Floor Statements

Mr. President, there will be a meeting of the Committee on Rules and Administration on Wednesday, February 13, 2008 at 10 a.m. in SR-301, Russell Senate Office Building, in order to hear testimony on Protecting Voters at Home and at the Polls: Limiting Abusive Robocalls and Vote Caging Practices.

Mr. President, today Senator Hutchison and I are introducing two bills that will significantly alleviate the burden of illegal immigration on State and local governments: the SCAAP Reimbursement Protection Act of 2008 and the Ensure Timely SCAAP Reimbursement Act. We are joined by Senators Boxer, Kyl, Schumer, Cornyn, Durbin, McCain, Bingaman, Craig, Cantwell, Domenici, and Crapo.

These bills will amend the State Criminal Alien Assistance Program, SCAAP, statute to ensure that states and localities receive more funding for costs associated with incarcerating criminal aliens, and that these reimbursements are given out in a timely manner.

The cost of incarcerating criminal aliens is high. In California alone, the State spent more than $900 million in 2007 to house over 20,000 criminal aliens.

Congress enacted SCAAP in 1994 to help reimburse States and localities for the cost of arrest, incarceration, and transportation of these aliens.

However, in 2003, the Department of Justice, DOJ, reinterpreted the statute. Now States are only reimbursed for what they spend incarcerating convicted criminal aliens and only when the arrest and conviction occur in the same fiscal year.

The DOJ reinterpretation has significantly cut the reimbursement local governments are eligible to receive for incarcerating and processing illegal aliens.

This reinterpretation is even more devastating because SCAAP is consistently under-funded. The President has zeroed out SCAAP funding in his budget proposal over the past 6 years. Through bi-partisan support, Congress was only able to partially fund the program.

As a result, SCAAP only reimburses States for a fraction of the costs of incarcerating criminal aliens. For example, in fiscal year 2007, SCAAP reimbursed only $109.5 million of the more than $912.5 million spent by the California Department of Corrections that year. That means the State paid $803 million of its own funds to house criminal aliens.

This cut has had a domino effect on public safety funding. Every dollar less that SCAAP reimburses States means a dollar less to spend on critical public safety services. For example, after the SCAAP funding cuts in 2003, the Los Angeles County Sheriff's Department implemented an ``early release'' policy for prisoners convicted of misdemeanors.

I believe it is the Federal Government's responsibility to control illegal immigration. The funding cuts imposed by this administration have let our local public safety services down, and have made our communities less safe.

The SCAAP Reimbursement Protection Act of 2008 would restore the original intent of SCAAP so that States are reimbursed for the costs of incarcerating aliens who are either charged with or convicted of a felony or two misdemeanors. States would also be reimbursed regardless of the fiscal year of the incarceration and conviction.

This bill has been endorsed by the National Sheriffs' Associate, California State Association of Counties, CSAC, the U.S./Mexico Border Counties Coalition, the Virginia Sheriffs' Association, the Los Angeles County Sheriff Lee

Baca, and the Sheriffs' Association of Texas.

Our colleagues on the House Judiciary Committee unanimously passed a companion bill, H.R. 1512, and I urge you to do the same.

Another problem with SCAAP is the significant delay in reimbursement. Recently, State and county governments that foot the bill for holding criminal aliens between July 2004 and June 2005 had to wait until June 21, 2007, before they were reimbursed.

For example, Los Angeles County, San Bernardino County, and Riverside County waited 2 years to receive their reimbursement--totaling $85.9 million. While they were waiting, public safety offices had to cut back on critical services. This delay is worse when one considers that even when localities receive the federal funds, they are only reimbursed for pennies on every dollar spent.

Delays place unreasonable budgetary burdens on States, counties, and municipalities that already shoulder most of the costs of housing criminal aliens.

California is not alone. Every other State depends on these funds to perform what is ultimately a federal responsibility--to control illegal immigration and its effects in our communities. These delays affect every State.

The Ensure Timely SCARP Reimbursement Act would help ease this burden on States and localities by requiring the Justice Department to disburse funds within 6 months of the application deadline.

I ask my colleagues to join me in supporting these much needed amendments to the SCAAP statute. Mr. President, I ask unanimous consent that the text of these two bills be printed in the Record.

Mr. President, today Senator Hutchison and I are introducing two bills that will significantly alleviate the burden of illegal immigration on State and local governments: the SCAAP Reimbursement Protection Act of 2008 and the Ensure Timely SCAAP Reimbursement Act. We are joined by Senators Boxer, Kyl, Schumer, Cornyn, Durbin, McCain, Bingaman, Craig, Cantwell, Domenici, and Crapo.

These bills will amend the State Criminal Alien Assistance Program, SCAAP, statute to ensure that states and localities receive more funding for costs associated with incarcerating criminal aliens, and that these reimbursements are given out in a timely manner.

The cost of incarcerating criminal aliens is high. In California alone, the State spent more than $900 million in 2007 to house over 20,000 criminal aliens.

Congress enacted SCAAP in 1994 to help reimburse States and localities for the cost of arrest, incarceration, and transportation of these aliens.

However, in 2003, the Department of Justice, DOJ, reinterpreted the statute. Now States are only reimbursed for what they spend incarcerating convicted criminal aliens and only when the arrest and conviction occur in the same fiscal year.

The DOJ reinterpretation has significantly cut the reimbursement local governments are eligible to receive for incarcerating and processing illegal aliens.

This reinterpretation is even more devastating because SCAAP is consistently under-funded. The President has zeroed out SCAAP funding in his budget proposal over the past 6 years. Through bi-partisan support, Congress was only able to partially fund the program.

As a result, SCAAP only reimburses States for a fraction of the costs of incarcerating criminal aliens. For example, in fiscal year 2007, SCAAP reimbursed only $109.5 million of the more than $912.5 million spent by the California Department of Corrections that year. That means the State paid $803 million of its own funds to house criminal aliens.

This cut has had a domino effect on public safety funding. Every dollar less that SCAAP reimburses States means a dollar less to spend on critical public safety services. For example, after the SCAAP funding cuts in 2003, the Los Angeles County Sheriff's Department implemented an ``early release'' policy for prisoners convicted of misdemeanors.

I believe it is the Federal Government's responsibility to control illegal immigration. The funding cuts imposed by this administration have let our local public safety services down, and have made our communities less safe.

The SCAAP Reimbursement Protection Act of 2008 would restore the original intent of SCAAP so that States are reimbursed for the costs of incarcerating aliens who are either charged with or convicted of a felony or two misdemeanors. States would also be reimbursed regardless of the fiscal year of the incarceration and conviction.

This bill has been endorsed by the National Sheriffs' Associate, California State Association of Counties, CSAC, the U.S./Mexico Border Counties Coalition, the Virginia Sheriffs' Association, the Los Angeles County Sheriff Lee

Baca, and the Sheriffs' Association of Texas.

Our colleagues on the House Judiciary Committee unanimously passed a companion bill, H.R. 1512, and I urge you to do the same.

Another problem with SCAAP is the significant delay in reimbursement. Recently, State and county governments that foot the bill for holding criminal aliens between July 2004 and June 2005 had to wait until June 21, 2007, before they were reimbursed.

For example, Los Angeles County, San Bernardino County, and Riverside County waited 2 years to receive their reimbursement--totaling $85.9 million. While they were waiting, public safety offices had to cut back on critical services. This delay is worse when one considers that even when localities receive the federal funds, they are only reimbursed for pennies on every dollar spent.

Delays place unreasonable budgetary burdens on States, counties, and municipalities that already shoulder most of the costs of housing criminal aliens.

California is not alone. Every other State depends on these funds to perform what is ultimately a federal responsibility--to control illegal immigration and its effects in our communities. These delays affect every State.

The Ensure Timely SCARP Reimbursement Act would help ease this burden on States and localities by requiring the Justice Department to disburse funds within 6 months of the application deadline.

I ask my colleagues to join me in supporting these much needed amendments to the SCAAP statute. Mr. President, I ask unanimous consent that the text of these two bills be printed in the Record.

Mr. President, reserving the right to object, if I may, I ask unanimous consent that I be recognized following the remarks of Senator Inhofe.

Mr. President, I wish to speak for a short period of time on an amendment that I would like to offer, in the event I am given the opportunity to do so.

The Terrorist Surveillance Program began in mid-October of 2001, and it operated until January of 2007. It operated outside of the jurisdiction of the FISA Court during that period of time. That is 5 years and 2 months, when a program operated with no court review or no court approval.

Now, I must regretfully say the United States--long before this President and the prior President, but for decades--has had a rather sordid history of misusing foreign intelligence for domestic political purposes. This was well outlined in the Church Committee's report, which led to the development of the Foreign Intelligence Surveillance Act--which is the bill we are talking about--in 1978.

If you go back and read the record, you will see that President Carter signed the bill. In his signing statement, as well as the record of the deliberations of the Congress at that time, he tried to overcome this sordid history by making the Foreign Intelligence Surveillance Act--this bill--the exclusive authority for electronic surveillance of Americans for the purpose of foreign intelligence. That was the bottom line, so that never again could foreign intelligence be used politically against American citizens domestically.

FISA has continued over the decades, and I think it has served this Nation well.

What we have seen develop now is a Presidency and a President who believes very strongly in his executive authority and has tried, through many different ways, to enhance that executive authority. One of those ways has been signing statements--more signing statements by this President, saying what part of the law he would follow and what part he would not follow; the concept of the unitary Executive, which has been espoused, whereby all commissions, even the FCC, would be subject to the will of the Presidency and by his use of article II authority--asserting that authority under the Constitution as supreme to any statute.

The battle over FISA going back to 1978--was to give FISA statutory authority that would be supreme in this one particular area. The President strove to do it at the time, and the Congress strove to do it at the time. The Judiciary Committee bill has this strong statement of exclusivity in it, which I will propose in an amendment to this bill. The amendment is cosponsored by the chairmen of both committees, Intelligence and Judiciary, Senators Rockefeller and Leahy; Senator Nelson, who serves on the Intelligence Committee; Senator Whitehouse, who serves on both committees along with myself; Senator Wyden from the Intelligence Committee; Senator Hagel from Intelligence; Senator Menendez; Senator Snowe from the Intelligence Committee; and Senator Specter, the ranking member of the Judiciary Committee.

All of us together believe there should be strong exclusivity language that reinforces the intent of the Congress, that the Foreign Intelligence Surveillance Act be the exclusive authority for the wiretapping of Americans for the purpose of foreign intelligence. It makes sense and should be the case.

Finally, the administration said in January of last year: OK, we will try to put the program under the FISA Court. In fact, the program today is under the FISA Court through the Protect America Act. So there is a court review and, where warranted, court warrants are granted for the collection of content. That is the way it should be. As we move to this bill, minimization strictures will be spelled out, approved by the court prior, and that is the way it should be.

We would like to add to this bill the exclusivity language contained in the Judiciary Committee bill. All of us are in agreement, whether we are Intelligence Committee members or Judiciary Committee members, that FISA should become the exclusive authority, and we should try to reinforce it so that in 2 years, 10 years, or 20 years we will not be right back to where we are today.

Let me quickly describe the amendment, and shortly I will try to send a modification of the amendment that is at the desk now, which has some technical corrections in it.

Let me describe this amendment briefly. We add language to reinforce the existing FISA exclusivity language in title 18 by making it part of the FISA language, which is codified in title 50.

The second provision addresses the so-called AUMF loophole. The administration has also argued that the authorization for the use of military force against al-Qaida implicitly authorized warrantless electronic surveillance.

The amendment we would offer states that only an express statutory authorization for electronic surveillance in future legislation shall constitute an additional authority outside of FISA. This makes clear that only a specific future law that provides an exception to FISA can supersede FISA. Only another statute specific can supersede FISA.

Third, the amendment makes a similar change to the penalty section of FISA. Currently, FISA says it is a criminal penalty to conduct electronic surveillance, except as authorized by statute. The amendment replaces that general language with a prohibition on any electronic surveillance except as authorized by FISA, by the corresponding parts of title 18 that govern domestic criminal wiretapping, or any future express statutory authorization for surveillance.

Finally, the amendment requires more clarity in any certification that the Government provides to a company--in this case, a telecom company--when it requests assistance for surveillance and there is no court order.

The FISA law provides only two ways to do electronic surveillance. One of the ways is a court order. That is clear, that is distinct, that is understandable.

The second way provides that if assistance is based on statutory authorization, a certification is sent to the company, in writing, requesting assistance and saying that all statutory requirements have been met.

Under this amendment, the certification must specify what provision in law provides that authority and that the conditions of that provision have been met. This adds specificity to the certification process which today is called for by the FISA law. I believe this is something that is necessary to have in law.

In good conscience, I could not vote for any law that did not make the test case that we need to make, which is our legislative intent that FISA is intended to be the exclusive authority for the collection of electronic surveillance, foreign intelligence involving a U.S. person.

It should be subject to FISA law. I don't think any one of us would want to vote to prevent that from happening.

I believe this amendment could be adopted given a chance. We have vetted it. It will not interfere with the collection of intelligence. We have vetted it with the Department of Justice and with the intelligence agencies. As I say, it is bipartisan.

What I would like to do at this time is call up the amendment. It is No. 3857, and I ask unanimous consent to send a modification to the desk to that amendment.

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

Mr. President, I ask unanimous consent to speak as in morning business.

Mr. President, I know that both chairmen, Senator Leahy of Judiciary and Senator Rockefeller of Intelligence, are coming to the floor to speak on the FISA bill. I wish to take this opportunity, as a member of both those committees, to speak about two amendments I will offer when the time is appropriate. This is in morning business and, therefore, I cannot offer them at this time.

The first amendment will deal with a new question, and that question is: court review of telecom immunity. Let me explain what that means. First, this amendment is submitted on behalf of Senators Bill Nelson, Cardin, and myself. Senator Nelson is on the Intelligence Committee. Senator Cardin is on the Judiciary Committee. I have also worked with Senator Whitehouse on this, though I believe he is going in a slightly different direction.

As Members know, the bill before us provides full retroactive immunity for electronic service providers--that is the legal language-- that are alleged to have provided assistance as part of the Terrorist Surveillance Program. The amendment I am offering creates a judicial review by putting forth the issue of whether immunity should be granted before the FISA Court. There would be no immunity for any individual, private or public official--that is in the underlying bill--or any other company other than electronic service providers.

So the immunity provision in the Intelligence bill only relates to those providers of electronic surveillance--no one else and no other company. I hear talk this would apply to Blackwater. It does not. This is strictly for electronic surveillance.

The FISA Court has the most experience with FISA practice and surveillance law. It has an unblemished record for protecting national security secrets. It has 11 judges. They sit 24/7. It has an appellate branch, and it is knowledgeable and skilled in intelligence matters.

Under the amendment, there would be a narrowly tailored three-part review. First, the FISA Court would determine whether a telecommunications company provided the assistance alleged in the cases against them. If not, those cases are dismissed.

Second, if assistance was provided, the court would determine whether the letter sent by the Government to the telecommunications company met the requirements of 18 USC 2511. That is part of the FISA law. If they did, the companies would be shielded from lawsuits.

Let me tell you quickly what that law says. That law, in 2511(2)(a)(ii)(A) and (ii)(B), allows for a certification in writing by a person specified in section 2518(7) of this title--which means the Attorney General, Deputy Attorney General, Associate Attorney General, or by the principal prosecuting attorney of any State or subdivision thereof acting pursuant to a statute of that State who reasonably determines that a series of conditions are met: that an emergency situation exists, immediate danger of death or physical injury to any person, conspiratorial activity threatening the national security interest or conspiratorial activities characteristic of organized crime.

All those provisions, in one way or another, did exist. So a certification in writing under section 2511 must be by one of the people I enumerated, or by the Attorney General of the United States, and say that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required. Then there are some provisions setting forth the period of time during which the provision of the information, facilities, technical assistance is authorized, et cetera. That is the law.

So the question is: Were the certifications provided adequate under this law that I have read? If they were, the companies would be shielded from lawsuits.

The third part is the hardest. In any case where the defendant company did provide assistance but did not have a certification that complied with the sections I have read in 2511, the FISA Court would assess whether the company acted in good faith, as is the standard under common law. The FISA Court would determine whether the company had an objectively reasonable belief that compliance with the Government's written request or directives for assistance were lawful.

In the underlying bill, all the cases against the phone companies will be dismissed as long as the Attorney General can tell the court that the Federal Government assured the companies that the assistance it was seeking was legally permitted. That is the way it works in the underlying bill. Under this formulation, there is no court review of whether the assistance was, in fact, legal and adequate under the law or whether the companies had an objectively reasonable belief they were legal. This is a major shortcoming of any legislative or executive grant of immunity.

I thought this when I voted for the immunity provision in Intelligence. I had hoped it would be revised in the Judiciary Committee. I hadn't come upon this solution until I discussed it at length with Senator Whitehouse and also with several professors of law and also with a Member of the House of Representatives. Then I thought, I wonder if this is a way to handle the immunity question that is fair and objective and handled by a court that is trained and deals with these matters on a continuing basis. I believe it is.

There are many Senators who believe the immunity provision should be taken out wholesale and that the current court case should continue. That is why I have introduced this amendment with Senators Nelson and Cardin, which puts before the Senate a court review option. This amendment would allow phone companies to receive the immunity they are seeking, but only if the independent review by

the FISA Court determines whether the assistance that was provided is lawful on its face or the companies had a good-faith, objectively reasonable belief that it was in fact lawful.

The arguments run hot and heavy on both sides of the immunity question. They may well prevent the successful passage of a bill by both Houses. Here is some history, though.

Shortly after September 11, 2001, the Government reached out to telecommunications companies to request their assistance in what has become known as the terrorist surveillance program. Within 5 weeks of 9/11, letters were sent from senior Government officials to these companies that put a governmental directive by the executive branch, and these letters were sent every 30 to 45 days to the telecoms, from October of 2001 to January of 2007, when the program was, in fact, put under FISA Court orders.

Only a very small number of people in these companies had the security clearances to be allowed to read and evaluate these letters or directives. And then even they could only discuss the legal ramifications internally. They could not go out and get other opinions and vet it. That is a fact.

We also know that at the time the requests and directives were made, there was an ongoing acute national threat. The administration was warning that more attacks might be imminent, and we now know there was a plot to launch a second wave of attacks against the west coast. In such an environment, I believe, and I think most of us believe, the private sector should help the Government when it is legal to do so. In fact, we should want the private sector to do all it can to help protect our Nation.

In addition, there has been a longstanding principle in common law that if the Government asks a private party for help and makes such assurances the help is legal, the person or company should be allowed to provide assistance without fear of being held liable.

One would think this should especially be true in the case of protecting our Nation's security.

However, this is not a situation that had not been contemplated or prepared for. Congress passed FISA and included language in that statute to address such situations regarding how and when the Federal Government may seek assistance from private companies when conducting electronic surveillance, where there is no court warrant. Those are the sections I have read to you. In fact, the law is very clear on this and under what circumstances a telecommunications company may provide such information and services to the Government, again, as I have indicated.

Assistance can always be provided when there is a court warrant. In this case, unfortunately, the administration did not even attempt to get a FISA Court warrant. It essentially dismissed FISA out of hand as a remedy. That is most unfortunate. The question comes, should the telecoms be blamed for that? I think that is something we need to grapple with.

The administration could have gone to the FISA Court. It chose under its article II power or its misinterpretation of the AUMF that it would not do that. Is that the responsibility of the telecoms?

As I have said, under United States Code, title 18, section 2511, the sections I have read, assistance may be provided without warrant if the Government provides a certification in writing that ``no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required.'' That is the law.

With that said, I have read the letters that were sent to the telecom companies every 30 to 45 days for several years requesting assistance and providing legal assurances. No one can say now with legal certainty that the certification requirements of section 2511 were or were not met. I believe this is a question that should be addressed by a Federal court, and I further believe that the Foreign Intelligence Surveillance Court is the court to do it.

The administration has had its own view that article II of the Constitution provided the President with the authority to conduct international electronic surveillance outside the law, as long as it complied with the Fourth Amendment. To what extent the phone companies relied on this legal theory I do not know, nor does anyone else at this time, I believe.

But the companies have a reasonable argument. They relied on written assurances in which the Attorney General, the top law enforcement officer of the country, said their assistance was lawful. They were not able to do due diligence because of security limitations. We have no way of knowing the full content of their deliberations regarding article II authority of the President, despite testimony they have given to us on the Intelligence and Judiciary Committees.

In addition, these companies face serious, potentially extraordinarily costly, litigation and are unable at the present time to defend themselves in court or in public because of the Government's use of the state secrets defense. This places the companies in a fundamentally unfair place. Individuals and groups have made allegations to which the companies cannot answer, nor can they respond to what they believe are misstatements of fact and untruths.

I asked the companies, when somebody opposed to their position came to testify before a committee of the other body: Why don't you testify and respond? They said: Because our hands are tied; we cannot.

So today we are in a situation that creates a difficult and consequential problem for Congress to address. The way Senator Nelson of Florida and Senator Cardin and I see this is that the question of whether telecommunications companies should receive immunity hinges on whether the letters the Government sent to these companies meet the requirements of 18 U.S.C. 2511. If not, did the companies have a good- faith reason to believe there was a lawful reason to comply? In other words, we should not grant immunity if companies were willingly and knowingly violating the law.

I believe the best solution is to allow an independent court, skilled in intelligence matters, to review the applicable law and determine whether the requirements of the law or the common law principle were, in fact, met. If they were, the companies would receive immunity. If not, they would not.

I wish to briefly speak on the second amendment which I will broach at the appropriate time, and that is the question of exclusivity. This amendment is cosponsored by both chairmen, Senators Rockefeller and Leahy, Senators Nelson, Whitehouse, Wyden, Hagel, Menendez, and Snowe. I will describe it briefly.

We add language to reinforce the existing FISA exclusivity language in Title 18 by making that language part of the FISA bill which is codified in Title 50. The second provision answers the so-called AUMF, the authorization to use military force, resolution loophole. The administration has argued that the authorization of military force against al-Qaida and the Taliban implicitly authorized warrantless electronic surveillance. My amendment states that only an express statutory authorization for electronic surveillance in future legislation shall constitute an additional authority outside of FISA. This makes clear that only specific future law that provides an exception to FISA can supersede FISA.

Third, the amendment makes a similar change to the penalty section of FISA. Currently, FISA says it is a criminal penalty to conduct electronic surveillance except as authorized by statute. This amendment replaces the general language with a prohibition on any electronic surveillance except as authorized by FISA by the corresponding parts of title 18 that govern domestic criminal wiretapping or any future express statutory authorization for surveillance.

And finally, the amendment requires more clarity in a certification that the Government provides to a telecom company when it requests assistance for surveillance and there is no court order.

Remember, on the question of immunity, we have existing law. The law I read earlier is vague and it is subject to interpretation. The question is whether we do the interpretation or whether a proper authority does the interpretation which, of course, is a court of law, namely, in this case, the FISA Court.

Currently, certifications must say under 18 U.S.C. 2511 that all statutory

requirements for assistance must be met. The telecom official receiving that certification is not given any specifics on what those statutory requirements are, so the company cannot conduct its own legal review.

This amendment would require that if the assistance is based on statutory authorization, the certification must specify what provision in law provides that authority and that the conditions of that provision have been met.

I believe our amendment will strengthen the exclusivity of FISA, and I believe it is absolutely critical. Without this, we leave the door open for future violations of FISA.

When FISA was first enacted in 1978, there was a big debate between the Congress and the executive branch over whether the President was bound by law. We have had a repeat of that debate over the past 2 years since learning of the existence of the terrorist surveillance program. But the end result of the debate in the 1970s was clear. FISA was established as the exclusive means by which the Government may conduct electronic surveillance for foreign intelligence purposes, period. FISA was meant to be exclusive, and section 2511(f) of title 18 of the United States Code states that it is, in fact, the exclusive authority for domestic criminal wiretapping and that ``the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such act, and the interception of domestic wire, oral, and electronic communications may be conducted for foreign intelligence purposes.''

The legislative history is clear--ignored, but clear. In stating that ``FISA would prohibit the President, notwithstanding any inherent powers, from violating the terms of that legislation,'' the 1978 report language was a clear statement of the intent of the Congress at that time, just as this amendment is now.

Congress also wrote in 1978 that in terms of authority for conducting surveillance, ``FISA does not simply leave Presidential powers where it finds them. To the contrary. The bill substitutes a clear legislative authorization pursuant to statutory, not constitutional, standards.''

President Carter signed the 1978 bill. His signing statement said this:

This bill requires for the first time a prior judicial

warrant for all

In italics--

all electronic surveillance for foreign intelligence or

counterintelligence purposes in the United States in which

communications of U.S. persons might be intercepted.

So it is crystal clear on its face that FISA was the only legal authority under which the President could proceed when he authorized the ``Terrorist Surveillance Program'' after September 11. He chose not to. And this is where the issue becomes joined, I believe, one day before the highest Court of the land: whether the President's Article II power essentially still supersedes these clear statements of legislative intent and clear drafting of law over many decades.

To make matters worse, the administration claimed and still does claim that the resolution to authorize the use of force against al- Qaida and the Taliban provided authority to institute the Terrorist Surveillance Program. It does not.

I do not know one Member of Congress who believes they voted for the TSP when they voted to authorize the use of force. It was never contemplated, and I was present at many of those discussions, in private and in public. It was never considered.

In fact, FISA allows for 15 days of warrantless surveillance following a declaration of war. So Congress in 1978 had spoken on the issue of wartime authorities, and it did not leave open the possibility of open-ended warrantless surveillance.

Then the Department of Justice came to the Congress in September of 2001 with the PATRIOT Act. The legislation included numerous changes needed to FISA to wage this new war, but the administration did not request changes that would allow the TSP, the Terrorist Surveillance Program, to function lawfully. Nor did the administration express the limitations on FISA surveillance that the TSP was created to overcome.

In effect, we have a claim from this administration, which has never been recanted, that the President has the authority to conduct surveillance outside of FISA. We are spending enormous time and effort to rewrite FISA, but there is no guarantee that the President will not again authorize some new surveillance program outside the law. That is why those of us who put this amendment together have taken so much time to write strong exclusivity language right into this law.

When I have asked the Director of National Intelligence about this, he has said that with the new FISA authorities in this bill, the intelligence community wouldn't need to go outside of FISA. I would like to find comfort in this response, but I don't, and that is why I am offering this exclusivity amendment.

The President does not have the right to collect the content of Americans' communications without obeying the governing law, and that law is FISA.

I recognize the administration disagrees with me on this point. The White House believes the President's Article II authority allows him to conduct intelligence surveillance regardless of what Congress legislates. I disagree.

However, we are not going to resolve that question. As I said, ultimately it is for the Supreme Court to decide. But here now we must make the strongest case that the only authority for electronic surveillance is FISA, and we must again be as clear as possible exactly when FISA authorizes such surveillance.

That is our function under article I of the Constitution.

Let me say, however, despite the fundamental differences of views over separation of powers, this amendment has been carefully negotiated with officials at the Department of Justice, the Office of the Director of National Intelligence, and the National Security Agency. The executive branch has not raised operational problems or concerns with this language.

This exclusivity amendment will not affect ongoing or planned surveillance operations. Of course, I should also say clearly that the executive branch does not support the language. They do not want FISA to be the exclusive authority. But, legislatively, that has been the intention of this Congress since 1978.

I have tried to perform my due diligence on this whole terrorist surveillance program and the FISA issue since the news of the warrantless surveillance broke in December of 2005. I have become convinced that without strong exclusivity language such as provided in this amendment, another Congress in the future will be faced with exactly the same thing we are now.

I will repeat what I said in December: I cannot support a bill that does not clearly reestablish the primacy of FISA. We took the first step with very modest language in the Intelligence Committee. The Judiciary Committee passed very strong language, but unfortunately it has not been added to the bill before us. Both committee chairmen have cosponsored this amendment, as well as the others I have listed. The Department of Justice and the intelligence community have thoroughly reviewed the amendment. There is no operational impact. I hope we end the question once and for all whether the President can go around the law.

At the appropriate time, I will move this amendment, and I hope it will be accepted by this body, as well as the court review of the immunity amendment.

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

Madam President, on behalf of Senator Leahy, I ask unanimous consent that Matthew Solomon, a detailee on Senator Leahy's Judiciary Committee staff, be given floor privileges during the debate and the vote of S. 2448, the FISA Amendment Act of 2007.

Mr. President, I rise to introduce the Credit Card Minimum Payment Notification Act.

Many Americans now own multiple credit cards. The average American has four credit cards, and 1 in 7 Americans hold more than 10 cards.

The proliferation of credit cards can be traced, in part, to a dramatic increase in credit card solicitation. In 1990, credit card companies sent about 1.1 billion solicitations to American homes; in 2006, they sent over 9.2 billion.

As one would expect, the increase in credit card ownership has also yielded an increase in credit card debt. Individuals get 6, 7, or 8 different credit cards, pay only the minimum payment required, and many end up drowning in debt. That happens in case after case.

Over the past two decades, the credit card debt of American consumers has nearly tripled--from $238 billion in 1989 to a staggering $800 billion in 2005.

As a result, the average American household now has about $9,500 of credit card debt. That is almost twice the average level of credit card debt from just 10 years ago.

In light of these figures it should be no surprise that vast numbers of Americans have been filing for bankruptcy in recent years. In 2005-- just before the implementation date of the Bankruptcy Reform Act--over 2 million non-business bankruptcies were filed.

Many of these personal bankruptcies are people who utilize credit cards. The benefits and flexibility these cards offer are enormously attractive. However, these individual credit card holders receive no information on the impact of carrying a balance with compounding interest. Too often individuals make just the minimum payment. They pay it for 1 year, 2 years--they make additional purchases, they get another card, and another, and another.

After, 2 or 3 years, many find that the interest on the debt is larger than the total purchases they originally made, such that they can never repay these cards--and they do not know what to do about it.

The Credit Card Minimum Payment Notification Act would help prevent this problem. Let me tell you exactly what the bill would do. It would require credit card companies to add two items to each consumer's monthly credit card statement: a notice warning credit card holders that making only the minimum payment each month will increase the interest they

pay and the amount of time it takes to repay their debt; and examples of the amount of time and money required to repay a credit card debt if only minimum payments are made.

If the consumer makes only minimum payments for, 6 consecutive months, the amount of time and money required to repay the individual's specific credit card debt, under the terms of their credit card agreement.

The bill would also require that a toll-free number be included on statements, to allow consumers to call and speak to a live person to get an estimate of the time and money required to repay their balance if only minimum payments are made.

If the consumer makes only minimum payments for 6 consecutive months, they will receive a toll-free number for an accredited credit counseling service.

The disclosure requirements in this bill would only apply if the consumer has a minimum payment that is less than 10 percent of the debt on the credit card. Otherwise, none of these disclosures would be required on their statement.

Statistics vary about the number of individuals who make only the minimum payments. One study in 2004 determined that 35 million people pay only the minimum on their credit cards. In a 2005 poll, 40 percent of respondents said that they pay the minimum or slightly more.

What is certain is that many Americans pay only the minimum, and that paying only the minimum has harsh financial consequences.

I suspect that most people would be surprised to know how much interest can pile up when paying the minimum. Take the average household, with $9,500 of credit card debt, and the average credit card interest rate, which last week was 13.74 percent. If only the 2 percent minimum payment is made, it will take them 35 years and $21,799.07 to pay off the card.

That is if the family doesn't spend another cent on their credit cards--an unlikely assumption. In other words, the family will need to pay over $12,000 in interest to repay just $9,500 of principal.

For individuals or families with more than average debt, the pitfalls are even greater. $20,000 of credit card debt at the average 13.74 percent interest rate will take 42 years and more than $46,300 to pay off if only the minimum payments are made.

Mr. President, 13.74 percent is only the average rate. Interest rates around 20 percent are not uncommon. Penalty interest rates on credit cards average 27.3 percent, and seven major credit cards charge penalty rates of more than 30 percent.

Even if we assume only a 20 percent interest rate, a family that has the average debt of $9,500 at a 20 percent interest rate and makes the minimum payments will need an incredible 82 years and $55,084 to pay off that initial $9,500 of debt. That's $45,584 in interest payments-- an amount that approaches 5 times the original debt. These examples are far from extreme.

Last March, the Permanent Subcommittee on Investigations of the Committee on Homeland Security and Governmental Affairs heard testimony from Wesley Wannemacher, a consumer from Lima, OH.

Mr. Wannemacher charged $3,200 to a credit card in 2001 and 2002. He never charged anything on the card again, but he spent the next 6 years struggling to pay it off, as he experienced the kinds of events that American households routinely face--unexpected medical expenses, a growing family, and so on.

By early 2007 Mr. Wannemacher had paid $6,300 on the initial $3,200 in debt, but he still owed $4,400 on the card. Interest charges, late fees, and $1,500 in fees for going over the limit--even though the balance had only exceeded the limit three times--had resulted in total charges of $10,700 for that initial $3,200 in credit.

Fortunately for Mr. Wannemacher, his credit card company reviewed his account--after it became known that he was going to testify to Congress about his experience. The remaining balance on his account was forgiven.

Mr. President, testifying before a Senate committee is not something that Americans could--or should have to--do to escape from crushing credit card debt.

That is one of the reasons why it is so important for this Congress to pass the Credit Card Minimum Payment Notification Act.

There will always be people who cannot afford to pay more than their minimum payments. But there is also a large number of consumers who can afford to pay more but feel comfortable paying the minimum payment because they don't realize the consequences of doing so.

Now I am certainly not trying to demonize credit cards or the credit card industry. Credit cards are an important part of everyday life, and they help the economy operate more smoothly by giving consumers and merchants a reliable, convenient way to exchange funds.

However, I do think that people should understand the dangers of paying only their monthly minimums. In this way individuals will be able to act responsibly.

The bottom line is that for many consumers, the two percent minimum payment is a financial trap.

The Credit Card Minimum Payment Notification Act is designed to ensure that people are not caught in this trap through lack of information. The bill tracks the language of an amendment I cosponsored during the debate on the 2005 bankruptcy bill.

The language of this bill is based on a California law, the California Credit Card Payment Warning Act, passed in 2001. Unfortunately, in 2002, this California law was struck down in U.S. District Court as being preempted by the 1968 Truth in Lending Act.

The Truth in Lending Act was enacted in part because Congress found that, ``The informed use of credit results from an awareness of the cost thereof by consumers.''

This bill would amend the Truth in Lending Act, and would also further its core purpose.

These disclosures will allow consumers to know exactly what it means for them to carry a balance and only make minimum payments, so they can make informed decisions on credit card use and repayment.

The disclosure required by this bill is straightforward--how much it will cost to pay off the debt if only minimum payments are made, and how long it will take to do it. As for expense, my staff tells me that on the Web site Cardweb.com, there is a free interest calculator that does these calculations in under a second. Moreover, I am told that banks make these calculations internally to determine credit risk. The expense of making these disclosures would be minimal.

Percentage rates and balances are constantly changing, and each month, the credit card companies are able to assess the minimum payment, late fees, over-the-limit fees and finance charges for millions of accounts.

If the credit card companies can put in their bills what the minimum monthly payment is, they can certainly figure out how to disclose to their customers how much it might cost them if they stick to that minimum payment.

The credit card industry is the most profitable sector of banking, and in 2006 it made $36.8 billion in profits--an increase of nearly 80 percent from their profits in 2000. I don't think they will have any trouble implementing the requirements of this bill.

I believe that this legislation is extraordinarily important and that it will reduce bankruptcies. In the face of the subprime mortgage crisis, and as we appear to be heading toward a recession, this bill is needed now more than ever.

The harsh effects of the 2005 bankruptcy bill are starting to become apparent. I continue to believe that a bill requiring a limited but meaningful disclosure by credit card companies is a necessary accompaniment. I think you will see consumers acting more cautiously if these disclosures are made, and I believe that will be good for the bankruptcy courts in terms of reducing their caseloads, and also good for American consumers.

The credit card debt problem facing our Nation is significant. I believe that this bill is an important step in providing individuals with the information needed to act responsibly, and it does so with a minimal burden on the industry.

I urge my colleagues to support this legislation.

Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, I wish to inform all Senators that the Committee on Rules and Administration has updated the U.S. Senate Travel Regulations to include two changes.

First, P.L. 110-81 requires the Rules Committee to make certain changes to

the U.S. Senate Travel Regulations. The provision dealing with how Members estimate costs for charter jets is amended in section III Transportation, paragraph C, of the Travel Regulations, as follows:

C. Corporate/Private Aircraft: Reimbursement of official

expenses for the use of a corporate or private aircraft is

allowable from the contingent fund of the Senate provided the

traveler complies with the prohibitions, restrictions, and

authorizations specified in these regulations. Moreover,

pursuant to the Ethics Committee Interpretive Ruling 444,

excess campaign funds may be used to defray official expenses

consistent with the regulations promulgated by the Federal

Election Commission.

i. An amendment to Rule XXXV of the Standing Rules of the

Senate, paragraph 1(c)(1)(C), enacted September 14, 2007,

pursuant to P.L. 110-81, states:

(C)(i) Fair market value for a flight on an aircraft

described in item (ii) shall be the pro rata share of the

fair market value of the normal and usual charter fare or

rental charge for a comparable plane of comparable size, as

determined by dividing such cost by the number of Members,

officers, or employees of Congress on the flight.

(ii) A flight on an aircraft described in this item is any

flight on an aircraft that is not--

(I) operated or paid for by an air carrier or commercial

operator certificated by the Federal Aviation Administration

and required to be conducted under air carrier safety rules;

or

(II) in the case of travel which is abroad, an air carrier

or commercial operator certificated by an appropriate foreign

civil aviation authority and the flight is required to be

conducted under air carrier safety rules.

(iii) This subclause shall not apply to an aircraft owned

or leased by a governmental entity or by a Member of Congress

or a Member's immediate family member (including an aircraft

owned by an entity that is not a public corporation in which

the Member or Member's immediate family member has an

ownership interest), provided that the Member does not use

the aircraft anymore than the Member's or immediate family

member's proportionate share of ownership allows.

ii. Prior to the commencement of official travel on a

corporate or private aircraft, the traveler or the traveler's

designee shall contact a charter company in the departure or

destination city to request a written estimate of the cost of

a flight between the two cities on a similar aircraft of

comparable size being provided by the corporation or private

entity.

1. For example, if a Learjet 45 XR aircraft is being

provided by the corporation or private entity, the traveler

or the traveler's designee shall request a written estimate

of the cost to charter a Learjet 45 XR aircraft from the

departure city to the destination city.

2. If no charter company is located in either the departure

or destination city which rents a similar aircraft of

comparable size, a charter company nearest either the

destination or departure city which does so shall be

contacted for a written estimate.

iii. Following the completion of official travel on a

corporate or private aircraft, reimbursement for related

expenses may be processed on direct pay vouchers payable to

each individual traveler, to the corporation or private

entity, or to the travel charge card vendor. The written

estimate received from the charter company shall be attached

to the voucher for processing.

The second change concerns travel by Members to the home State for funerals. The provision is amended in section of the Travel Regulations entitled ``Special Events, II. Funerals,'' as follows:

II. Funerals: Members who represent the Senate at the

funeral of a Member or former Member may be reimbursed for

the actual and necessary expenses of their attendance,

pursuant to S. Res. 263, agreed to July 30, 1998.

Additionally, the actual and necessary expenses of a

committee appointed to represent the Senate at the funeral of

a deceased Member or former Member may be reimbursed pursuant

to S. Res. 458, agreed to October 4, 1984.

A. Pursuant to 2 U.S.C. 58e, which authorizes reimbursement

for travel while on official business within the United

States, Members and their staff may be reimbursed for the

actual and necessary expenses of attending funerals within

their home state only.

B. Examples of funerals that may be considered official

business include, but are not limited to, funerals for

military servicemembers, first responders, or public

officials from the Member's state.

These changes became effective on December 20, 2007.

Mr. President, I ask unanimous consent to have the updated U.S. Senate Travel Regulations printed in the Record.

Mr. President, I rise to introduce the Credit Card Minimum Payment Notification Act.

Many Americans now own multiple credit cards. The average American has four credit cards, and 1 in 7 Americans hold more than 10 cards.

The proliferation of credit cards can be traced, in part, to a dramatic increase in credit card solicitation. In 1990, credit card companies sent about 1.1 billion solicitations to American homes; in 2006, they sent over 9.2 billion.

As one would expect, the increase in credit card ownership has also yielded an increase in credit card debt. Individuals get 6, 7, or 8 different credit cards, pay only the minimum payment required, and many end up drowning in debt. That happens in case after case.

Over the past two decades, the credit card debt of American consumers has nearly tripled--from $238 billion in 1989 to a staggering $800 billion in 2005.

As a result, the average American household now has about $9,500 of credit card debt. That is almost twice the average level of credit card debt from just 10 years ago.

In light of these figures it should be no surprise that vast numbers of Americans have been filing for bankruptcy in recent years. In 2005-- just before the implementation date of the Bankruptcy Reform Act--over 2 million non-business bankruptcies were filed.

Many of these personal bankruptcies are people who utilize credit cards. The benefits and flexibility these cards offer are enormously attractive. However, these individual credit card holders receive no information on the impact of carrying a balance with compounding interest. Too often individuals make just the minimum payment. They pay it for 1 year, 2 years--they make additional purchases, they get another card, and another, and another.

After, 2 or 3 years, many find that the interest on the debt is larger than the total purchases they originally made, such that they can never repay these cards--and they do not know what to do about it.

The Credit Card Minimum Payment Notification Act would help prevent this problem. Let me tell you exactly what the bill would do. It would require credit card companies to add two items to each consumer's monthly credit card statement: a notice warning credit card holders that making only the minimum payment each month will increase the interest they

pay and the amount of time it takes to repay their debt; and examples of the amount of time and money required to repay a credit card debt if only minimum payments are made.

If the consumer makes only minimum payments for, 6 consecutive months, the amount of time and money required to repay the individual's specific credit card debt, under the terms of their credit card agreement.

The bill would also require that a toll-free number be included on statements, to allow consumers to call and speak to a live person to get an estimate of the time and money required to repay their balance if only minimum payments are made.

If the consumer makes only minimum payments for 6 consecutive months, they will receive a toll-free number for an accredited credit counseling service.

The disclosure requirements in this bill would only apply if the consumer has a minimum payment that is less than 10 percent of the debt on the credit card. Otherwise, none of these disclosures would be required on their statement.

Statistics vary about the number of individuals who make only the minimum payments. One study in 2004 determined that 35 million people pay only the minimum on their credit cards. In a 2005 poll, 40 percent of respondents said that they pay the minimum or slightly more.

What is certain is that many Americans pay only the minimum, and that paying only the minimum has harsh financial consequences.

I suspect that most people would be surprised to know how much interest can pile up when paying the minimum. Take the average household, with $9,500 of credit card debt, and the average credit card interest rate, which last week was 13.74 percent. If only the 2 percent minimum payment is made, it will take them 35 years and $21,799.07 to pay off the card.

That is if the family doesn't spend another cent on their credit cards--an unlikely assumption. In other words, the family will need to pay over $12,000 in interest to repay just $9,500 of principal.

For individuals or families with more than average debt, the pitfalls are even greater. $20,000 of credit card debt at the average 13.74 percent interest rate will take 42 years and more than $46,300 to pay off if only the minimum payments are made.

Mr. President, 13.74 percent is only the average rate. Interest rates around 20 percent are not uncommon. Penalty interest rates on credit cards average 27.3 percent, and seven major credit cards charge penalty rates of more than 30 percent.

Even if we assume only a 20 percent interest rate, a family that has the average debt of $9,500 at a 20 percent interest rate and makes the minimum payments will need an incredible 82 years and $55,084 to pay off that initial $9,500 of debt. That's $45,584 in interest payments-- an amount that approaches 5 times the original debt. These examples are far from extreme.

Last March, the Permanent Subcommittee on Investigations of the Committee on Homeland Security and Governmental Affairs heard testimony from Wesley Wannemacher, a consumer from Lima, OH.

Mr. Wannemacher charged $3,200 to a credit card in 2001 and 2002. He never charged anything on the card again, but he spent the next 6 years struggling to pay it off, as he experienced the kinds of events that American households routinely face--unexpected medical expenses, a growing family, and so on.

By early 2007 Mr. Wannemacher had paid $6,300 on the initial $3,200 in debt, but he still owed $4,400 on the card. Interest charges, late fees, and $1,500 in fees for going over the limit--even though the balance had only exceeded the limit three times--had resulted in total charges of $10,700 for that initial $3,200 in credit.

Fortunately for Mr. Wannemacher, his credit card company reviewed his account--after it became known that he was going to testify to Congress about his experience. The remaining balance on his account was forgiven.

Mr. President, testifying before a Senate committee is not something that Americans could--or should have to--do to escape from crushing credit card debt.

That is one of the reasons why it is so important for this Congress to pass the Credit Card Minimum Payment Notification Act.

There will always be people who cannot afford to pay more than their minimum payments. But there is also a large number of consumers who can afford to pay more but feel comfortable paying the minimum payment because they don't realize the consequences of doing so.

Now I am certainly not trying to demonize credit cards or the credit card industry. Credit cards are an important part of everyday life, and they help the economy operate more smoothly by giving consumers and merchants a reliable, convenient way to exchange funds.

However, I do think that people should understand the dangers of paying only their monthly minimums. In this way individuals will be able to act responsibly.

The bottom line is that for many consumers, the two percent minimum payment is a financial trap.

The Credit Card Minimum Payment Notification Act is designed to ensure that people are not caught in this trap through lack of information. The bill tracks the language of an amendment I cosponsored during the debate on the 2005 bankruptcy bill.

The language of this bill is based on a California law, the California Credit Card Payment Warning Act, passed in 2001. Unfortunately, in 2002, this California law was struck down in U.S. District Court as being preempted by the 1968 Truth in Lending Act.

The Truth in Lending Act was enacted in part because Congress found that, ``The informed use of credit results from an awareness of the cost thereof by consumers.''

This bill would amend the Truth in Lending Act, and would also further its core purpose.

These disclosures will allow consumers to know exactly what it means for them to carry a balance and only make minimum payments, so they can make informed decisions on credit card use and repayment.

The disclosure required by this bill is straightforward--how much it will cost to pay off the debt if only minimum payments are made, and how long it will take to do it. As for expense, my staff tells me that on the Web site Cardweb.com, there is a free interest calculator that does these calculations in under a second. Moreover, I am told that banks make these calculations internally to determine credit risk. The expense of making these disclosures would be minimal.

Percentage rates and balances are constantly changing, and each month, the credit card companies are able to assess the minimum payment, late fees, over-the-limit fees and finance charges for millions of accounts.

If the credit card companies can put in their bills what the minimum monthly payment is, they can certainly figure out how to disclose to their customers how much it might cost them if they stick to that minimum payment.

The credit card industry is the most profitable sector of banking, and in 2006 it made $36.8 billion in profits--an increase of nearly 80 percent from their profits in 2000. I don't think they will have any trouble implementing the requirements of this bill.

I believe that this legislation is extraordinarily important and that it will reduce bankruptcies. In the face of the subprime mortgage crisis, and as we appear to be heading toward a recession, this bill is needed now more than ever.

The harsh effects of the 2005 bankruptcy bill are starting to become apparent. I continue to believe that a bill requiring a limited but meaningful disclosure by credit card companies is a necessary accompaniment. I think you will see consumers acting more cautiously if these disclosures are made, and I believe that will be good for the bankruptcy courts in terms of reducing their caseloads, and also good for American consumers.

The credit card debt problem facing our Nation is significant. I believe that this bill is an important step in providing individuals with the information needed to act responsibly, and it does so with a minimal burden on the industry.

I urge my colleagues to support this legislation.

Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Madam President, I thank the Senator from Pennsylvania very much. It is very generous of him. My remarks are very brief and they are very personal.

Trent, I want you to know how much I have enjoyed working with you. I have enjoyed your friendship, I have enjoyed your sense of humor and, yes, I have even enjoyed your singing.

(Laughter.)

I have found you to be both forthright and truthful. I have found that when you give your word, you keep it. I tend to judge people on two bases: how they go through the tough times and whether I would want to be in a bunker with them in a real debate.

I watched you go through the tough times. I remember you showing me a picture of a chair that had gone a mile from the home that blew down in the hurricane. I remember your fight with the insurance company, and I can only say to that insurance company: Give up, you are going to lose.

I want you to know how much I treasure the relationship we have had. You have a great future. For you and your family, you are probably doing the right thing. For us, it is going to be a real loss. I want you to know how much I enjoyed the times we had socially, the seersucker caucus, seeing you turn up here in white bucks, all clean, spotless, a seersucker suit, a pink shirt, and a pink tie. No one in seersucker quite equals you, Trent Lott. For me, a westerner, to see a southerner at his peacock best was incredibly special.

I thank you for your contributions to the Senate. I thank you for your friendship. I wish you well, and may the wind always be at your back.

I yield the floor.

Indeed, Madam President, I am taken aback by the generosity of the Senator from Connecticut, and I want him to know I very much appreciate it.

I wish to make a few comments on this bill and then introduce two amendments. These two amendments are very important to me because without them I am going to have a great deal of trouble voting for the final product. I say that as a predicate.

First, the general comments.

On December 16, 2005, the New York Times introduced the world to a secret NSA surveillance program, later dubbed the ``terrorist surveillance program,'' or TSP as it came to be known. This program, ordered by the President after September 11, 2001, was conducted in violation of U.S. law.

I have served on the Intelligence Committee for more than 6 years now and on the Judiciary Committee for almost 15 years, and I can tell you that NSA signals intelligence is an indispensable tool on the war on terror. No one should think there aren't people who would do us harm. The only way to wage this war on terror is to find them before they find us. At the same time, it is crucial to remember the history.

FISA was first enacted in 1978 in the wake of major civil rights abuses of foreign intelligence. The White House had authorized surveillance on Americans because of their political views--Martin Luther King, Joan Baez, and many others--a massive drift net collection of communications of U.S. citizens into and out of the United States. FISA was enacted to ensure such abuses would not occur again, and it has, in fact, safeguarded Americans' privacy rights for the past 30 years.

FISA requires court review and approval when surveillance is targeting a person inside this country. No content can be collected on an individual unless there is a warrant by the FISA Court.

As has been pointed out many times, changes in telecommunications technology and a change in the nature of our enemies have made updates to the 1978 FISA law necessary. New legislation is, in fact, needed to redraw the lines detailing when and where surveillance can take place and when a court warrant is required. That is what this debate is about and that is what the cloture vote just began.

To be clear, these modifications should not come at the expense of civil liberties protections that are enshrined in our Constitution. Today, in my view, it is clear that the administration made a big mistake in not using FISA in the first place. I have consistently said that I thought the terrorist surveillance program could be done under FISA. A FISA Court judge proved this correct earlier this year. If changes to FISA were needed to accomplish this surveillance, the administration should have requested those changes when we reauthorized the PATRIOT Act.

But, instead, the White House and Department of Justice relied on a new and aggressive interpretation of the President's article II authority under the Constitution, and a flawed argument that the authorization to grant military force use provided a statutory exemption to FISA. That was a big mistake. It is clear to me from the Office of Legal Counsel opinions that individuals in the Justice Department did not feel bound by established U.S. law, but proceeded under a new and expanded view of Presidential authority to move forward with the program.

With this bill, we can turn the page on a sad portion of our Nation's history. Both the Intelligence and the Judiciary bills will keep the terrorist surveillance program under FISA, and it will restore protections for America's privacy rights in ways that the Protect America Act does not. Let me give a few examples.

No. 1, this bill categorically requires an individualized warrant any time surveillance targets someone inside the United States. So the argument about a great drift net being cast across the United States, picking up tens of thousands of America's phone calls, simply is not correct. Targets outside the United States would be subject to a program warrant where the FISA Court reviews the targeting, in what are called minimization procedures.

No. 2, the FISA Court review must be involved any time the intelligence community is conducting surveillance on an American anywhere in the world. By that I mean any time a American is collected for content anywhere in the world, that individual becomes a target. Until now, the Attorney General has authorized, under section 2.5 of Executive Order 12333, surveillance of Americans outside the country. There has been no FISA Court review in these cases.

The numbers of Americans targeted overseas were between 50 and 60 cases last year, according to the DNI--last year being 2006. So the numbers are small, and reports are made anonymous through minimization, and only included if they contained foreign intelligence value.

No. 3, the bill puts the FISA Court review upfront, where it belongs, rather than 4 months after collection has begun, as was done under the Protect America Act. In other words, upfront the FISA Court reviews the minimization and approves that minimization, and can say to the Department: We want you to come back in 6 months or 8 months or 3 months, and we will take another look at it.

No. 4, procedures known as ``minimization'' are clearly defined and applied. This has been a hallmark of FISA for 30 years, but was not included in the Protect America Act. Once again, minimization is the process that the intelligence community has used since 1978 to protect information concerning Americans. When the NSA collects the content of communications, it does so to write intelligence reports. Minimization states that information without a foreign intelligence purpose is not used, and it cannot be retained indefinitely. It must be discarded at some point.

Intelligence reports that use information about an American are made anonymous, to protect that person's privacy rights. The bill requires that the minimization procedures used in each program be approved by the court upfront, so they go to the court first and they say this is what we want to do and these are the procedures we will use, and the court can affirm it or deny it. But it goes before a court.

If the amendments are adopted, the court will have the power to review how the minimization is being applied as well, so they will have constant review of the process.

No. 5, oversight mechanisms are stronger in this legislation. Reviews are required by inspectors general, agency heads, the FISA Court, and the Congress on how the surveillance authority is being used.

I wish to speak for a moment on the subject of telecom liability and then on exclusivity. If I might, I wish to do the exclusivity first.

On behalf of myself, Senator Rockefeller, Senator Leahy, and Senator Nelson, I send an amendment to the desk.

Madam President, this bill does not include language I authored to strengthen the exclusivity provisions of FISA. It has been reviewed by the chairman of the Intelligence Committee, the chairman of the Judiciary Committee, and they are both cosponsors, as well as an additional cosponsor in Senator Bill Nelson of Florida, who is also a member of the Intelligence Committee. Basically, what this amendment does is strengthen FISA as the only and exclusive authority for gathering intelligence through electronic surveillance. It specifically closes the AUMF loophole I mentioned earlier, whereby the administration contends it does not need FISA approval.

Second, it provides that only another statute, specific statute can constitute an additional exclusive means of electronic surveillance.

Third, it strengthens the requirements for certifications. The administration must identify the specific provision of the law on which the certification is based.

The exclusivity amendment I have submitted is intended to reinforce the legislative intent of the bill. In 1978, when the bill was passed, the court was to be absolute when conducting electronic surveillance against Americans

for foreign intelligence purposes. Unfortunately, despite the 1978 language, the Bush administration decided it could go outside the law. That was both wrong and unnecessary.

To make matters worse, the administration made up an argument that Congress had authorized it to go around FISA by some passing the authorization for use of military force against al-Qaida and the Taliban. Does anyone here actually believe that? I do not know one Member of Congress who has stated publicly that they believed they were authorizing the terrorist surveillance program when they voted to go to war against bin Laden. In fact, to the contrary, it was never considered and to the best of my knowledge it was never thought of. When the Department of Justice came to the Congress in September 2001, outlining the changes it needed in FISA to wage this war, it did not mention anything about surveillance efforts such as those the TSP program addressed.

Congressional intent from 1978 is clear. Congress clearly intended for FISA to be the exclusive authority under which the executive branch may conduct electronic surveillance. Let me briefly review the history, because it is important.

Congress wrote, in 1978, in report language accompanying FISA:

Despite any inherent power by the President to authorize

warrantless electronic surveillance in the absence of

legislation, by this bill and chapter 119 of title 18,

Congress will have legislated with regard to electronic

surveillance in the United States, that legislation, with its

procedures and safeguards prohibit the President,

notwithstanding any inherent powers, notwithstanding any

inherent powers--

Which means AUMF, article II of the Constitution

--from violating the terms of that legislation.

That is a quote. The legislative history continues by describing the Supreme Court's decision in the Keith case, in which the Court ruled at that time Congress hadn't ruled in this field, and simply left the Presidential powers where it found them.

But at this point the legislative history turns. The 1978 language responded to the Keith case and said this:

The Foreign Intelligence Surveillance Act, however, does

not simply leave Presidential powers where it finds them. To

the contrary, this bill would substitute a clear legislative

authorization pursuant to statutory, not constitutional,

standards.

I want the record to show here the clear understanding in 1978 that FISA was the exclusive authority. That was the report language accompanying H.R. 7138 as it passed the 95th Congress.

President Carter signed the bill. His signing statement said this:

This bill requires, for the first time, a prior judicial

warrant from all electronic surveillance for foreign

intelligence or counterintelligence purposes in the United

States in which communications of U.S. persons might be

intercepted.

That is pretty clear, on the part of the President who signed the bill, and the House and the Senate that passed that bill, what the intention was.

The Intelligence Committee bill before us reiterates the 1978 exclusivity language, but I believe this needs to be strengthened in light of the article II and the AUMF arguments that this administration has been making. I am going to introduce this amendment at this time.

This language closes loopholes that this Department of Justice squeezed through, to claim that the AUMF was an authorized exception to the FISA. It clearly was not. The amendment does this by tightening language in FISA, and in title 18 of the criminal code, making clear that future Presidents should not try to read between the lines in future legislation for authorization to go outside of the Foreign Intelligence Surveillance Act.

It also provides more specificity in what must be included in written requests or directives to telecommunications authorities for them to legally provide assistance. It is clear from the recent history that this is necessary. In fact, the whole issue of whether telecom immunity is needed is because past certifications have not been clear.

I couldn't support a bill that did not clearly reestablish the primacy of FISA. I tried to do it in committee. I thought it was done in committee. It was not included in the base bill. The Republican side would not go along with it. I once again submit it. To me it is vital, and my vote on the bill was, at least 50 percent, based on this exclusivity provision.

Now, if I may, may I mention telecom immunity and submit an amendment? I voted for telecom immunity in the committee. I am not inclined to vote for it, to be candid with you, unless this amendment is adopted. So let me begin by talking about the immunity provision of the bill. It is not as expansive as some would make it sound. The language would only cover cases where the Attorney General certifies that the defendant companies received written requests or directives from top levels of the Government for their assistance.

In other words, the Government, in writing, I stress in writing, assured those companies that the program was legal, the President had authorized the program, and that its legality has been approved by the Attorney General.

The legislation does not provide immunity for criminal wrongdoing, nor does the legislation provide liability relief for any Government official such as that the Director of National Intelligence had requested in April. No individual immunity of anyone in the government is included in this bill.

There are approximately 40 cases pending in the Ninth Circuit. The companies in these cases are prevented from making their own defense. I do not know if Members understand the full importance of this. They are prevented from responding to inaccurate news articles, inaccurate press releases, they cannot come before the Congress and testify in public, they cannot respond to anything that is said in the public sector, and they are prevented from defending themselves in court.

These defendants have to sit by and listen to what they consider to be misrepresentations, and they cannot respond to these misrepresentations. So, in effect, they are handcuffed and gagged by the administration's claim of state secrets. This is a matter of fairness. These companies have no financial motives in providing assistance to the Government. In fact, they incurred a substantial risk in doing so. They were given written requests, legal assurances in the weeks after September 11. The letters went out within 5 weeks of September 11, when we all feared this Nation might suffer additional attacks.

In fact, evidence has come to light to indicate the second wave of attacks involving the West Coast was being planned. It was this administration, not the companies, that made a flawed legal determination. It was this administration that withheld its activities from the Congress for 4 long years. It was this administration that decided not to go to the FISA Court. They could have gone to the FISA Court. They could have asked for a program warrant, which they subsequently got.

They could have put this program under FISA coverage, which it now is, which they did not at the time.

It has been pointed out that there is a longstanding common law provision that allows citizens to rely on the assumption that the Government acted legally when it asks a private citizen or a company to assist it for the common good. All that is required is that the citizen act in good faith.

So the question is whether the small number of people, and it was a small number of people, who were actually cleared in a classified sense, to deal with this, of these companies, were acting in good faith and whether it was reasonable for them to determine that the assistance, in fact, it provided was legal.

A small number of telecom officials were acting under the cloak of secrecy and a directive not to disclose the Government's request. They are not experts on article II of the Constitution. The amendment I am going to submit would put before the FISA Court the question of whether the telecommunications companies should, in fact, receive immunity based on the law.

The FISA Court would be required to act, en banc, and how this is, is 15 judges, Federal judges, appointed by the Chief Justice, they sit 24/ 7, and this is all they do, they would act en banc. They would look at the following: Did the letters sent to the carriers which were repeated virtually every 35 to 45 days over the last 4 to 5 years, did the letters sent to the carriers meet the conditions of law.

Section 2511 of title 18 clearly states that a certification from the Government is required in cases where there is no court order. That is the only two ways that FISA allows this to proceed, by written certification or by court order.

The Government has to certify in writing that all statutory requirements for the company's assistance have been met. So the FISA Court would first look at whether the letter sent to the companies met the terms of this law. The court would then look at, if the companies provided assistance, was it done in good faith and pursuant to a belief that the compliance was legal.

Finally, the FISA Court would ask: Did the defendants actually provide assistance? If the FISA Court finds that defendant did not provide any assistance to the Government or that the assistance either met the legal requirements of the law or was reasonably and in good faith, the immunity provision would apply.

If the FISA Court finds that none of these requirements were met, immunity would not apply to the defendant companies. I think the merit of this approach is it preserves judicial review, the method we look at in order to decide questions of legality.

Now, the bulk of the Members of this body, probably 90 percent of them, have not been able to see the written certification, so you do not know what was there. What we ask in this amendment is: FISA Court, you take a look at these letters, and you make a ruling as to whether they essentially meet the certification requirements of the FISA law.

Therefore, there is judicial review to determine whether, under existing law, this immunity should be forthcoming. It is a narrowing of the immunity provisions of the Intelligence bill. I think it makes sense. I read the letters. I am a layperson, I am not a lawyer. I cannot say whether they met the immunity provisions. Others can say that.

But it should be up to a court to make that decision. It seems to me that if the FISA Court finds that none of these requirements were met, immunity would not apply to the defendant companies.

The FISA Court of Review stated in 2002 that the President has article II authorities to conduct surveillance. The article II authority is the big rub in all this. The collection under this program was directed overwhelmingly at foreign targets.

But no court has addressed this issue since FISA was enacted in 1978. And, candidly, I think the time has come to see whether the President's article II authority--and the FISA Court would be the first judge of this--in fact, supersedes the article II authority based on the reading that I had given you of FISA Court passage in 1978.

So essentially that is the amendment I would like to send to the desk at this time which narrows the immunity provision of the FISA law. I thank the clerk for receiving the amendment.

In sum, I have tried to pay a great deal of attention to this. I tried to do my due diligence, both as a member of the Judiciary Committee and the Intelligence Committee. I truly do believe electronic surveillance is vital in the war against terror.

I believe it is the most likely way we learn what is being planned for the future and have an opportunity to prevent it from happening. I truly believe there are people who would do this Nation grievous injury and harm if they are given the opportunity to do it, and I think the telecom communities did depend on the good faith of the head of the National Security Agency and the Attorney General and the requests from the highest levels of Government.

The question is, Did they comply with the law? And so the amendment I have suggested would give the FISA Court the opportunity to make a ruling as to whether, in fact, they did comply with the law.

The second amendment would strengthen the exclusivity provisions of the FISA law so we never again, hopefully, will find ourselves in the same situation.

I look for a vote on both those amendments, and I thank the Chairman of the Intelligence Committee, the Judiciary Committee and Senator Nelson for supporting my amendment on exclusivity.

I ask unanimous consent that Senator Nelson of Florida be added as a cosponsor of the FISA Court evaluation on the immunity question amendment.

The PRESIDING OFFICER (Mr. Webb.) Without objection, it is so ordered.

I thank the Senator from Connecticut for yielding to me.

The understanding of my colleague from Connecticut, Senator Lieberman, is correct. The finality provisions in this legislation were intended to give the Chief of the U.S. Capitol Police authority to transfer employees and assign duties as necessary to meet the mission of the U.S. Capitol Police in maintaining the security of the Capitol complex. However, the provisions in this legislation in no way limit the protections and rights of an employee to seek relief under the Congressional Accountability Act.

Mr. President, I am pleased that the Senate overwhelmingly passed the Federal Housing Administration, FHA, Modernization Act today. This bill would make much-needed improvements to this important program to give more homebuyers the option to get a FHA government-backed loan instead of the more risky products that have contributed to the current mortgage crisis.

The FHA program is critical to insuring home mortgages for low and middle income borrowers that are unable to obtain financing from conventional mortgage lenders. However, over the past decade, FHA has been priced out of the market.

In California alone, FHA loans have dropped from 109,074 in 2000 to just 2,599 in 2006--resulting in a decline of 98 percent in 6 years.

Furthermore, the current crisis in the subprime lending market has put more than 500,000 American homeowners into foreclosure this year.

My State of California has been especially hit hard.

More than 50,000 California homes went into foreclosure in just the month of October. This equates to one foreclosure filing for every 258 households in the state--about double the national foreclosure rate.

The bill passed by the Senate today takes an important step to help American families who face the threat of losing their homes and those who want to buy a new home with a safe and affordable mortgage--it modernizes the FHA program and expands the financing options available to homebuyers.

Specifically, this bill would:

Increase the maximum size of mortgages that FHA can insure in expensive housing areas to $417,000 from the current level of $362,790.

This increase in the loan limit is a step in the right direction, but more needs to be done. It is my hope that the final bill signed by the President further increases the loan limit to over $500,000, as included in the House-passed version of the FHA bill.

This is essential so that more homebuyers in states like California, where the average cost of a home is over $490,000, can be helped.

Reduce the downpayment requirement to 1.5 percent from the current requirement of 3 percent under the FHA program--allowing FHA to compete with subprime lenders.

Require the secretary of the Housing and Urban Development, HUD, and the FHA Commissioner to work with the mortgage industry and non-profit organizations to improve the FHA loss mitigation process so more troubled homeowners can keep their homes.

Increase consumer protections by requiring the secretary of HUD to prohibit unfair or deceptive practices that may be used with FHA- insured manufactured housing loans.

Improve housing counseling assistance by creating a pre-purchase counseling pilot program to test the effectiveness of various counseling options.

It also expands the eligibility for post-purchase counseling for low and moderate income homeowners who are having trouble making their mortgage payments.

It is crucial that we help make homeownership more affordable and accessible to American families and provide relief to those facing the threat of losing their homes.

The Senate's approval of this legislation today is an important step to help achieve this.

Thank you very much.

Mr. President, I yield the floor.

I yield the floor.

Mr. President, I rise today to speak about agricultural inspection at the Department of Homeland Security.

I believe there is a serious problem with agriculture inspections at the Department of Homeland Security.

The causes are many. The stakes are high. The impact is potentially devastating.

Here are the facts--documented in a 2006 GAO report, a 2007 Congressional Research Service memorandum, and a 2007 report prepared for the House Committee on Agriculture.

Agriculture inspection at several key American points of entry has significantly decreased. Inspections decreased in Miami by 12.7 percent, in Boston by 17.9 percent, and San Francisco by 21.4 percent; the number of quarantine significant pest interceptions has declined by 31 percent since its high of nearly 74,000 in 2002; 22 percent of agricultural specialists' time is spent on duties other than agriculture inspection; and agriculture inspection at DHS is subordinate to the Department's other priorities for drug and weapons enforcement.

As the senior Senator from California, the largest agriculture State in the Nation--a $32 billion industry--I cannot stand by while three infestations of Medfly have occurred in my State just this year.

And other States have similar problems. Florida has seen a 29-percent increase in pest outbreaks over the last 4 years.

It was my intention to offer an amendment to move the agriculture inspection function back to the USDA--and I want to thank my lead cosponsors on this amendment, Senator Martinez and Senator Casey.

However, I recognize there is strong objection to considering my amendment in the Senate.

I have had multiple discussions with Secretary Chertoff on this issue, and he has agreed to take action to improve agriculture inspection.

Specifically, he has agreed to create a new Deputy Executive Director for Agriculture Operational Oversight that is responsible for: managing the joint Customs and Border Protection and USDA Agriculture Quality Assurance program; monitoring agricultural inspection performance for risk and efficiency; securing appropriate staffing and budget allocation for agriculture inspection; ensuring that all directives and policies specific to the agricultural programs are executed in compliance with the agriculture mission; and ensuring there is open dialogue with State and Federal counterparts to assure agricultural inspection activities are being properly handled at ports of entry.

Additionally, he has assured me that the agriculture inspectors' time will no longer be used for anything other than agriculture inspection.

So in light of those commitments, I have agreed to defer the amendment.

I will ask unanimous consent to have printed in the Record the December 13 letter from Secretary Chertoff, and the accompanying two documents, which are copies of the two memoranda from the U.S. Customs and Border Protection, establishing the actions to which we have agreed.

But I will watch carefully to see that what the Secretary has agreed to is implemented in the Department.

I want to thank the California Farm Bureau, the American Farm Bureau, the State Departments of Agriculture and their association, the Specialty Crop Farm Bill Alliance, and the many farm organizations that supported this amendment.

I ask unanimous consent to have printed in the Record the documents to which I have referred and the list of these organizations that wrote in support.

Yes, of course, we have worked hard to come together on this legislation directing NHTSA to issue new fuel economy regulations to reach an industry fleet wide level of 35 miles per gallon by 2020, and it is our intent in the bill before us that all Federal regulations in this area be consistent with our 35 miles per gallon in 2020 language.

I would like to thank the chairman of the Commerce Committee, and I would like to clarify what I believe to be the intent of the legislation I sponsored to increase fuel economy standards in the United States.

The legislation increasing the fuel economy standards of vehicles by 10 miles per gallon over 10 years does not impact the authority to regulate tailpipe emissions of the EPA, California, or other States, under the Clean Air Act.

The intent was to give NHTSA the ability to regulate fuel efficiency standards of vehicles, and increase the fleetwide average to at least 35 miles per gallon by 2020.

There was no intent in any way, shape, or form to negatively affect, or otherwise restrain, California or any other State's existing or future tailpipe emissions laws, or any future EPA authority on tailpipe emissions.

The two issues are separate and distinct.

As the Supreme Court correctly observed in Massachusetts v. EPA, the fact ``that DOT sets mileage standards in no way licenses EPA to shirk its environmental responsibilities. EPA has been charged with protecting the public's health and welfare, a statutory obligation wholly independent of DOT's mandate to promote energy efficiency. The two obligations may overlap, but there is no reason to think the two agencies cannot both administer their obligations and yet avoid inconsistency.''

I agree with the Supreme Court's view of consistency. There is no reason to think the two agencies cannot both administer their obligations and yet avoid inconsistency.

The U.S. District Court for the Eastern District of California in Central Valley Chrysler-Jeep v. Goldstone has reiterated this point in finding that if approved by EPA, California's standards are not preempted by the Energy Policy Conservation Act.

Title I of the Energy Security and Independence Act of 2007, H.R. 6, provides clear direction to the Department of Transportation, in consultation with the Department of Energy and the Environmental Protection Agency, to raise fuel economy standards.

By taking this action, Congress is continuing DOT's existing authority to set vehicle fuel economy standards. Importantly, the separate authority and responsibility of the U.S. Environmental Protection Agency to regulate vehicle greenhouse gas emissions under the Clean Air Act is in no manner affected by this legislation as plainly provided for in section 3 of the bill addressing the relationship of H.R. 6 to other laws.

I fought for section 3. I have resisted all efforts to add legislative language requiring ``harmonization'' of these EPA and NHTSA standards. This language could have required that EPA standards adopted under section 202 of the Clean Air Act reduce only the air pollution emissions that would already result from NHTSA fuel economy standards, effectively making the NHTSA fuel economy standards a national ceiling for the reduction of pollution. Our legislation does not establish a NHTSA ceiling. It does not mention the Clean Air Act, so we certainly do not intend to strip EPA of its wholly separate mandate to protect the public health and welfare from air pollution.

To be clear, Federal standards can avoid inconsistency according to the Supreme Court, while still fulfilling their separate mandates.

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