated a year and a half ago: The disclosure of the TSP has had a significant impact on intelligence gathering of terrorists. We are applying the Darwinian theory. We are only capturing the dumb ones. We should not give terrorists additional insight through continued TSP litigation.

Further, our intelligence and law enforcement agencies rely on the willingness of providers to cooperate--in emergencies, as with the kidnapping of a child, or when court orders are not required. Yet some carriers have already told us if they do not get liability protection, they will not be able to risk their business, their reputation, by continuing to help without court orders. That would be devastating to our intelligence collection.

Our committee weighed all these arguments for and against liability protection. We concluded by a 12-to-3 bipartisan vote that civil liability protection for providers--and only providers, not Government officials--was not only fair, it was the only way to safeguard our intelligence sources and methods, and to ensure the continued cooperation of the providers.

Substitution is not a solution since it would allow civil discovery to proceed against providers, still leaving them open to disclosure and exceedingly serious competitive and reputational harm, perhaps even physical retaliation by radicals who oppose our intelligence gathering. The intelligence community advised us through testimony and gave us documents that these companies acted in good faith, and we in the committee agreed with them. The providers who may have participated relied upon representations from the highest levels of Government.

There is no need to create a statutory mechanism for a court, whether it be the FISA Court or any other, to second-guess this determination. Allowing

a court to do so would throw uncertainty into an area where the committee's intent is clear: The ongoing civil litigation against providers must end. On this last point, the term ``amnesty'' was tossed around in December. But that incorrectly assumes that alleged carriers did something illegal. These carriers do not need amnesty. They did nothing wrong. They deserve liability protection.

As I mentioned earlier, the DNI said he will support the Intelligence Committee's bill with two revisions. Yet some Members insist there are fatal flaws. We heard, No. 1, that there are no consequences if the FISC rejects the targeting/minimization procedures; No. 2, the bill does not contain a ``reverse targeting'' prohibition; and, No. 3, it allows warrantless interception of purely domestic communications. A plain reading of our bill shows that each one of these arguments is false.

The bill that came out of our committee goes farther than ever before in providing a meaningful role for the courts and Congress in overseeing acquisitions of foreign intelligence. The FISA Court will review the targeting and minimization procedures to ensure they comply with the law. If the court finds any deficiency, it can order the Government to correct the deficiency or cease the acquisition.

There is nothing--I repeat, nothing--in this bill that will allow warrantless wiretapping of Americans in violation of title III criminal wiretaps or FISA. There are explicit prohibitions against ``reverse targeting'' and the targeting of the person inside the United States without a court order. Americans abroad are given new FISA Court protections. The acquisitions must also comply with the fourth amendment. These are major new protections for Americans. Yet in spite of these measures--protections we have never seen before in the world of foreign targeting--we have been told the intelligence community will still target innocent Americans, listening to calls between parents and children overseas, between students and their friends studying abroad. That is absolute nonsense. The Intelligence Committee's bill only allows targeting of persons outside the United States to obtain foreign intelligence information. This is not a dragnet of surveillance. We are not listening to, quote, completely innocent people overseas, unquote, as some have claimed. The targets must be foreign targets--suspected terrorists or terrorist group members--and the Attorney General and 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 member of al-Qaida, then all communications will be intercepted. Only Americans who communicate with that target will have those specific conversations monitored. If those same conversations turn out to be purely innocent, they will be ``minimized,'' or suppressed. Even if the communication contains foreign intelligence information, it is likely, in many instances, the identity of any U.S. person will be masked--or protected--in any intelligence reporting. Americans' privacy rights are protected up to the point where they are actually engaging in a terrorist operation.

Mr. President, I see my time is running out. I will reserve the remainder of my time. I will give the rest of my remarks at a later time.

Thank you.

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

Mr. President, how much time is remaining on our side?

Mr. President, while we are waiting for Members of the other side to come forward, I will make a few remarks, and we will see if we have some others join us.

I was talking about some of the proposed amendments and questions that have arisen about this bill. There are some who would demand that a court order be obtained any time a call involved a U.S. citizen. But anybody who understands FISA or intelligence collection knows that is operationally impossible.

For 30 years, the intelligence community has used minimization procedures when inadvertently intercepted calls come to or from nontargeted U.S. persons. So far, we are totally unaware of any abuses of this system. The minimization procedures have worked well. They worked well when information was being collected by radio, without a FISA Court order, and they continue to work well because the well- trained people who run the NSA operations are overseen by multiple layers of supervisors and inspectors general and attorneys from the Department of Justice.

There is no way to know, when a terror suspect places a call from a location in the Middle East, whether that

person is going to call someone in his country or a neighboring country or the United States. So if you say you cannot intercept that call if it goes to a U.S. person, what, in effect, you are saying is you cannot intercept that call because you don't know where the call is going. So it means there will have to be an order for every foreign terrorist surveillance conducted by the NSA, and that is totally unworkable. We have seen that before. That shut the system down. It is unsound policy to require a FISA Court order if a terrorist target abroad calls a U.S. person. That may be the most important call to intercept in order to protect us from a terrorist attack at any time, and time matters. Do we really mean that the call cannot be intercepted until a court filing is prepared and reviewed by Government lawyers and that the FISA Court must review the application and supporting amendments? I hope not. Our enemies are not stupid. They would figure out very quickly that they can slow us down and bring our intelligence community to a halt simply by placing periodic calls to the United States.

Some believe that the FISA framework in place is enough to keep us safe and that we don't need the Intelligence Committee bill. I find that comment disturbing. It is the FISA framework that created significant intelligence gaps threatening the security of our Nation. It is only because we passed the Protect America Act that those gaps were closed.

I have already spoken about the problems with the Judiciary Committee bill. I wish to address some concerns and some ideas raised about the Foreign Intelligence Surveillance Court, the FISA Court.

I think our bill out of the Intelligence Committee strikes the appropriate balance between providing tools needed to collect intelligence and a meaningful oversight role for Congress and the FISA Court.

There are a lot of misperceptions about the FISA Court. As mentioned previously, for example, there are those who suggest the court should have decided whether providers acted in good faith before immunity is granted. We were told this makes sense because the court ``sits 24/7 and this is all they do. They would act en banc.'' That is not accurate. The FISA Court does not sit 24 hours a day, 7 days a week. It is composed of U.S. judges from U.S. district courts throughout the country who have their own full caseloads and come to Washington, DC, on a rotating basis simply, as the enabling legislation says, to issue FISA Court orders. As a result, it would be difficult to get them to sit together.

Given the court's facilities, it is not set up to preside over litigation. We were told that this is why the FISA Court was set up, but the legislative history and the measures----

Mr. President, I will then close and urge that our colleagues adopt cloture so that we may move forward on this very important bill.

I yield the floor.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Mr. President, we are on the FISA bill, I believe. Has the bill been reported? Is it before us?

Mr. President, I wish to address the FISA bill. I also commend our majority and minority leaders on their statements about the lives that have been lost by our brave troops in Iraq and Afghanistan.

I believe there are a couple of comments that are appropriate.

Number 1, it was said that General Petraeus said the war is not going to be won militarily. That is the key point which General Petraeus has brought to the battle. There is a kinetic and nonkinetic impact of the counterinsurgency strategy that General Petraeus has laid out and that is showing such great progress in Iraq.

Today, the news is not dominated by Iraq. Those people who have been criticizing it don't talk about it because General Petraeus's strategy is working. It is not just the surge; it is the strategy, the counterinsurgency strategy, or COIN, as it is sometimes called. That involves clearing, holding, and building.

There is a real difference between the approach we took right after the fall of Saddam Hussein, which has been haphazardly called the ``whack a mole'' theory--we would go out, send our troops out, trying to keep a small footprint. We would also send our troops out where there was an al-Qaida stronghold and try to suppress them, and then we would leave. The problem is that al-Qaida would come back, and they would take vengeance on anybody thought to have cooperated. That strategy, apparently pushed by those who felt it would be--we wanted to maintain a small footprint and not appear to be taking an occupier's role--was not working.

General Petraeus expanded upon the usual doctrines of counterinsurgency, and he brought a new approach beginning over a year ago. He said: We will send in troops to clear areas, working with the Iraqi security forces. When they clear an area, they will stay there to maintain security--that is clear--and then hold. And holding involves the U.S. forces working with the Iraqi security forces to train them, to provide them intelligence, logistics, medical support, to ensure that they can sustain the peace and the security in the area. Once they do that, then the U.S. Government has come in either with aid in dollars or with the work of the troops in the field to help build the infrastructure to provide the services, whether it is health care, whether it is reparations for damages, and show the Iraqi people that we want to turn over that country to the Iraqi security forces to maintain the stability and security which is necessary for the long- term process of establishing a democracy.

I was there with a group of my colleagues from the Senate Intelligence Committee in early May, and we were seeing the beginnings of the effectiveness of that strategy. We went into Al Anbar Province. Six months before, it had been regarded as the headquarters of al- Qaida. They were in control. It was their area. It was a Sunni area. The only way the American troops could get into the capital of Ramadi was to fight their way in, and then they would usually have to withdraw. But on this occasion, four of us went in, in a Cougar, with the commanding general of the region and two marines. We drove into the center of Ramadi, got out, and walked around Firecracker Corner--so- called because of the continuing firefights going on there previously-- and we went to visit the embedded American marines with the Iraqi Army, who had bunked there, and the Iraqi police who were serving that area. They live together, they work together, they train together. You know something. It was working.

We even went out to see the Blue Mosque, one of the holy places for the Sunni in Al Anbar Province, which had been badly hurt by gunfire, by artillery and rockets and bombs. The marines had gone in and helped repair and clean up the Blue Mosque, so it was open for worship again.

The Iraqis began to understand that we would work with their security forces to help them take control of the area, and that is what they were doing. It continued to get better. I know personally from reports I had from one marine there, the scout snipers found that by midsummer, their services were not necessarily needed in Al Anbar because if somebody planted an IED--an improvised explosive device--or a terrorist came to town or somebody set up a vehicle factory to build explosive vehicles, the Iraqi Sunni watch told the Iraqi security forces, and they went and took care of it. The Iraqi Sunni police took care of it. This continued to spread throughout Al Anbar.

Now, one of the helps--quite honestly, everybody will admit that one of the things that made it so easy for us to work with the Sunnis was that al-Qaida had shown their true colors. They are terrorists first, second, foremost, and last. They went in and they terrorized the people, even the people who at first were cooperating with them because they thought they were Sunni brethren. Well, they were not. They went in and had forced marriages, rape, pillage, murder, torture. They disrupted the activities, the business activities of the Iraqi Sunni leaders in the area, and they quickly learned that al-Qaida was not their friend and they needed us there temporarily to help them take control of their country. That is what we are doing. It is not done all over. There are still areas where we have not been able to provide Iraqi security forces sufficient training, sufficient personnel to take control of the area.

Now, the majority leader said: We want to bring our troops home as soon as possible. As one who supported the war, I agree with him wholeheartedly. I had a personal stake in it. I wanted to see our troops come home. But as the President said, we need to return on success. We need to bring those troops home when they have succeeded in their missions. because as several men on the ground who have seen their comrades killed said: We have made too many contributions and too many sacrifices to see a political defeat declared by Congress, forcing us to withdraw, so that those contributions and sacrifices will be for nothing.

When you ask the American people do they want to see the troops come home, sure, they do; we all do. But we want them to come home and not leave Iraq in chaos and to return on success. That is where the American people are. And they are returning on success. The 2/6 Marines cleared Al Anbar and came home several weeks early. General Petraeus says more will be coming home. But we have a vital stake in making sure Iraq does not fall back into chaos and confusion.

We have laid the groundwork. There is much more political work to do at the national level, but political reconciliation is occurring from the ground up. The Shia in Baghdad are beginning to recognize they must provide financial assistance and support to the Sunnis. Recently, the Iraqi Parliament passed a reform of the debaathification law, which put out of the Government anybody who had been associated with Saddam Hussein. It was probably a bad idea that our original U.S. coalition commanders had to fire all the Iraqi soldiers and send them home with no pay, no jobs but their weapons; to throw out of office all the former Government bureaucrats who worked for Saddam Hussein. They are going to have to move carefully but quickly to get those people back who know how to make government run.

General Petraeus has said that as we continue to build these forces-- the forces of peace who can run the Government--we will bring our troops home. We have been in Germany and Korea for decades. We have been in Kosovo for years. We need to have a minimal presence there, probably for a long time. But the primary responsibility of maintaining peace and security in Iraq is being turned over and must be turned over to the Iraqi security forces. We can back them up and make sure al- Qaida doesn't make another run at them, doesn't bring in external fighters. These are the ones causing the most trouble, people coming in from Syria, or Saudi Arabia through Syria, and other areas--the terrorists. We have the ability to assist the Iraqi security forces to do that.

Why is it so important we leave Iraq secure and stable? Well, Saddam Hussein was a real threat to us. Even

though he did not actually have any weapons of mass destruction that we could find, we know he used them. We know he had the ability to restart at any time and that he had attempted to begin a nuclear weapons program. Most of all, he had a country where terrorists were running wild. We heard a lot about Abu Mus'ab al-Zarqawi, of Ansar al-Islam, the infamous butcher who delighted in decapitating people for television. His group became al-Qaida in Iraq. Fortunately, we killed him. He and other terrorists were running loose in Iraq. They were waiting to get their hands on weapons of mass destruction.

With the decline and decapitation of the Saddam Hussein regime, we made it much less likely the Government was going to provide weapons of mass destruction. But that was what the Iraqi survey group said was the greatest danger, that made Iraq far more dangerous than we knew, because with Saddam Hussein in control, terrorist groups running wild in a chaotic country could have provided the weapons of mass destruction the terrorists seek, and continue to seek, to use against our allies, our troops abroad and us here at home.

If the place falls into chaos, there is likely to be broad-ranging genocide among the parties in Iraq, settling old grievances. That could bring other countries into the region, starting a regionwide civil war. But the most important thing is Osama bin Laden and Ayman al-Zawahiri, his No. 2 man, said the purpose of their struggle is to establish the headquarters of their caliphate at the land of the two rivers. That is Iraq, Baghdad and Ramadi. They want to get their hands on the oil resources. If they have unfettered access for establishing camps to recruit, train, develop weapons, issue command and control, then we in this Nation are much less safe. Return on success, yes. The 2/6 Marines have come back and others will come back on success. That is the strategy we have now and it is the right one.

Mr. President, I needed to say that.

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

Mr. President, I ask unanimous consent that the Senate recess subject to the call of the Chair.

Madam President, I suggest the absence of a quorum.

I object.

Madam President, first, I express my admiration for the Senator from Rhode Island. The hard work he has put in on the Senate Intelligence Committee and the experience he brings to that committee is very important. We have worked with him on many issues that we were able to accomplish in the committee. I agree with his assertion that we need to balance freedom and security. That is one of the heavy responsibilities we have in the Senate Intelligence Committee.

He talks about an amendment he has presented on a bipartisan basis, and he and his Republican cosponsor feel very strongly about it. I would be happy at the appropriate time to have debate and a vote on this very important measure. But I also happen to agree with the Senate majority leader, who said back in December that the issues before us on this FISA bill are so important that we must ensure they have a 60-vote margin for passage, the same vote that would have to occur if we were to overcome a filibuster. That will ensure that there will be no filibuster of the bill.

We filed cloture to make sure we could go forward with the bill. We are waiting to see how that works out. But the measures, as I have stated earlier--and the proponent of this amendment had the distinct misfortune to be in the chair when I addressed this earlier today--but for my colleagues, I would say that we have before us a very carefully crafted bipartisan compromise to improve the FISA, Foreign Intelligence Surveillance Act, significantly and to ensure that it can work to keep our country safe.

Passing these measures on a 60-vote margin is nothing new. When I brought the Protect America Act to the floor on August 3, I brought it on an agreement that we had to have 60 votes to pass it, because it is a very important bill. And I assume that this bill, which I hope will pass, will have to pass with 60 votes.

I think it is a reasonable proposition to say that a 60-vote threshold must be achieved to ensure there is bipartisan agreement on something that is this important to our security and our freedom.

Now, my colleague raised the question about why the immediate interception of foreign intelligence did not go forward right after 9/ 11, when the President determined there must be interception of telephone and other electronic transmissions coming from foreign terrorists abroad into the United States.

I am told the administration met with the Gang of 8, leaders of the House and Senate and the House and Senate Intelligence Committees. They were faced with the problems that arose when the court order occurred in the spring of last year, saying the existing FISA law did not permit interception of communications coming through the way--coming the way by which they now come, through cable and wire.

Previously, collections occurred routinely against foreign sources by radio wave. And there were minimization procedures. But the FISA Court was not involved. Because of the change in technology, as the order of the court indicated last spring, FISA applied to collection of most of the foreign terrorist communications, whether they were coming into the United States or into other areas.

We were advised by the commanding general, Special Operations Command General McCrystal, that the limitations of FISA in April and May and June and July prevented our intelligence authorities from collecting vital signals information on communications among terrorists in the battlefield, putting our troops at risk.

He begged and pleaded to get it done. Well, despite the begging and pleading to get it done, you have seen how long it takes us to get FISA changed. As I understand the conversations held in the aftermath of 9/ 11, when we knew there were other attacks being planned and we needed to get control of them, there was general agreement among the parties, legislative and executive, that we could not afford to try to take the time to try to change FISA, to make it work with the new electronic signals means of communication in time to stop further terrorist attacks.

How long has it taken to get FISA passed? Well, the Director of National Intelligence sent up a bill in April pointing out that the old FISA law did not permit collection of foreign signals intelligence from known terrorist targets abroad. He sent it up in April. He testified before our committee in May. He came to the Senate and had a hearing in our classified room telling leaders of both parties how important and how sensitive it was.

Another month passed. Nothing happened. He came back with a short- term extension that had to have a 6-month sunset on it. We passed that. We passed that with a 60-vote margin. That has become standard for any controversial and important legislation coming before this body, which is applied not only in FISA but many other circumstances.

So we got a 6-month extension. Now, we are still debating whether to have a slightly longer extension of the FISA bill. We reported the bill on a bipartisan 13-to-2 majority in October. It sat for 2 months. The majority leader tried to bring it up, but he was filibustered from bringing it up.

We are now at the end of January, when the Protect America Act expires on February 1. We need to move forward to get this bill passed. We need to move forward as promptly as we can. But we need to move forward on the same ground rules by which other major legislation and which the Protect America Act came to the floor; that is, a 60-vote margin to ensure there is bipartisan agreement on something as important as the freedom and security framed by the FISA debate.

Let me add a word or two about the FISA Court. I had thought the distinguished Senator from Rhode Island was going to offer an amendment on assessing compliance and toss that to the FISA Court. Well, the FISA Court, or FISC as we call it, was created in 1978

to issue orders for domestic surveillance on particular targets.

Congress specifically left foreign surveillance activities to the executive branch and to the intelligence community. The FISA Court, they are article III judges who are called in from time to time to make the judgments of probable cause for issuing warrants. They have expertise in issuing warrants for surveillance on a domestic basis.

The bill before us gives them that responsibility, as did the other FISA, the old FISA, for issuing those orders for people or facilities in the United States. The old one said ``facilities in the United States.''

Well, that court is not set up to deal with foreign intelligence surveillance. As I quoted yesterday, the court's own words said--and this is the December 11, In re: Motion for Court Records. The court stated that: The FISA Court judges are not expected to or desire 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 has 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.

So I expect we will get to the point where we will be debating the distinguished Senator's assessing compliance amendment. But he has brought today the substitution amendment.

I have already explained why we could not get through signals collection immediately after 9/11 if we had gone to the old FISA. How many months would it have taken? Well, the leaders who apparently spoke with the intelligence community and the White House said they did not want to highlight the fact that we were going to be listening in and they did not think it would work quickly.

The intelligence committee has carefully assessed the orders which were given to the telecommunications carriers which may or may not have participated in the Terrorist Surveillance Program. And they were based, yes, they were based largely on article II.

The FISC has already indicated nothing Congress can do can extinguish the President's authority under article II, but Congress also passed the authorization for use of military force, which was a counterbalance in the weighing of the constitutional arguments of article II with the provisions of the FISA law.

I have reviewed the Attorney General's findings, the Department of Justice findings. I have read the authorizations and the directives. It is clear to me, and clear to others, most of the others who have reviewed it, they were clearly acting under the color of law.

I happen to think they were right. You can make an argument that maybe they were not right. But the carriers that may have participated were not in a position to challenge those. They got a lawful order from the head of the intelligence community, based on authorization from the President, in a manner cleared by the Department of Justice. Under those circumstances, I believe it would not only have been unpatriotic, but it would have been willful for the carriers to refuse to participate. Yet they are being sued.

I think the suits are designed to cripple our intelligence community. There are not going to be significant judgments awarded no matter what they say because anybody who was intercepted would have to come in to court and say they were intercepted and prove harm. I really question whether they can do that. But under the substitution argument, the disaster to our intelligence operations is clear, as is the damage to the reputation and the business of any carriers which may have participated.

Back in 2006, right after the disclosure of this and the terrorist finance tracking measure, when the newspapers carried it, television carried it, terrorist leaders--very bright people--abroad learned of it, communicated about it on their own communications, and those communications, I was told in the field, went down significantly.

So I asked General Hayden, at his confirmation hearing to be head of CIA, how badly these disclosures hurt us. And he said at the time that we are applying the Darwinian theory to terrorists; we are only capturing dummies. The more we disclose about the workings of our intelligence intercept capabilities, the more those whom we would target know how to avoid them. And they are taking steps; they know too much about it. Any further disclosures would further complicate and damage the collection capabilities of our intelligence community.

Moreover, the damage to the reputation of the carriers would be significant. The damage would occur likely in exposing the carriers-- their employees and their facilities--to terrorist activities or vigilante activities. It would destroy their business reputation, cause untold harm in the United States, and probably effectively curtail their ability to operate overseas. If they are put out of operation or if they are limited in their operations, then the intelligence community loses a substantial means of acquiring the intelligence we need.

So when this bill comes up--I expect it will come up, but I believe it must come up under a 60-vote rule or we are going to go through the normal process of getting to 60 votes, and we will never get anywhere. I think both sides of the aisle should recognize that. I will be happy to make these arguments.

I know my colleague from Rhode Island is a very skilled lawyer, a very effective debater. He will present his arguments, I will present my arguments, and there will be others who will join with us. So while I would love to get on with the debate and votes, we are not going to go there until we resolve the question of whether there is a 60-vote margin.

So I thank the Chair, and I thank my colleague from Rhode Island.

I yield the floor.

Madam President, I am happy to respond as soon as we go back to the normal means of proceeding on FISA matters, establishing a 60-vote threshold, which is the standard I had to meet to bring the Protect America Act to the floor. I would certainly expect that his amendment would be brought up, fully discussed, and debated. This is one of the major issues we have to decide. But we have to decide it on a 60-vote point of order.

Madam President, I ask unanimous consent that the Senate proceed to a period of morning business with Senators permitted to speak for up to 10 minutes each.

Mr. President, again, we rise with a renewed consideration of the Foreign Intelligence Surveillance Amendments Act, or the FISA Amendments Act, of 2008.

I thank the chairman for his very powerful and thoughtful statement on behalf of the original bill presented by the Senate Intelligence Committee, with the managers' amendments that we will incorporate.

Simply put, this legislation gives the Intelligence Community the tools it needs right now, and over the next 6 years, to protect our country. The Protect America Act, passed by Congress in August of this past year, allowed the intelligence community to close critical intelligence gaps. I disagree that the Protect America Act was flawed. It was a temporary measure. It didn't deal with all of the subjects we needed to deal with, including protections for carriers alleged to participate. But it did not cut back on any of the basic protections in FISA, and it served to provide us the means in this 6-month period to collect vitally needed intelligence on foreign subjects who might be planning attacks either on our troops abroad or in the United States. But this vital legislation expires in 1 week, and we must not let those gaps reopen.

We initially began debate on the FISA Amendments Act in December of last year. As was their right, several Members of this body decided a filibuster was a better course for our national security. So we listened for hours to unfounded allegations about the terrorist surveillance program and to mischaracterizations about the Intelligence Committee's FISA bill. Ultimately, this bill was pulled from the floor and further debate was postponed until now.

Early this week, we returned to the Senate. Now, given that the Protect America Act expires in a few short days, one would have thought that FISA would be the first up on the agenda. I don't want to minimize the importance of Indian health legislation, or any other important legislation that the Senate should consider, but let's be clear: If the intelligence community cannot protect this country from terrorist attacks, then it doesn't matter much what else we debate or pass. We have to protect the country first and protect our troops and other personnel abroad in order to have a country, and we must improve upon other legislation. But here we are, only a few days shy of the PAA's expiration, and the drumbeat is there already by some stating we need more time to consider the Intelligence Committee bill; we should just do a short extension of the PAA. That is a bad idea. Some have called it flawed.

I believe it is important, but I believe the Intelligence Committee bill goes much further and does what we absolutely must do to make sure not only that we have the ability to collect on foreign terrorists who are planning attacks here or abroad but also to protect the constitutional rights, the privacy rights of Americans.

The Intelligence Committee spent over 9 months looking at FISA modernization. We have held hearings. We have gone out to NSA and watched its

implementation. We have reviewed the terrorist surveillance program. We have looked at the implementation of the PAA. We have gone to review all the documents upon which the TSP--the terrorist surveillance program--was based, and we have come with a solid bipartisan bill. We are ready to act, and the intelligence community is waiting for us to act, and so are our allies abroad who have relied very heavily and continue to rely upon our collection ability to help keep their countries safe. Every day, we hear about attacks that have been disrupted by allies across the world. Without being specific in any areas, I think one can generally assume that our collections have helped our allies protect themselves against attacks in their countries.

There is no reason to extend the PAA, much as I liked it. We have a bill that is responsible, and it is more effective. It addresses concerns about the PAA. It gives our intelligence operators the tools they need, and it ensures that our private parties will continue to cooperate with the Government. I am pleased the majority leader and minority leader have come to agreement on this fact.

As the majority leader stated appropriately 2 days ago when he supported moving to this legislation immediately--and I thank the majority leader for that--we need to act now, and I hope we will be able to pass a solid FISA bill in short order. Some hope today. I join with that hope. I am not an incurable optimist, but we can always hope.

We have before us the Senate Intelligence Committee bill, S. 2248, which was passed out of the committee by a 13-to-2 vote. We need bipartisan legislation. This is bipartisan. Nothing is ever going to be unanimous in an area that is this technical and this important, but we passed it 13 to 2. This bipartisan bill will give the intelligence community the authority and flexibility it needs to track foreign terrorists quickly and efficiently.

In November, the Judiciary Committee reported a substitute on a straight party-line vote. The substitute added numerous provisions that were not fully vetted with the intelligence community. Regrettably, it ignores significant concerns expressed by working-level officials in the Department of Justice and the intelligence community--the very operators who know how this complex, technical, and overwhelmingly supervised and reviewed system works. The Judiciary Committee also ignored the concerns of its own minority members. As a result, this totally partisan substitute changed the Intelligence Committee bill in ways that will gut--gut--our intelligence surveillance capabilities. This substitute amendment is what we will be considering first this morning.

Last night, at the very last minute, the chairman of the Judiciary Committee filed a new substitute that modified the original Judiciary Committee substitute. Regrettably, the Judiciary Committee did not share this with my staff, and we only received the strikeout version, one that shows the changes between the substitute that has been at the desk for 2 months now and this last-minute switch. We received it from the ranking member's staff late last night.

After a quick review, my staff and I can tell my colleagues that the core problems remain, and although the DNI and the Department of Justice also have had little time to digest it, they have told us that their primary concerns remain. They cannot support this new substitute. It does not get the job done.

Conversely, the Intelligence Committee's bipartisan bill was drafted after months and months of studying the collection program. Members of our committee went out to the National Security Agency--we refer to it as NSA--to see how the program worked and to inspect the layers of protection built into their collection methodologies to make sure the agency stayed within the bounds of law.

Over several months, Chairman Rockefeller and I put together an agreement with our committee on both sides which adds more protections to the constitutional rights and the privacy rights of American citizens. I can be very proud and I think the Members of this body can be very proud that we have extended and improved protections for American citizens.

We worked with the intelligence community representatives and the Department of Justice lawyers to make sure our legislation would work and would not impede vital collection--more protection but keep the system working. I think that is where we ought to be, and that is where we are in the underlying Intelligence Committee bill.

Most importantly, we fashioned a legislative solution that both Democrats and Republicans could accept. I thank our Intelligence Committee members and staffs for their efforts, long and hard work, to come up with this bipartisan bill. Our bill has been publicly available for scrutiny for over 3 months now, and it remains the most solid bipartisan way to move forward.

Two provisions of the bill, however, were added to the initial markup without the input of the intelligence community. As a result, both provisions in the bill could cause unintended operational consequences, and they needed to be fixed. Chairman Rockefeller, Senator Whitehouse, Senator Wyden, and I worked together with the community to come up with solutions to these problems, and I hope we can have broad support for a managers' amendment to remedy that situation. One of these provisions provided important new protections, but it had to be reworked to protect Americans abroad in a manner which was consistent with our structure of laws and those of other countries.

The DNI has told us that with the managers' amendment fixing these two problems, the community will support our bill. That is important for Chairman Rockefeller and me because we want to pass a bill that works and will become law. It would do no good to pass a bill that some may feel good about or may pass for good politics but does not work for those who protect us in all of our intelligence agencies. So the DNI's support of this bill, in particular, is critical. Consequently, with these fixes applied, we will also have a bill the President will sign into law.

My intention as a floor manager--and I believe Chairman Rockefeller stands shoulder to shoulder with me in this--is to pass a bill that the DNI supports and that the President will sign. I believe we have that right now with the fixes to be applied.

If we attempt to change key painstakingly constructive provisions or to add bad provisions, however, we could hinder the intelligence community's ability to do its job and jeopardize the DNI's support for this bill and the chances of it becoming law. With the expiration of the PAA in a few days, I believe this is not the path we should take in the Senate. Anyone who has read FISA knows that it is very technical and each word matters. So it is imperative we do not add provisions without the input of the intelligence community, and we need to listen to their concerns. They are experts. They operate an incredibly technical and complicated system that is overlaid with legislation carefully drafted to recognize their capabilities, their limitations, and, most importantly, protections for U.S. persons and American citizens. We saw firsthand how difficult it is to deal with amendments that are not cleared with the intelligence community to make sure they work.

Let me just say that the Department of Justice and the Office of the Director of National Intelligence have been very helpful throughout the process, but we should not mistake their willingness to provide technical support to avoid operational problems with support for certain provisions. So while the DNI may have provided some technical support, there are several amendments that I believe, if added to our bill, could cause problems for the intelligence community, lose the support of the DNI and thus our ability to get this bill signed by the President.

First, I expect there to be some efforts to undo or modify the civil liberty provision in the Intelligence Committee's bill. Chairman Rockefeller has already delivered a very strong and persuasive argument for this liability protection. It has been said once very well by the chairman, but this being the Senate, it needs to be said again, and I will be happy to do so.

This provision is essential to foreign targeting authorities. Without retroactive and prospective civil liability protection, it becomes much less likely that our private sector partners will be

able or willing to assist us in the future. That means the intelligence community would have to spend great time compelling telecommunications providers in each instance who are reluctant for fears of civil lawsuits to assist, to work with us to track terrorists.

The committee studied this issue, and we reached a broad bipartisan consensus that civil liability protection is for providers and not immunity for Government officials. That was the appropriate action. I repeat, the civil liability provision in this bill is for private parties who may have assisted the Government. There is no immunity or protection for the Government itself.

Additionally, the concept of ``substitution,'' where the Government is substituted for the private party as a defendant in court, is not an acceptable alternative. That would allow litigation to continue, including discovery against the providers, thereby risking the disclosure of our sensitive intelligence sources and methods.

At his confirmation hearing, I asked General Hayden, the nominee for the head of the CIA, who had previously been the head of NSA, how badly the disclosures of our intelligence collection methods had hurt us in the battle to get the intelligence we need. General Hayden told us ruefully that we are now applying the Darwinian theory to terrorists: We are only capturing the dumb ones.

With substitution, we would not only be risking disclosure of sources and methods, we would also, however, embitter private parties against us whose cooperation becomes public, thus endangering their personnel, their facilities, and their business reputation here and abroad, with grave consequences to those who had participated, as Chairman Rockefeller said, in compliance with a Government directive from the highest officials in the land, and we would put taxpayers' dollars at risk for trial lawyers' coffers. We would also incur great expense in defending those lawsuits. The orders were issued--and I will discuss more about this later--under the President's article II constitutional power and responsibility to conduct foreign affairs.

Let me say a few words about an idea that came up shortly before the debate in the summer. Some are suggesting that before civil liability protection is granted, the FISA Court, the Foreign Intelligence Surveillance Court--and I will refer to it as the FISC--the FISC or other court must determine that those providers who allegedly assisted the Government with the terrorist surveillance program acted in good faith and pursuant to an objectively reasonable belief that the directives were lawful.

As reflected in the Intelligence Committee report accompanying S. 2248, the committee has already made this determination. We have studied this issue extensively, and we concluded that civil liability protection was the best and only solution. Why would Congress want to turn over its collective judgment to a single judge and pass a law stating that judge's ruling would be the final word on this issue? We don't even know what that ruling would be. This does not make much sense to me. We already went through this problem with the judicial variance on the FISC before, remember? The President's program was put under FISA, and then changes within the court, different judges, led to a problem with the intelligence gaps that spurred the need for short- term legislation last August. Congress should not roll the dice on this issue, close our eyes, cross our fingers and say: Whatever judge happens to be on call the day this issue comes up, well, that will be the final word on this question. Remember, the FISC's function is to approve applications for electronic surveillance. It is not set up for nor has established competence in this area. It makes no sense.

The providers need civil liability protection, and they deserve it now, not the prospect of further proving their good faith before yet another court. The longer this litigation drags on, the more likely it is that our intelligence sources and methods will be disclosed and the communications providers' businesses will suffer and they, their facilities, and their personnel will be at risk. It also becomes more likely and understandable that these companies, on which both the law enforcement and the Intelligence Committee rely for critical and timely information, could refuse to assist us in times of our need because of valid business reasons about the potential for further lawsuits. And I am not just talking about terrorist threats, I am talking about a provider refusing to give information voluntarily to help find a kidnapped child or help to find those who sexually entrap children on the Internet or proliferation or what have you. Should we be willing to take this risk? I don't think so.

Now, let me move to some of the issues the Judiciary Committee modified in our bill to the detriment of the overall product. Let me be clear, the new substitute that was filed last night is the same old wolf in different clothing. It does not alleviate any of these concerns. The Intelligence Committee bill included, as part of our compromise, a reiteration of the exclusive means provision in the current law, which states that FISA is the ``exclusive means'' in statute for conducting electronic surveillance. No statute that Congress ever passes can trump the President's article II powers. Numerous courts, and even the FISC itself, have reviewed this and stated the powers given to the President under the Constitution cannot be extinguished by a law passed by Congress. Even though we have passed a law on exclusive means, we have also passed a law called the Authorization for the Use of Military Force, which has to be read in conjunction with FISA.

Clearly, even those who believe a statute can somehow impinge on the article II constitutional powers of the President must recognize the powers of the President, if they were lessened by FISA, were reinvigorated by AUMF. Congress is making a statement in ``exclusive means'' that we want to see surveillance conducted under FISA. We have seen many attempts to broaden this language, but this is an area that calls for extreme caution. Exclusivity is more than a policy statement, it has a real operational component.

As we now know from our own experience in drafting this provision, the slightest word change can impede vital intelligence collection. I believe the Intelligence Committee's version addresses Members' views about exclusivity and further strengthens that statement, while at the same time preserving the ability to gather intelligence. Conversely, the majority's Judiciary Committee substitute now requires an act of Congress after the next attack, potentially before our intelligence professionals can do what they need to protect us. There is no exception if the attack comes from al-Qaida or another terrorist organization.

Now, it doesn't take a rocket scientist to figure out that as we stand here today, we have no idea where or when the next attack may come. Are we, each of us, willing to take the risk that Congress may not be able to act; that for whatever reason Members cannot make it back to Washington, DC, we cannot get a bill passed and signed by the President, which would leave our intelligence community without the authorities it needs to counter the threat or protect this country? I, for one, don't want to be explaining that back home to my constituents in Missouri. It is another nice sounding idea politically to some that makes no sense operationally and shuts down some potential intelligence collection.

Moreover, the Judiciary Committee's bill, and the latest substitute, would allow the FISC to assess compliance with the minimization procedures used for the acquisition of foreign intelligence information from individuals outside the United States. Minimization procedures are designed to protect U.S. identities if communications of U.S. persons are accidentally swept up in a surveillance operation or if a U.S. person is party to a conversation with a target--a lawful target--but that U.S. person is not of intelligence interest him or herself. We minimize, suppress, don't even record the name of that U.S. person. If there is no intelligence value, then that person is not at risk. To be at risk, that person would have to be receiving or instituting a call to a lawful target. That means that if somebody is calling a family member abroad, a business activity abroad, then there is no reason to fear that even those conversations would be picked up. But if others are picked up that are of no intelligence value, they would be minimized or suppressed.

Giving the court the ability, supposedly, or the responsibility to assess compliance may sound like a good idea in the abstract, but when we talk about foreign targeting, we are outside the FISC's expertise. The FISC was created solely to issue orders for domestic surveillance on a particular target. Congress, in 1978, recognized the court's expertise over domestic matters but specifically left foreign surveillance activities to the executive branch and the intelligence community and the oversight of the intelligence committees. By now requiring judicial review of minimization procedures for a foreign target, we would take a huge step back from a system that worked well for almost 30 years. So there is a red line, and I need to draw it.

But that line is already drawn. As a practical matter, when the FISC assesses compliance with minimization procedures, it would be second- guessing trained analysts' decisions about which foreign terrorist to track and how to do that. The FISC knows what to look for when it issues a warrant to tap someone's phone in 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. This is what assessing compliance would have them do. The court knows this. Let me point to the court's own words from its published opinion on December 11, over a month ago, in the case In re: Motion for Release of Court Records. There the FISC judges say they are:

Not expected or designed 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 the national security.

That is a quote from the court which some want to give this responsibility which they say they do not have. We need to heed the words of the FISC and not require them to make judgments they themselves believe are better left to the executive branch.

Let me repeat for my colleagues to hear clearly. The FISC, the FISA Court itself, is virtually saying: Congress, don't do this. We are not the right ones to make this determination. We should be wary to disregard their own assessment of their own competency in this vital intelligence collection area.

Additionally, throughout this debate, we must remember we are talking about foreign terrorists operating in foreign countries intent on harming us and our interests. Senator Leahy's new substitute slightly modifies a requirement from the original substitute that the Department of Justice inspector general conduct a comprehensive review of the President's Terrorist Surveillance Program. That modification, however, does not address the underlying concerns with his provision. This review simply is not necessary and is beyond the expertise of the DOJ inspector general.

The Intelligence Committee has had numerous briefings and hearings on the TSP. We have spoken at length with lawyers from the Department of Justice and with the operators, and we have read document after document on which this program was based. We have spent more time on FISA than I ever dreamed possible or that I ever wanted to do. Yet I have not heard one convincing argument as to why this review must be conducted. Again, it may look good politically, it may make good sound bites, but we have reviewed this program to death over the past year. Yet another review is redundant, unnecessary, and because of that is wasteful.

Finally, as a part of my agreement with Chairman Rockefeller, we included a 6-year sunset in the bill. Personally, I think sunsets are a bad idea when we are talking about national security. The Attorney General, General Mukasey, has stated repeatedly, ``There are no sunsets in our enemies' fatwas.'' I understand what he is getting at. The terrorists' desire to get after us is not limited. We should give our intelligence operators something they can hang their hat on when they retool their systems and move forward with intelligence collection.

If there is a debate about sunsets, I am considering saying we ought to get rid of even the 6-year sunset. I agreed to 6 years to get this bill moving, but shorter than that I don't believe is acceptable. If we provide stricter, shorter term sunsets, that would tell the private entities and our intelligence communities that Congress's view on civil liability protection is only temporary and the power for our intelligence collection is only temporary. This new statute gives our operators confidence in the new statute. It gives our collaborating allies abroad confidence we will be there.

Let me make one thing clear. Our job in the Senate Intelligence Committee, and the same on the House side, is to review intelligence collection methods. We review it on a semiannual or even monthly basis. If we find there is a problem with this bill, we should not have to wait until the sunset comes to change it. We see a problem, we need to fix it. We don't need to wait for 6 years or 4 years to fix it. If there is a problem, let's start fixing it as soon as we find it.

A sunset does not prevent us from passing new legislation when we see fit. No sunset at all would put even greater pressure on us to make sure it is working properly. If in 1 year the bill was shown to be inadequate, we should act immediately to fix it, not wait until the sunset. So I don't like sunsets, but the 6 years was a compromise with the chairman and other members of the committee to produce this bill.

The Judiciary Committee, in this new substitute, seeks to further shorten the time frame to 4 years. Our intelligence collectors, our troops on the battlefield, the private parties who depend on this authorization need certainty, not authorities that change depending on what year it is. A 4-year sunset would not give them the certainty they need.

In conclusion, our intelligence collectors, our troops who are in harm's way, need this legislation, and our country needs this legislation. But let me talk about the troops. In May, when I visited Iraq, I talked directly with the commander of our Joint Special Operations Command, who told me the limitations under the old law, shutting down of the collection that occurred because of the new technology, so adequately described by the chairman, prevented him from collecting key information he needed to protect our troops in the theater, on the battlefield. My son happened to be one who was there at the time. That got my attention. It had the attention of the troops and the commanders. The commander told us he could kill or capture top al- Qaida leaders, but he was not able to collect signals intelligence on them. Does that make sense? No.

The bottom line in this story of FISA is terrorists were able to use technology and our own outdated laws to stay a step ahead of us. We can't afford to give them that step. The Intelligence Committee's bill gives our intelligence operators and law enforcement officials the tools they need to conduct surveillance on foreign terrorists and foreign countries planning to conduct attacks inside the United States against our troops and against our allies. It is the balance we need to protect our civil liberties without handcuffing our intelligence professionals.

I hope we can do the right thing--pass this bill, with the perfecting managers' amendment but without any additional changes that will compromise its functionality and prevent it from becoming law. We need a bill both Democrats and Republicans support, the DNI supports, that is good for the intelligence community, and that the President will sign into law.

That means we need to dispense with the Judiciary substitute that is immediately before us and proceed with consideration of amendments to the bipartisan Intelligence Committee bill. I look forward to making this happen.

I yield the floor.

Mr. President, may I ask the distinguished Senator from Texas to yield for a unanimous consent request and then she will be recognized after that.

Please.

Mr. President, since we have had two speakers on the majority side, I ask unanimous consent that Senator Hutchison and then Senator Brownback be recognized on our side.

I thank the Chair.

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

Mr. President, I will be speaking more at about 1:30 on the Judiciary Committee substitute, but I thought I would clarify a few concerns that have been raised that I have heard. I know there are a number of Members coming down, and I do not want to hold them up, but I do want to point out that my good friend, the senior Senator from Pennsylvania, was concerned that the President's terrorist surveillance program was not briefed to Members of Congress. It is my understanding it was briefed to the leadership of the Intelligence Committee and the leadership on both sides. Personally, I would have preferred that more Members be briefed, but it is my understanding that when these leaders were briefed, it was their view that in light of the urgency and the need and the difficulties of explaining what we were going to do prior to--which could delay the implementation of the terrorist surveillance program, that it was a consensus of these meetings that the President should not bring a measure before Congress modifying FISA to take account of the new means of electronic surveillance and electronic communication.

Secondly, my good friend, the senior Senator from Connecticut, in his comments urged that we ban reverse targeting. I would call his attention to section 703(b), subparagraph 2 and subparagraph 3, which do explicitly ban targeting of overseas terrorist activities in order to gain information on U.S. persons. That is explicitly banned.

The Senator from Connecticut also spoke warmly of the exclusive test that existed in FISA from the period from 1978 forward.

We have included in the bill the exclusive means test that worked for some 30 years. That is in section 102. Without getting into classified information, we can say that this bill does not allow our intelligence community to listen in on conversations or read mail unless those persons are afforded the protection of the Intelligence Committee bill. To clarify that, the collection is carefully limited and overseen. There have been comments that the collection efforts by the NSA are not subject to oversight. I can only suggest to the people who have raised those concerns to ask members of the Intelligence Committee how much time we have spent looking into electronic surveillance. I can assure them that we enjoy looking into all these issues. We do so on a continuing basis. We have done so extensively over the last 9 months. I am sure they can count on us continuing to exercise that oversight. The Intelligence Committee has been set up specifically to review all of the intelligence collection methods of our intelligence community. They do a great job. We look over their shoulders and suggest ways they can improve the collection and analysis and also take steps to ensure they stay carefully within the boundaries of the Constitution and the laws that apply to them. With respect to collection methods such as 12333, we also oversee that as well.

So the people of America can be assured that the laws, the Constitution, and the regulations are being complied with. That is our job in the Intelligence Committee. We intend to continue to do so. I didn't want to leave without clarification of the suggestion that some of these matters were not attended to.

I see my colleague from Utah. I thank him for his great work. He is not only a valuable member of the Intelligence Committee but his work on the Judiciary Committee reflects his keen understanding and devotion to ensuring that we do a proper job of oversight and legislation when it comes to these very important collection methods.

I yield the floor.

Mr. President, I ask unanimous consent that I be given the full 15 minutes that was allotted to us before the 2 o'clock vote. I have some remarks, and I believe Senator Rockefeller, if we need that, would like the full 15 minutes.

Mr. President, last night, as I was preparing to leave my office, I learned, with surprise, that Senator Leahy had made significant modifications to the pending Judiciary Committee substitute.

Our study during the night of these modifications revealed that the partisan, Democratic-only Judiciary Committee substitute remains deeply flawed.

While some aspects of the modified substitute have been cleaned up-- and, in fact, appear to borrow language that Senator Rockefeller and I have been negotiating over the past several months as part of our perfecting managers' amendment--the substitute contains many problematic provisions that I cannot support.

In contrast to the underlying Intelligence Committee bill, I doubt that the problematic provisions in the modified substitute were vetted with the Republican Judiciary Committee members, the intelligence community, or the Department of Justice.

It should be no surprise, then, that the DNI and the Department of Justice continue to oppose the modified substitute.

Let me clarify some matters that were brought up by the distinguished senior Senator from Massachusetts. First, the Protect America Act, which expires on February 1, was not negotiated in secret. The DNI asked the Intelligence Committee in April to consider a bill he set up. He came before our committee and testified openly in May. He came before the Senate in a classified meeting in S-407 in June. When we had not been able to get a markup in the Senate Select Committee on Intelligence and time was running short, he offered a stripped-down version that would allow intelligence collection to continue. We were unable to get a markup, so we filed with Leader McConnell the bill on Wednesday. That bill sat on the floor Wednesday, Thursday, and Friday.

There were secret negotiations, but those were on the majority side. The chairmen of several committees worked without informing the members of the Intelligence Committee or, to my knowledge, any Republicans on any of the committees, and they finally presented that to us less than an hour before we went to the floor. So that was negotiated in secret. It was unacceptable, and it did not allow intelligence collection to continue. I am glad to say, on a bipartisan basis, we rejected the secretly negotiated bill and passed the Protect America Act.

The Protect America Act did not expand on the authorities of FISA, other than to clarify the means of collection, which previously were by radio. Most communications overseas are by radio. Many communications were going through America. This bill before us today, the Intelligence Committee bill, does not, as my friend said, expand on the powers of the intelligence community to collect. In fact, they impose more restrictions to guarantee the privacy rights and the constitutional rights of Americans. Those are in the bill. Those were negotiated. We pushed the DNI and the Department of Justice lawyers as far as we could to build in additional protections. Those are in the bill.

Now, if one reads the bill, you would see that reverse targeting is prohibited in section 703(b), subparagraphs 2 and 3. It does strengthen the privacy protections. That is why the Senate Intelligence Committee bill is the bill that we should pass.

Moving back to the Judiciary Committee substitute, there is no provision for retroactive or prospective immunity for communications providers or for preemption of State investigations into providers' alleged assistance to the Government in relation to the terrorist surveillance program.

The distinguished chairman of the committee, Senator Rockefeller, laid out at length, and very forcefully, why this protection is needed. This protection is needed to assure that we can have the continued assistance of carriers who might be called on not only in terrorist matters but on many domestic crimes to provide assistance. Furthermore, if we don't have that protection, if these lawsuits continue, it is quite likely that the court proceedings will get into details further on how the collection of electronic information and communications is accomplished. Every time we talk about that and lay out more, we give more information and more guidance to the terrorists themselves on how to avoid our surveillance. We don't want to be in that position.

The next problem with the substitute from the Judiciary Committee is that, unlike the managers' amendment that Senator Rockefeller and I intend to offer for the Senate's consideration, the new substitute doesn't fix the reporting problems of the Wyden amendment, which had a great objective--and I agreed with the objective--but it is unworkable. We are going to make it workable in our bill.

Furthermore, it requires the intelligence community to perform the impossible task of estimating and recording U.S. person communications in its possession. Anybody who wants to know why that is so, we would be happy to meet with them in a closed meeting and explain why that is not workable. It would be an impossible burden, one we cannot undertake on the committee.

Next, the substitute modifies the exclusive means provision from the original substitute, but it is still problematic and requires an express statutory authorization. That presumes that after the next attack Congress will be in a position to act quickly to pass necessary authorizations. I don't think we want to impose that provision.

The underlying Intelligence Committee bill provides the same exclusive means, directions, and limitations that were in the FISA bill initially.

Another problem with the Judiciary Committee bill is that it places a provision in the Intelligence Committee bill that would have allowed collection to continue until the FISA Court of review has--if they had gotten an unfavorable ruling from one judge, it allows collection to continue until the court of review rules on it. This is a real problem if there is one unfavorable opinion that might put us deaf to collections that are necessary.

The Intelligence Committee determined that anything except an automatic stay through the FISA Court of review could jeopardize our intelligence collection. This was already a compromise from the full automatic stay that was in the Protect America Act.

Next, the substitute would impose unreasonable new restrictions on the use of foreign intelligence information, including information not concerning U.S. persons, obtained or derived from acquisitions using targeting procedures that the FISA Court found to be deficient in some manner, throwing out vital terrorist information because we didn't protect the constitutional rights or there were some procedural flaws in targeting a foreign terrorist in a foreign land.

It creates a superexclusionary rule in the foreign intelligence arena that is at odds with the 9/11 Commission's mandate for the intelligence community to find and link disparate pieces of foreign intelligence information.

Read what they said. It was important. They said we are not sharing information, and we need to share information within the community if we are going to have a chance to prevent the next 9/11.

On reverse targeting, the substitute changes the bright-line reverse targeting provision in S. 2248 to a new rule that changes ``the purpose'' to ``a significant purpose.'' This change is a significant concern to the DNI and DOJ. They told us it creates so much uncertainty in the appropriate legal standard for collection, and it may confuse analysts trying to follow the standards. This could inadvertently lead to less robust intelligence collection.

Under the bulk collection, while the new substitute modifies the bulk collection prohibition in the original Judiciary Committee substitute, it doesn't solve the problem. This provision could have significant unintended operational consequences, and it is unnecessary given restrictions in S. 2248 about intentionally targeting persons in the United States.

As I said, for example, if a general is about to order troops into Fallujah, this prohibition could impede the ability of the intelligence community to listen to calls coming into and out of that city without a court order.

The FISA Court would be commanded, under the Judiciary Committee's substitute, to assess compliance with minimization procedures used for the acquisition of foreign intelligence information from individuals outside the United States. As I reported earlier in my floor speech, there is a FISA Court opinion, In Re: Motion For Release, December 11, stating:

The Court recognizes the executive branch has the expertise

in national security, and the Court should not be making

judgments as to which particular surveillance unit should be

conducted.

Finally, it replaces a 6-year sunset with a 4-year sunset. As the Senator from Massachusetts said, this bill ought to be reviewed continually. Exactly. That is what the intelligence community should do. We should not have a provision that would sunset the authority for our collection of vital information. But we should have continuing oversight which the Intelligence Committees have provided and will continue to provide to make sure that collection is proceeding in a manner consistent with the Constitution, with the laws, and the regulations overseeing it.

We provide a robust oversight of the NSA collection. That collection must be done in a manner consistent with the guidelines that Congress has laid down, the Constitution has laid down, and the administration has laid down. If there is any problem with that, then it is up to the Intelligence Committees of both Houses to bring before the Congress, if we cannot correct it by interceding with the people in the agency, a bill to change it.

I see my chairman, Senator Rockefeller, is here. I will be glad to yield the remaining 3 minutes of my time to the distinguished chairman of the committee.

I am going to offer a motion to table, but yes.

Mr. President, I move to table, and I ask for the yeas and nays.

I move to reconsider the vote and to lay that on the table.

The motion to lay on the table was agreed to.

Mr. President, I thank the chairman for his extensive discussion of this measure. This is one of the significant additions we are making to the preexisting FISA law. It is something that was brought up and discussed in the committee. There was general agreement that an American or a U.S. person who goes abroad ought to be provided some form of protection. We discussed it at length.

The objective was provided in a very brief statement in the amendment that appeared before the committee. I was very concerned about it because I knew just enough about the FISA law to be thoroughly confused about how it would work. I voted against it but expressed my desire and willingness to work with the sponsor of this amendment and the other members of the committee because it was a good idea.

Well, we found out how complicated it is to amend and to change the FISA law because of the many working parts, not only within the law but within the actual means of interception.

Well, we worked for better than a month on a bipartisan basis with the proponents of this measure--and I consider myself a proponent of this measure--with the intelligence community, lawyers for the Department of Justice, and we came up with a simple little 25-page statutory provision. It is now included in the managers' amendment.

Should anyone think it is simple to amend FISA, I suggest you begin reading at page 5 of the measure before us, and read through page 29, I believe it is, to show how it is accomplished. Nevertheless, this puts in a new layer of protection for U.S. persons. Obviously, we are concerned. Those are American citizens who are abroad.

There were questions raised: Well, if I go abroad, can the intelligence community tap my phone without a court order? Well, first of all, the intelligence community is not going to be tapping anybody's phone or trying to listen in on any--intercept any conversations unless they have good, solid information that that phone is in a terrorist's hands. They have to have intel before they even look at that conversation. That intel could come in many forms which I won't describe here, but that--first of all, if you are abroad, you would not have been targeted unless you had certain reasonable connections with a terrorist activity or a terrorist who would give the Attorney General and the intelligence community the basis for asserting that there was a terrorist content to the phone conversation.

Now, why do they do this? Because they have more communications than they can handle. They have more terrorist communications almost than it is possible to keep up with. The last thing they want to do is target a conversation of a U.S. person or an American abroad who doesn't have any connection to terrorist activities. So previously, only if there was one of the connections that would give reasonable grounds to lead the Attorney General to say that there was valuable foreign intelligence collection would you collect on it. But now, if that is an American citizen or, more broadly, a U.S. person, they have to go to the intelligence court, the FISC, to get an order--two different kinds of orders depending upon how the collection is going to occur--and get an order finding that there is probable cause to believe, as the chairman has said, that this person is an agent, officer, employee of a foreign power and has foreign intelligence information that may be communicated.

So this is a protection that I hope those concerned about the use of electronic surveillance will understand is a significant step we have taken toward protecting the rights of American citizens. But I point out the fact that it took us a month and about 24 or 25 pages to accomplish it. But with that being said, I urge my colleagues on both sides of the aisle to support it. This is a major new expansion of protection for American citizens, U.S. persons, and this is one of the privacy constitutional right protections added by this bill that was never there before. I urge my colleagues to support it.

Mr. President, I yield the floor.

Mr. President, this measure has been considered in the Intelligence Committee. I believed it was not necessary to require additional paperwork, but also I think it is important to note that some of the charges made about the powers given to the intelligence community are way out of bounds.

This measure before us does, in fact, put further constraints on the intelligence community. There are powers that exist in both the intelligence community and in law enforcement agencies which may not be affected here. But to say this offers broad new means of getting into business records and other personal effects of individuals--this is a bill devoted to electronic surveillance. The reason we needed to do the bill on electronic surveillance was the fact that the means of electronic surveillance have changed, and the old FISA law did not permit the kind of collection that previously was permitted when communications outside the United States were by radio rather than by cable.

The whole purpose of this bill is to ensure that there are procedures in place to permit surveillance targeting people reasonably believed to be outside the United States who have connections with terrorist activities, so that they are an agent or an employee or an officer of a foreign power and have legitimate foreign intelligence information. That is the test. That is what this does. Arguments about the nature of foreign intelligence surveillance should be limited to this bill.

Mr. President, I yield the floor.

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

Mr. President, I send a second-degree amendment to the desk and ask for its immediate consideration.

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

Mr. President, as the sponsor of the first-degree amendment has noted, this was debated and it was adopted on I believe a 10-to-5 or 9-to-6 vote in the committee, but we found out there were substantial problems with this amendment to which the intelligence community objected. We modified it to the provisions that are now in the current managers' amendment and the underlying bill.

The major problem with this amendment is the pleadings. Pleadings have historically been protected during any litigation involving FISA. Congress has only received limited access to certain pleadings, certain actions for audit purposes in controlled circumstances.

This amendment I have offered incorporates the national security protection, which the author of the underlying amendment suggested, and it does provide for the 5 years of back opinions from the FISC. This gives the 5 years. We have had semiannual reports from the FISC on all of the opinions handed down in the previous 6 months.

It is somewhat burdensome, but I have been negotiating with the Department of Justice lawyers. They say while it is burdensome, this is not objectionable. They prefer not to have it, but the one thing on which they are standing firm and believe they cannot accept is to require turning over the pleadings.

The pleadings are actually some of the most sensitive intelligence information we have because in those pleadings the Government has to describe the facilities to be used, the targets of the collection, the information, and how the information is going to be collected, who gave them the information, how they got it. This is the ultimate description of sources and methods. Any time the sources and methods or the assets are disclosed, it is possibly a death sentence to someone who is working with us undercover or as an agent. The Department of Justice believes this information is so sensitive that it has to be kept extremely closely held within the court and the people who must see it to issue the order. Without that protection, they believe that our most sensitive assets, our means of collection, where the facilities are, the whole framework of our intelligence system could be brought down. The opinions themselves go into legal reasoning; they give the justifications. They are the end product of the work of the FISC.

What the Department of Justice says the intelligence community is unwilling to give is to lay out and submit to Congress the whole list of information of sources, methods, facilities, targets, the names of assets, or the identification of assets that could result in death for the informant, the agents, or the assets.

We have accepted a portion of the amendment proposed by the Senator from Wisconsin. This accepts another portion, but that final portion is objectionable and is a red line. I urge my colleagues not to support the amendment which turns over the very most secret sources and methods which the intelligence community cannot afford to share.

I yield the floor.

Madam President, I thank my colleague from Oregon. As usual, he states objectives that he and I agree with. We both have the same desire, to protect American citizens, U.S. persons, certainly military men and women and their families on military bases.

I would say to my friend, under the clear provisions of section 703 and 704, if they are an American military person overseas, the first test would be: Are you an officer or an employee of a foreign government?

Obviously, they are employees of our Government. But you would have to be acting as an agent of a foreign power, and, furthermore, there would have to be intelligence information provided showing that there was reasonable grounds to believe there was intelligence information.

Now, there could be the situation, as there has been in the past--it has happened within the CIA; it has happened within the military--that some person may turn into an agent of a foreign power even though they are wearing our uniform. That is a very rare situation. But in that instance, then, you would be able, if you had intelligence information, to suggest this person was acting as an agent and had the appropriate foreign intelligence.

Absent that, nobody is going to sweep them up, nobody is going to listen in, nobody is going to listen in to their phone calls back home to their families or their families' calls to them.

Now, my colleague mentioned some other questions about collection. And this is a very important discussion, a complicated discussion, but regrettably a classified discussion. So let me suggest to him that we understand. He has talked to the Department of Justice. I believe they have had some confidential discussions. We would be happy to have more with him. I regret we cannot have them on the floor of the Senate because they go into matters which are classified.

But he and I share the same objective. We have slightly different ways of getting there. There are certain items I think have to be discussed off the Senate floor.

I yield the floor.

Madam President, I must object to that. I do commend the Senator from Rhode Island and the Senator from Oregon for their leadership on the issues which they have addressed. They have made a strong push, and they worked with us through the 20-plus pages of construction to get a workable means of achieving the goal they so eloquently champion. We will continue to work with them on those efforts dealing with the items the Senator from Oregon addressed. However, I must object to setting aside the pending amendment.

Madam President, we too want to move through this bill. This amendment, sponsored by the Senator from Rhode Island, was included in the Judiciary Committee substitute for the Intelligence Committee bill. We defeated that.

The chairman of the Judiciary Committee has said we are going to come back and vote on all of these amendments one by one. At this point I think it is appropriate that the leaders are discussing or will discuss how we are going to proceed. In the meantime, we are not going to set aside amendments

until we have some direction from the leadership on how they wish to handle these amendments.

On the substance of the amendment, earlier today in discussing the Judiciary Committee substitute, I pointed out that the FISA Court, or the FISC as it is called, has said: We are not going to get into this area. We don't want to get into the business of trying to oversee how foreign intelligence is collected. That means whether it is collected or whether there is incidental collection, those challenges are significantly different from the challenges that the FBI would face in carrying out their court order.

But it should be noted, as I believe the Senator from Rhode Island has, that the FISA court order, the FISC, will set out the requirement that minimization procedures be followed. There will be significant review and oversight of those because the person conducting the surveillance has a supervisor who will look over their shoulder. That supervisor knows there will be a representative of the inspector general who is watching, who is looking for any problems. That inspector general knows there will be a lawyer from the Department of Justice overseeing it to assure there is compliance.

We have an Intelligence Committee with a very able staff, some of whom understand very well how the NSA programs work, whether it is under the FISC or under the previous time. It is our job, under our challenge, our charter, as an oversight committee of the intelligence community, to make sure these laws are followed. So I will say that when the FISC was challenged to take on a broader role in handling foreign intelligence, they stated in the December 17 released opinion, In re Motion for Release of Court Records, at the very bottom of page 19, footnote 31, the appellant claimed that the court could conduct a review because it is a ``specialized body with considerable expertise in the area of national security.'' The FISC itself said that this overstates the FISC's expertise:

Although the FISC handles a great deal of classified

material, FISC judges do not make classification decisions

and are not intended to become national security experts. . .

. (FISC judges are not expected or desired to become experts

in foreign policy matters or foreign intelligence activities,

and do not make substantive judgments on the propriety or

need for a particular surveillance). Furthermore, even if a

typical FISC 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 the national

security.

They cite a case, which says:

. . . (``a reviewing court must recognize that the

Executive departments responsible for national defense and

foreign policy matters have unique insights'' into national

security harms that might follow from disclosure). . . .

At the end it says:

For these reasons, the more searching review requested by

the [appellant in that case] would be inappropriate.

So while there are court orders that the minimization procedures be followed, there is an existing framework for significant oversight, and there is the oversight not only by the executive branch but by the legislative branch, and the FISC says that is not the business they are to get into.

We will have an opportunity to revisit this when the matter is brought up. But I wanted to advise my good friend, a diligent worker on the Intelligence Committee, why we had argued against that provision in the amendment or the substitute that the Judiciary Committee proposed.

I thank the Chair and yield the floor.

I object, Mr. President.

Mr. President, if I may respond to the Senator from Rhode Island--I apologize to the Senator from Maryland--I say to the Senator from Rhode Island, what I said was his provision was in the Judiciary substitute that we defeated. We did not deal with his amendment in the Intelligence Committee. We discussed it. He offered it, and it was accepted in the Judiciary substitute. That amendment was defeated.

What I raised was the concern that our leadership has about going back and revisiting all the elements of the Judiciary substitute.

I thank the Chair, and my apologies and thanks to my colleague from Maryland.

Mr. President, I ask unanimous consent that Mr. Jesse Baker, a Federal Government detailee for Senator Hatch, be granted the privileges of the floor for the consideration of this bill.

Mr. President, today I wish to recognize a devoted pastor, community leader, father and friend: Reverend Dr. Wallace S. Hartsfield, Sr.

On January 1 of this year, Reverend Hartsfield retired as senior pastor of the Metropolitan Missionary Baptist Church in Kansas City, MO. He served as the congregation's pastor for more than 40 years and as a dedicated member of the clergy for more than 55 years.

Dr. Hartsfield has worked as a key leader and mentor in social, political, and religious circles in Kansas City and throughout the country. He has served at every level of the National Baptist Convention of America and as the president of the General Baptist Convention of Missouri, Kansas, and Nebraska.

My friend, Congressman Emanuel Cleaver, has dubbed this remarkable leader the ``Godfather of Preachers'' for his ministerial knowledge and superior oratorical skills.

Countless Kansas Citians--and Americans--have been touched by this man and his messages. Always positive, Dr. Hartsfield speaks out for peace, social and racial justice, AIDS intervention, faith, and hard work. And like a true pastor, he cares deeply for his congregation and the surrounding community. My guess is he will not slow down much even in retirement.

As a measure of our appreciation for Pastor Hartsfield's long service to the community, Congressman Cleaver, Senator McCaskill, and I worked to enact legislation designating the U.S. Postal Service facility at 4320 Blue Parkway in Kansas City the ``Wallace S. Hartsfield Post Office Building.'' This designation is but small recognition of Dr. Hartsfield's many accomplishments as a minister, dedicated community activist, civil servant, and compassionate role model. I am proud to call him a friend.

Future generations will look to his leadership and example to find hope and inspiration. Dr. Hartsfield has truly made the world a better place.