Floor Statements

Mr. President, I am proud to join my friend Senator Snowe and our colleagues Senator Pryor, Senator Collins, and Senator Kerry in introducing the Green Chemistry Research and Development Act. This legislation is a bipartisan effort to promote the efforts of some of the most brilliant minds in academia, government, and industry to both reduce the environmental impacts of common chemical processes and to foster the development of a new generation of environmentally responsible chemical products.

My fellow cosponsors and I seek to help the chemical industry reduce its use and production of hazardous substances and the overall effect on the environment of the business of chemistry. As it was in the past when Senator Snowe and I previously introduced legislation to promote ``Green Chemistry,'' this legislation is supported by the chemical, pharmaceutical, and biotechnology industries and academic institutions because it is designed to hasten the attainment of a goal we all share: making the production of the chemical products we need in ways not detrimental to the environment using engineering processes that save both money and the planet. The products and engineering processes we believe will be developed will produce benefits across the entire economy.

What we call ``green chemistry'' is nothing more than what every industry in the United States should strive to be. Chemical companies employing green chemistry techniques will challenge their best scientists, engineers, and product developers to make new products that are better suited to the task for which they are created than the products they will replace using state-of-the-art manufacturing that minimizes or completely eliminates both the use of environmentally unsustainable substances as inputs or results in environmentally unsustainable substances as byproducts. Our purpose in introducing this legislation is to make certain that the nascent green technology revolution does not bypass the chemical industry by providing significant and ongoing support for green chemistry research, development, demonstration, education, and technology transfer.

When enacted, the Green Chemistry Research and Development Act will create a Federal Interagency Working Group--made up of representatives from the National Science Foundation, the National Institute of Standards and Technology, the Department of Energy, and the Environmental Protection Agency--to fund and oversee research through merit-based grants to universities, industry, and nonprofit organizations to promote the development and adoption of green chemistry processes and products. Further, the Interagency Working Group will help expand education, training in, and the flow of information about sustainable chemical engineering, including development of green chemistry curricula for undergraduate and graduate students. Finally, Federal resources in funding and technical expertise will seek to identify barriers to the commercialization of the products of a rejuvenated, more environmentally responsible domestic chemical industry.

These are challenging times for the domestic chemical industry. High

prices for necessary feedstocks and transportation to customers, along with all the other hurdles that must be overcome in the global economy, have put this industry, which began here and which supplied vital products to customers the world over, at risk of being another industry the United States could lose to our foreign trading competitors. However, this industry meets challenges every day. This legislation will allow American chemical companies to once again demonstrate a passion for excellence, safety, and innovation that will be a source of envy around the world and create a generation's worth of good-paying jobs that States like West Virginia can build an economy around.

Mr. President, I call on my colleagues to take up and pass the Green Chemistry Research and Development Act.

Mr. President, my name has been invoked frequently here over the last several weeks as passing a bill which was not favored by the majority of the people of my aisle, and the phrase actually was used by the majority leader, who is never wrong, that we did what the President wanted.

I didn't do what the President wanted. I did what I thought was the right thing to do. I was joined by a variety of my colleagues, including the Presiding Officer, who reserved the right to have other views on the floor, which he did, but ended up voting for the bill.

What absolutely baffles me is that we are literally--we can do this FISA bill. I am meeting tomorrow morning with the chairman of the House Intelligence Committee, who may be the only House member in town--I have no idea, but I don't care because he is the chairman--on what we can do to save this. I am absolutely convinced that we can have--in the hearing this afternoon, the Presiding Officer heard me put this to the Director of National Intelligence, who couldn't answer it because it was not a policy question, but more of a political question. I said: You are going to get the majority of your information all the way through August. The President praised our bill and then came out the next day and said: Of course, if the House doesn't pass it, we are going to lose our intelligence and we will be vulnerable to the terrorists. That was a misstatement, I think an annoying misstatement.

I don't understand. I simply don't understand, if something is good and if the President is willing to sign a bill which this Senator in his conscience feels is right, and it takes 15 days to do it, what the minority leader needs to understand--and he served in the House. I am sure he understands that they have now been jammed twice. They have been jammed. There is something called human nature, and it is not illegal to talk about human nature on the floor of the Senate. They have been jammed. They have been

pushed down to a 2-day period or a 3-day period when they had to make a decision. They resent that. But if they were given a period of time, they would come, in my judgment, to where we are, and the bill would go to the President and he would sign it.

Now, let me say something more. What people have to understand around here is that the quality of the intelligence we are going to be receiving is going to be degraded. It is going to be degraded. It is already going to be degraded as telecommunications companies lose interest. Everybody tosses that around and says: Well, what do you mean? I say: Well, what are they making out of this? What is the big payoff for the telephone companies? They get paid a lot of money? No. They get paid nothing. What do they get for this? They get $40 billion worth of suits, grief, trashing, but they do it. But they don't have to do it, because they do have shareholders to respond to, to answer to. There is going to be a degrading of the nature of our intelligence in some very crucial areas if we follow the path that the minority leader is suggesting, because we will go right back to where we were last August, and that will be a further jolt to the telecommunications companies, because they will understand that you cannot count on the Congress, you cannot count on us to make policy which will give stability to their--not government agencies but to their corporations.

Fifteen days. We are off for a week, so maybe it has to be 25 days. I don't know. I don't care about that. We could have the same bill on this floor from the House. I am convinced of it. It is human nature. Give them a chance to have a grudge. I am going to meet with the chairman tomorrow. Let him rip into me for not giving the House an adequate chance for the second time to discuss this matter. But I am absolutely convinced that we could have that bill on the floor in this body and pass it and send it to the President. Why they don't want to do that, I do not know.

I yield the floor.

Mr. President, action on the fiscal year 2008 authorization bill for intelligence is so long overdue I do not even know how to explain it. It is over 2 years overdue. It is a very important bill.

Beginning in 1978, after the two congressional intelligence committees were established, the Congress passed an annual intelligence authorization bill every year. It does not sound interesting, but it has a great deal to do with how the intelligence community operates. We passed it for 27 consecutive years. And there was no exception to that. This legislation was one of very few nonappropriations measures that Congress has always considered ``must pass.'' Yet we have failed to pass it for the last number of years, and it is a matter of consternation.

The importance of our intelligence programs to our national security has always been very obvious. The importance of strong congressional oversight of the intelligence activities has been equally obvious; although it has been spottier in the recent past, it no longer is.

Then in 2005 and 2006, the bills reported out of the Senate Intelligence Committee were never brought to the Senate for consideration. There were internal reasons for that. I will spare the Presiding Officer from a discussion of those matters, and it is no longer important why.

But we have to do this bill. The intelligence authorization bill is the tool the Congress uses to provide direction, specific direction, and to enforce the oversight that we do. It involves many of the most sensitive national security programs conducted by the U.S. Government.

The 2008 authorization bill includes provisions to improve the efficiency of the intelligence community. It is a bland statement, but it is a very important series of parts. The bill produces better intelligence. We provided flexibility and authority to the DNI. We gave him a tremendous responsibility and then did not give him enough flexibility to exercise that responsibility. We do that in this bill.

We require much greater accountability from the intelligence community. That is oversight. We require greater accountability from the intelligence community and its managers. We improve the mechanisms for conducting oversight of intelligence programs and we reform intelligence program acquisition procedures. All of that is oversight.

Many of the provisions were included at the request of the National Intelligence Director in this bill. I always believe in reaching out to the professionals in doing this.

The creation of the DNI position was the result of the most significant reform of the intelligence community in 50 years. And the current DNI, ADM

Mike McConnell, is absolutely superb. The Office of Director of National Intelligence has now existed for 2\1/2\ years, and we have begun identifying ways to help the DNI better coordinate the 16 elements of the intelligence community, which are scattered around the Government, some of which do a very good job and some of which do not. Now he is pulling all of this together and he is doing a good job.

Starting with personnel authority, this bill uses a much more flexible approach to authorizing personnel levels. Those are very delicate. We also give the DNI the ability to exceed personnel ceilings by as much as 3 percent because he needs to have that. He is in the process of trying to figure out how to adjust all of this and work it right. He needs flexibility. It also provides additional flexibility to encourage the DNI to convert contractor positions to Government employees when appropriate.

Every Member knows the real power is the power of the purse. It is the same with the DNI. And this bill changes reprogramming requirements to make it easier to address, as they say, emerging needs in critical situations, a crisis. We give him the financial flexibility to do that. He needs that flexibility, and he now will have it if we pass this bill.

It authorizes the DNI to use interagency funding amongst his various agencies that he oversees to establish national intelligence centers if he so chooses. The bill also allows the DNI to fund information-sharing efforts across the intelligence community. That was the whole point of the 9/11 Commission. That is the whole point of reducing stovepipes.

Finally, it repeals several unneeded and burdensome reporting requirements. Frankly, we can use up a lot of people's time on something that we no longer need. We reduce some reporting requirements without in any way compromising accountability because oversight is the whole point of this bill.

As it increases the authority of the DNI, the bill also improves oversight of the intelligence community in other ways. The bill creates a strong independent inspector general in the office of the DNI. It has to be confirmed by the Senate. That is called oversight. Confirmed by the Senate. That means it has to report to the committee. Accountable to the committee. It has to tell us the truth. Confirmation allows inspectors general to do very difficult things within their own departments that maybe some of the leaders will not do.

It establishes statutory inspectors general in the National Security Agency, the NRO, the NGA and the Defense Intelligence Agency. So these are all there. They are all accountable. They are all oversight tools that we want.

The bill also gives the Congress more oversight of the major intelligence agencies by requiring Senate confirmation of the Directors of NSA and NRO. Right now we do not have to confirm them. If we do not confirm, that means they do not have the same relationship with the Senate. We confirm the CIA, but we do not confirm the NSA.

You tell me, particularly after we passed the FISA bill yesterday, how is it possible that we would not be able to confirm the head of the National Security Agency as well under this bill? We can, which makes him accountable to us, which means he reports to us, which means we can do oversight over him much more aggressively.

As we describe in our conference report:

. . . of the need for NSA's authorized collection to be

consistent with the protection of the civil liberties and

private interests of U.S. persons.

Through confirmation of the NSA Director, we can ensure that continues or starts to be so.

As we increase the DNI's flexibility to manage personnel, we require an annual assessment. That sounds boring, but, no, it is not. It is very important--an annual assessment of personnel levels across the intelligence community: How are they distributed? Are they in the right place? Are people protecting their turf? The DNI is in charge of this. We want to give him all the support, and we want this all reported to us in our committee so we can watch it.

We also required the inclusion of a statement that those levels are supported by adequate infrastructure, training, funding, and a review of the appropriate use of contractors, which has become a very interesting subject in these months and years.

This bill also addresses an issue that has concerned the committee for a long time, the lack of accountability for failures and programmatic blunders. That is called oversight.

We want accountability. We want it in front of us. We want our hands on it. The bill gives the DNI the authority to conduct accountability reviews across the intelligence community if he deems it necessary or if we request it in our committee. It is called oversight.

This also improves financial management by requiring a variety of actions related to the production of auditable financial statements. That sounds pretty boring, but, no, it is not. When you get into the intelligence community, when you get to classified numbers, things of that sort, it is very important to have someone watching. That is oversight. We will have that if this bill passes.

The final major theme in the bill is the reform of the acquisition process. The bill requires a vulnerability assessment of all major acquisition programs. Well, acquisition is a very large word in intelligence and a very expensive word. We have made some very big mistakes, we have not been able to correct them.

But that is a discussion for another day. So we have a classified annex. Any Senator who wants to look at what is behind all of those numbers can do that very easily.

I have other things I wish to talk about, particularly the Army Field Manual. But I have a whole different speech awaiting my colleagues on that later in the day.

Mr. President, I yield the floor.

Mr. President, I almost have no words to praise the Senator from Rhode Island for the eloquence and strength of his speech, which was not only grounded in very deep substance but was delivered with elegiac nature that both culled the human spirit as well as grounded the futility of torture. I congratulate him.

I also rise strongly in support of section 327 of the intelligence authorization conference report. I recognize it will be controversial. I don't care. It is important that some background on this section be provided. Some of it has been this morning. During the conference on the authorization bill, the conferees adopted an amendment that would require the intelligence community to conduct its interrogation in accordance with the terms of the U.S. Army Field Manual. The full membership of the House Intelligence Committee and the Senate Intelligence Committee served on the conference committee. So it was a majority of those two committees that came to that conclusion.

Section 327 of the intelligence authorization conference report directly parallels the provision in the Detainee Treatment Act that forbids subjecting anyone in Department of Defense custody to any treatment or technique of interrogation not authorized by and listed in the U.S. Army Field Manual on intelligence interrogation. Section 327 applies these same restrictions to the intelligence community at large.

The effect of section 327 is, therefore, to require all of the U.S. Government operate their interrogation programs under a single interrogation standard, the standard set by the U.S. military. Adopting the military standard for interrogation as the universal standard makes sense, and I hope some of my colleagues are listening. It is the members of the military who most benefit from reciprocal obligations of the Geneva Convention requiring humane treatment of prisoners and who are most likely to be subjected to retaliation based on the failure of the United States to follow those obligations. That statement is frequently made, and then it is frequently absorbed and discarded. Think about it. Retaliation is the way of the world, and it will be no different here. What we do to others, they will do to us.

The U.S. Army Field Manual on interrogation was revised in September 2006 after significant interagency review. This included a review by the Central Intelligence Agency. By providing a number of approach strategies such as the incentive approach, emotional approach, and the Mutt-and-Jeff approach, the Army Field Manual gives interrogators significant flexibility to shape the interrogation. It doesn't delineate exactly how. It gives them a lot of flexibility.

The Army Field Manual also explicitly prohibits, as we know, waterboarding, forcing detainees to be naked, inducing hypothermia or heat injury or subjecting a detainee to beatings, as well as a number of other things. All this raises the question at the heart of this debate: Should the Central Intelligence Agency, the well-known CIA, be allowed to use coercive interrogation techniques to obtain information from al-Qaida detainees?

This debate is about more than legality. It is about more than ensuring

that the intelligence community has the tools it needs to protect us. It is also about morality, the way we see ourselves, who we are, who we want to be as a nation, and what we represent to the world. What we represent to the world has a direct effect on the number of people who determine they want to join the jihadists movement and come after us.

It is a decision that can and should be left to Members of Congress who are the representatives of the American people. In the early period of the CIA program's existence, I repeatedly called--and I am extremely frustrated by this, extremely frustrated--for an Intelligence Committee investigation into the Agency's detention interrogation practices.

That was in the committee. I was, at that point, vice chairman and could not control, obviously, the vote. So on vote margins of one, we lost. We could not get anything going in the way of studying the subject and investigation of the subject. Then I moved to the floor and once again could not get the committee to investigate the subject. I also tried to have the CIA brief all the members of the committee on the interrogation program. That also did not happen.

I recognized that assessing the need for the CIA's enhanced interrogation techniques, the intelligence obtained from detainees, and the importance of maintaining America's position in the world were issues that we in Congress needed to debate and discuss, and, unfortunately, we did not.

About a year and a half ago, the full membership of the Intelligence Committee was finally provided information about CIA's interrogation program. It is the whole point of oversight. They are not accustomed to us doing that--not just the CIA, but the intelligence community--having representatives of the people asking questions. They think it is an elite field for them. They are proud of their traditions. They fight among themselves, and they do not build into their thinking what it is that the Congress might feel about this.

About a year and a half ago, as I say, we were brought into their interrogation program. Since that time, our committee has held multiple hearings on that subject. We have done our best to learn as much as possible about the basis for and the consequences of CIA's program, as well as interrogation in more general terms.

These briefings and hearings have led the committee to conclude that all agencies of the U.S. Government should be required to comply with a single standard for interrogation of detainees. The Army Field Manual provides a standard of humane treatment that indisputably complies with our international obligations under the Geneva Conventions, as well as with U.S. laws.

The CIA has briefed the committee on several occasions about its interrogation of al-Qaida detainees. The CIA has described the basis for the program, and why they think it should be allowed to continue.

Although the CIA has described the information obtained from its program, I have heard nothing--nothing--that leads me to believe that information obtained from interrogation using coercive interrogation techniques has prevented an imminent terrorist attack.

This is true for a very simple reason. Once a terrorist is captured, his fellow plotters, understandably, change their plans. In other words, I do not believe the CIA has ever been in an actual ``ticking timebomb'' scenario, nor do I think it is ever likely to be placed in that situation. That does not mean the information obtained from the program has not been valuable. Of course information about al-Qaida is exceedingly valuable from an intelligence standpoint. It is bits and pieces of information that allow our intelligence professionals to assess al-Qaida's capabilities and to determine how best to protect ourselves as a nation. But, more to the point, I have not heard nor have I seen any evidence that supports the intelligence community's claim that using enhanced interrogation techniques is the only way to obtain this type of intelligence; that is, to get what they need to get.

After 9/11, the intelligence community decided that coercive interrogation tactics were the best way to obtain intelligence. It was perhaps a little bit understandable then in terms of the general panic of the Nation. But the intelligence community--I say this gravely--did not take the time to research what interrogation techniques might be most effective to come to this conclusion, nor did they reach out to the interrogators with experience, particularly those questioning Islamic terrorists. They did not do that. They were going to do it their way. They simply assumed--and they simply still assume--that coercive interrogation techniques were the best way to obtain information.

To this Senator, this was clearly a flawed approach. But at this point, the administration is so invested in the use of these techniques they can no longer psychologically or otherwise step back to assess what methods are most effective to obtain intelligence. They go by the mantra, they go by what has been done before.

To address this question, the committee explored how other Government agencies conduct interrogation. The committee considered critical interrogations of individuals who do not want to disclose information-- people who are hardheaded and do not want to talk--interrogations where obtaining information can prevent widespread injury or death.

Every day, military interrogators in Iraq and Afghanistan question individuals with information that can save lives--every single day-- questions about where explosive devices are hidden, where captured soldiers have been taken, or where caches of weapons are stored, and a lot more.

Now, the CIA loves to argue: Oh, but they are just 18- to 20-year-old kids. They don't have the experience. We have experience. We have experience. We have been at it. We are the professionals. They did that at our public, open threats hearing a week or so ago.

Now, there is something called the FBI. They deal with pretty bad people, too. Their agents face life-and-death situations in both the world of terrorism and every-day criminality. Some of the individuals the FBI interrogate are senior leaders, individuals who are committed to staying silent and not sharing the information they possess. In fact, FBI agents recently questioned the top al-Qaida leaders who were formerly in CIA custody, gathering enough information from those al- Qaida leaders to build cases for trial, which we have recently read about.

Some of these FBI agents have been conducting interrogations for two or three decades. That does not sound like 18- to 20-year-olds. They are, without question, recognized experts in their field, and they are remarkably effective at obtaining the information they need. Yet both the FBI and the military have told us they do not need enhanced interrogation techniques. Are these naive organizations? Are these people who do not know what they are talking about? Are these people who do not have stakes at hand? They are out on the battlefield. They are not only at Guantanamo. They are out on the battlefield. They have told the committee the interrogation techniques included in the Army Field Manual provide them with flexibility they need to obtain the information they need.

Indeed, representatives from both the military and the FBI--both-- stated emphatically they have the tools they need to obtain necessary and reliable intelligence.

After considering the CIA's arguments, and those of the FBI and the U.S. military, I am simply not convinced that harsh CIA tactics are necessary to obtain intelligence information.

We also had people who were neutral who had experience in interrogation but were not currently in the practice of it. Their information to us also was that to terrorize, to torture, to manhandle, to do whatever, does not work. Human beings are human beings, and there are ways to get at them. In fact, coercive interrogation techniques can lead prisoners--and probably will in many cases--to say anything at all for the purpose of stopping the interrogation. As a result, coercive techniques can produce information that is fabricated and ultimately lead to flawed and misleading intelligence reports. This is not academic or hypothetical. Bad intelligence is a real danger.

In the early years and months after 2001, we were awash with bad intelligence in Washington, DC, not all of it coming out of coercive techniques, but out of a complete misunderstanding of what intelligence is all about. In fact, there was a condescension from the administration about the role of intelligence in providing reliable information. So this is not an academic or hypothetical point. Bad intelligence is a real danger when employing coercive interrogation techniques.

Intelligence reporting from an al-Qaida detainee--a very famous one named al-Libi he said Iraq was providing al-Qaida training in chemical and biological weapons prior to the war, which was publicly trumpeted by the President of the United States, by the Secretary of Defense, by the Secretary of State, and other senior administration officials as proof of operating links between Iraq and al-Qaida and, therefore, as a basis for going in to invade Iraq.

Of course, basically all of us feel now that what the President said on March 23 in the other body, in his speech which gave him the authority to go to war, was based on intelligence which was almost entirely incorrect, and virtually everything he said, other than some rhetoric here and there--everything he said turned out to be wrong, and, therefore, was one of the most extraordinary disservices to the American people, not to speak of the dead and the wounded, that I can remember in my lifetime. But the Nation was inspired by the thought of fighting terror, and so on they went.

Ultimately, al-Libi, who said these things, recanted. He recanted, and it was determined by the CIA that he had fabricated this central allegation of this link between al-Qaida and Iraq and other information based on his claim of mistreatment during the interrogations.

So this is not an academic point. America went to war based on an alleged threat that was partially based on fabricated information produced under coercive interrogation.

Apart from the question of efficacy and the risk of bad intelligence, the committee has explored the consequences of having a different, secret standard of interrogation for the intelligence community. This is where the need for section 327 becomes clear.

Since the disclosure of information about the existence of secret prisons, and the use of harsh interrogation techniques, the reputation and moral authority of the United States have suffered dramatically. It is not a casual statement. One can say, yes, a lot of people have said that. But when that is true, that means that in Africa and Southeast Asia and South America and in the Middle East it becomes much easier for al-Qaida and those who would do us ill--and people within the United States who may belong to no formal organization like that at all--to develop anger, to develop a search for meaning to their lives because they do not see hope in their lives, and so they join. They join a group that will do damage. Some of our techniques have significantly increased the likelihood of that happening.

Rather than being a world leader in human rights, we have become known for the unapologetic use of aggressive interrogation techniques. Indeed, even Canada has included us on a list of countries that engage in torture.

Allowing the CIA to continue to use coercive interrogation techniques that are not part of the Army Field Manual is another piece of fodder for terrorist propaganda that cannot be underestimated. It is not just a rhetorical statement. It cannot be underestimated. It is no way to win the hearts and minds of the Muslim world. Ultimately, the war on terrorism is a war of ideas. Without a public standard of humane treatment, it is impossible to convince the world that we take our international obligations seriously, that we treat people humanely, and that we are a country of laws and we adhere to these laws.

We must uphold those standards that differentiate us from the terrorists whom we are fighting. If our Government continues to use secret interrogation techniques that many are convinced constitute torture, America's standing in the world will continue to go down even more. Every time it goes down, there are more people who sign up to do us harm.

The Israeli Supreme Court concluded, when it forbade the use of harsh interrogation techniques, the following:

This is the destiny of democracy, as not all means are

acceptable to it and not all practices employed by its

enemies are open before it. Although a democracy must often

fight with one hand tied behind its back, it nonetheless has

the upper hand. Preserving the rule of law, and recognition

of an individual's liberty, constitutes an important

component in its understanding of security. At the end of the

day, they strengthen its spirit and its strength and allow it

to overcome its difficulties.

So in closing, passing section 327 is critical to regaining our moral authority in the world--which is a little bit too easy to say; it is going to take a lot more than that but it is a start--and convincing people that the United States believes in due process and human rights rather than fear. Having a separate standard of interrogations for the CIA--as much as it may want to have it, as much as it may have pride in having their secret standard, as much as they talk about 18- to 20- year-olds--is simply not worth the cost. I, therefore, urge my colleagues to support section 327.

But no matter how the Senate votes on this motion, if it comes up, the CIA should very carefully consider the actions of the House and Senate Intelligence Committee. All Members need to consider what this large group concluded. The members of our committees are the only Members of Congress who have been briefed on the program and who are privy to the administration's best arguments in support of the program. That has to be said from time to time, and it sounds a bit arrogant, but there are people on the Intelligence Committees, both in the House and the Senate, who get briefings, and they know things that are not necessarily known to the rest of the Congress. Yet despite those briefings, a bipartisan majority of both the House and the Senate Intelligence Committees have determined that it is in the Nation's best interest to have only one standard of interrogation, a standard that can be publicly judged by the entire world, and this judgment by the representatives of the American people--that is, what we did in the conference committee--cannot be ignored.

Mr. President, I yield the floor.

Madam President, I rise today to support a short- term extension of the Federal Aviation Administration's contract authority and its collection and expenditure authority through to June 30, 2008. Because of the urgent need to extend the current aviation taxes and related budget provisions, I am supporting this legislation.

But I am becoming convinced that Congress cannot pass S. 1300, the Aviation Investment and Modernization Act, authored by then-Senator Lott and myself. I believe that Congress should pass a long-term extension of the existing aviation taxes in order to give the FAA the funding stability it needs while Congress moves forward with a comprehensive review of how the agency is funded. I cannot support the current funding regime, as it will not provide the agency with the resources it needs to build the Next Generation Air Traffic Control System. In lieu of a long-term extension, I would have preferred an extension until the end of this fiscal year, September 30, 2008, as it would have given the FAA and our Nation's airports a greater degree of reassurance that they will receive the full $3.5 billion in airport funding that Congress approved last year.

The short-term extension before us today is not only crucial to the ongoing functioning of the FAA, it is necessary because without it the agency faces a potential crisis. Without adopting this legislation, the FAA would not be able to pay 4,000 employees after February 29, 2008. And that is an unacceptable action. The last thing the agency needs right now is to endure a potentially debilitating staffing crisis. To preserve these jobs this short-term extension must be passed today.

This country's aviation system is the safest in the world. However, in remaining vigilant to maintain this standard we must ensure the FAA has the resources to continue its efforts in modernizing our air traffic control system and in updating the more antiquated parts of our aviation infrastructure. The passing of this extension today will allow these vital investments to continue.

I look forward to working with my friend and distinguished colleague, Senator Kay Bailey Hutchison, and members of the Senate's Finance and

Commerce Committees in making sure the FAA has the resources and tools it needs to continue making our aviation system the safest in the world. It is crucial we work together to provide the FAA with the certainty it needs in these challenging times for the aviation sector. This will not only benefit the FAA but the industry generally and the many millions of Americans it serves each year.

I say to the Presiding Officer, it is my understanding that the first amendment is minimization compliance review by Senator Whitehouse.

Mr. President, I simply would also like to be added as a cosponsor, and I congratulate Senator Whitehouse, Senator Bond, and others for doing an outstanding piece of work in resolving the differences on this extremely important enforcement mechanism.

Amendment No. 3920, as Modified

I move to reconsider the vote.

Mr. President, I ask unanimous consent to speak on this amendment.

Mr. President, I strongly support this amendment. I think it has very good delineation between how decisions are made. The FISA Court needs to be a part of this. I urge my colleagues to support the amendment.

I thank the senior Senator from California for offering this amendment, and for all of her work on ensuring that we have an appropriately drafted exclusivity provision. Senator Feinstein's amendment is critical to both our work on this bill and to our oversight of the intelligence community.

To understand the importance of the Feinstein amendment, we must look at both existing statutes and recent events.

There is already an exclusivity provision in the United States Code. It was enacted as part of the original Foreign Intelligence Surveillance Act in 1978 and placed, where it exists now, in title 18, the criminal law title of the United States Code.

That provision makes the Foreign Intelligence Surveillance Act and certain criminal wiretapping provisions the ``exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral and electronic communications may be conducted.'' Although the intent of Congress is clear from this language, recent history raises concerns about the adequacy of this provision.

In December of 2005, the American people and most of Congress learned for the first time that, shortly after the terrorist attacks of September 11, 2007, the President had authorized the National Security Agency to conduct certain surveillance activities within the United States.

In publicly justifying the legality of this program, the White House asserted that Congress had authorized the President's program by enacting an authorization for use of military force after September 11.

The authorization passed on September 14, 2001, did not mention electronic surveillance. Nor did it mention any domestic intelligence activities. Given the nature of both the authorization and the time in which it was passed, it is very unlikely that it occurred to anyone in Congress that the President might use this authorization to justify his position that the existing statute making FISA the exclusive means for conducting electronic surveillance no longer applied.

I have expressed my dismay in the past about the legal arguments that the President used to justify the surveillance program. We are still working through the many problems caused by the President's decision to go forward without input from Congress or the courts.

But no matter what the President should have done at the time, Congress now has an obligation to act to prevent this misuse of legislation. Having finally made the right decision in early 2007 to bring his entire program under the FISA Court, the President is no longer using the 2001 Authorization for the Use of military force as a justification to disregard FISA. But we must ensure that neither this President nor a future one resurrects the discredited argument that the 2001 authorization for the use of military force is a blank check for such lawlessness.

Section 102 of the Intelligence Committee bill prevents that abuse. Section 102 enacts an exclusivity provision as a new section 112 of FISA, and lists all statutes now in effect that constitute authority for electronic surveillance. This list is a clear statement of congressional intent: Congress did not intend any other presently- existing statutes to constitute an exception to FISA.

Conspicuously absent from the exclusive list is the 2001 authorization for the use of military force. The omission of the 2001 authorization from the complete list that will now be enacted in 2008 is a conclusive statement that the 2001 authorization may never again be used to circumvent FISA.

Senator Feinstein's amendment takes exclusivity one important step further. It is designed to ensure that no future President interprets a statute that does not explicitly mention electronic surveillance as an exception to the FISA exclusivity requirement. This would be an absolutely incorrect interpretation of existing law. Senator Feinstein's amendment ensures that no President will again make this mistake.

Senator Feinstein's amendment addresses the possible impact of future statutes by adding language to the exclusivity section that states that only an express statutory authorization for electronic surveillance will constitute an additional exclusive means for electronic surveillance.

By requiring ``express statutory authorization,'' Congress anticipates that a statute will only constitute an exception to FISA if it explicitly discusses electronic surveillance. Only those statutes listed in the FISA exclusivity section of the Intelligence Committee bill currently meet that standard.

The amendment therefore ensures that general statutes enacted in the future do not become the basis for exceptions to the FISA exclusivity provision. It also applies criminal and civil penalties for any electronic surveillance done outside of the list of authorized statutes.

The Feinstein amendment being offered today also resolves the operational concerns raised by the Director of National Intelligence about the exclusivity provision in the Judiciary Committee's amendment to the bill. Senator Feinstein's amendment does not include the undefined term ``communications information'' and therefore does not bar the acquisition of information that is currently authorized under other statutes.

Existing statutes as well as the current bill provide the intelligence community with mechanisms to obtain the intelligence the country needs in a legal manner, with the oversight of the courts. There is no need for this President, or any future President, to set aside the lawful, well-overseen procedures of FISA in favor of a secret intelligence program.

Both the Intelligence and Judiciary Committees have done a significant amount of work, on a bipartisan basis, to draft a bill that allows the collection of needed intelligence while still protecting the civil liberties of U.S. persons. Senator Feinstein's amendment helps to make sure that this work will not simply be ignored by this President or any future President.

Mr. President, I ask unanimous consent for 5 minutes.

Mr. President, I strongly oppose this amendment.

This amendment would prohibit the Government from acquiring any communication under title VII of the bill if the Government knows before or at the time of acquisition that the communication is to or from a person reasonably believed to be located in the United States, unless the Government follows the sequestration procedures set forth in the legislation.

I see a number of problems with this amendment and I strongly oppose it.

I am afraid that the practical effect of this amendment would be to restrict the scope of the collection authority under the bill to international terrorism. Under the terms of this amendment, no other important foreign policy or national security target could be pursued unless the Government goes through a process that appears to be basically unworkable.

Neither the Intelligence Committee nor the Judiciary Committee limited the scope of the authority in this bill to international terrorism. Both committees anticipated that the flexibility provided by this bill could be used against the gamut of foreign targets overseas with respect to proliferation, weapons development, the clandestine intelligence activities of our enemies, and other priorities. The full Senate should not limit the scope of this bill to one area of foreign intelligence.

A second problem with this amendment is the new, cumbersome procedures it would impose involving the sequestration of information if the communication is to or from a person in the United States. The amendment seems to require that the Attorney General must make an application to the FISA Court to have access to this information for more than 7 days, even if the communication, for instance, concerns international terrorist activities directed against the United States.

While I share the Senator's goal of protecting the privacy interests of Americans, I am afraid this amendment is unworkable.

It bears repeating that what we are trying to do in S. 2248 is modernize the Foreign Intelligence Surveillance Act so that FISA Court orders are not required when the Government is targeting non-U.S. persons overseas to collect foreign intelligence information. And we are trying to do this in a way that protects the privacy interests of U.S. persons.

We thus have included in S. 2248 numerous protections for U.S. persons--both when they are the specific targets of Government surveillance and when their communications are intercepted as the incidental result of the Government acquiring the communications of a foreign target.

The Feingold sequestration amendment does not achieve the appropriate balance of privacy and national security. It appears to me that requirements already in S. 2248, including the requirement that minimization procedures for this collection activity be approved by the FISA Court, represent a much better approach for balancing the national security and the privacy interests of U.S. persons.

I urge the amendment be defeated.

Mr. President, I strongly oppose this amendment. It is, of course, the whole shooting match. Substitution was brought up in the Judiciary Committee, and it was defeated. This, I believe, is the right way to go for the security of the Nation.

Mr. President, Senators Dodd and Feingold have offered an amendment to strike title II of the Intelligence Committee bill.

Title II addresses, in the narrowest way possible, a number of different underlying issues related to the past and future cooperation of providers. Any suggestion that it deals only with liability protection for providers related to the President's program fails to consider the title of the bill as a whole.

Unlike the Government's initial immunity proposals, title II does not try to address all of the different kinds of problems in one sweeping immunity provision that might provide immunity in situations where it is not deserved. Instead, it addresses each problem individually.

Let's look at the first problem. Under existing law, providers are entitled to protection from suit if they act pursuant to a FISA court order or if they receive a particular certification from the Attorney General. Senators Dodd and Feingold point to this existing immunity provision-- which may be based solely on the certification of the Attorney General--to suggest that no further immunity is needed. But this suggestion ignores the situation in the current lawsuits.

The Government has not allowed the providers who have been sued to publicly disclose whether or not they assisted the Government. Providers, therefore, cannot reveal whether they are already entitled to immunity, or even whether they declined to cooperate with the intelligence community.

In other words, even those providers who were not involved in the President's program or who acted only pursuant to a valid court order cannot extricate themselves from these lawsuits.

Section 203 of the Intelligence Committee bill, therefore, creates a mechanism within FISA that allows courts to review whether providers should be entitled to immunity under existing law, without revealing whether or not the provider assisted the intelligence community. The Dodd-Feingold amendment to strike title II strikes this provision, which protects those providers who indisputably complied with existing law.

There is a second problem that has not been widely discussed. Providers are currently subject to investigations by State public utilities commissions, which seek information about the relationship between the providers and Federal Government.

These State investigations essentially seek to force disclosure of classified information about the nature and extent of the information obtained by the intelligence community from communication providers. This inquiry into the conduct of the Federal Government is not an appropriate area for State regulation.

Section 204 of the Intelligence Committee bill, therefore, creates a new section of FISA that preempts State investigations that seek to force disclosure of classified information about the conduct of the Federal intelligence relationship between the provider and the intelligence community.

Finally, section 202 provides retrospective immunity for the participation of telecommunication companies in the President's warrantless surveillance program. We need to be very clear on the parameters of this section. It does not simply clean the slate for the actions of communications providers in the aftermath of 9/11.

In order for a provider to obtain liability protection, the Attorney General must certify that a company's actions were based on written assurances of legality, and were related to a communications intelligence activity authorized in the relevant time period.

Because these certifications require the Attorney General to have determined that legal requirements have been met and that the program was designed to detect or prevent a terrorist attack, an area where assistance would clearly be required, they parallel existing statutory requirements for immunity. Before immunity can be granted, the bill also requires the court to conduct a case-by-case review to ensure that the Attorney General did not abuse his discretion.

It is important to understand why the Intelligence Committee included this provision in our bill. After hearing from witnesses and reviewing documents, the committee concluded that the providers who assisted the Government acted in good faith, with a desire to help the country prevent another terrorist attack like those committed on September 11, 2001.

Even more importantly, however, the committee recognized that, because of the ongoing lawsuits, providers have become increasingly reluctant to assist the Government in the future. Given the degree to which our law enforcement agencies and intelligence community need the cooperation of the private sector to obtain intelligence, this was simply an unacceptable outcome.

Senators Dodd and Feingold have suggested that including the provision on liability protection as part of the bill is a sign of support for the President's program. It is not. It is simply a mechanism to ensure that accountability for the President's program lies with those who are truly responsible for it: The Government officials who represented to these companies that their actions were in accordance with the law. And it is a way to ensure that the intelligence community obtains the assistance it needs from the private sector to keep us safe.

The question of whether the President's warrantless surveillance program was legal, or whether it violated constitutional rights, can and must be answered. Likewise, if administration officials improperly violated the privacy of innocent U.S. persons by conducting this warrantless surveillance, they should be held accountable.

But suing private companies who may have cooperated with the Government is neither an appropriate accountability mechanism nor the best way to obtain answers to questions about the legality of the program, nor is it the appropriate way to encourage public disclosure of information about the program.

The Intelligence Committee's bill does not prevent Congress from conducting its own oversight of these issues, or even from creating alternative mechanisms to seek those answers. It also allows suits against the Government to go forward.

I encourage my colleagues to come up with appropriate alternatives for review of the President's program; alternatives that will ensure both that the story of the President's program is made available to the public in a manner consistent with the protection of national security information and that Government officials are held accountable for any wrongdoing in which they may have been involved.

What we must not do, however, is to make companies that cooperated with the Government in good faith bear the brunt of our anger towards the President and other Government officials about the warrantless surveillance program; our intelligence community's future relationship with the private sector is simply too important.

Protection from liability is simply a way to ensure that the next President has the cooperation of these companies both to obtain intelligence to protect the country and to protect the privacy interests of U.S. persons.

I, therefore, urge you to oppose the Dodd-Feingold amendment.

Mr. President, I move to reconsider the vote, and I move to lay that motion on the table.

Mr. President, I oppose this amendment.

The Senator from Wisconsin is offering an amendment that he argues will prevent what he calls ``bulk collection.'' The amendment is intended, as described by the Senator from Wisconsin, to ensure that this bill is not used by the Government to collect the contents of all the international communications between the United States and the rest of the world. The Senator argues that his amendment will prevent ``bulk collection'' by requiring the Government to have some foreign intelligence interest in the overseas party to the communications it is collecting.

I regret to say that I must oppose this amendment. I do not believe it is necessary. I do believe as drafted the amendment will interfere with legitimate intelligence operations that protect the national security and the lives of Americans.

In considering amendments today, we need to consider whether an amendment would provide additional protections for U.S. persons and whether it would needlessly inhibit vital foreign intelligence collection. I do not believe the amendment as drafted provides additional protections. Furthermore, intelligence professionals have expressed their concern that this amendment would interfere with vital intelligence operations and there are important classified reasons underlying that concern.

Let us review the reasons why the amendment is unnecessary: first, bulk collection resulting in a dragnet of all of the international communications of U.S. persons would probably be unreasonable of the fourth amendment. No bill passed by the Senate may authorize what the fourth amendment prohibits. What is more, the committee bill, in fact, explicitly provides that acquisitions authorized under the bill are to be conducted in a manner consistent with the fourth amendment.

Second, the committee bill stipulates that acquisitions under this authority cannot intentionally target any person known to be located in the United States. And, to target a U.S. person outside the United States, the government must get approval from the FISA Court.

Third, the committee bill increases the role of the FISA Court in supervising the acquisition activities of the Government. The bill requires Court approval of minimization procedures that protect U.S. person information. It maintains the prior requirement of Court approval of targeting procedures.

In the unlikely event that the FISA Court would give its approval to targeting procedures and minimization procedures that allowed the Government to engage in unconstitutional bulk collection, the committee bill also strengthens oversight mechanisms in the executive and legislative branches. These mechanisms are intended to ensure such activity is detected and prevented.

The sponsor of the amendment says that his amendment only requires the Government to certify to the FISA Court that it is collecting communications of targets for whom there is a foreign intelligence interest.

But the committee bill already requires the Attorney General and the Director of National Intelligence to certify to the FISA Court that the acquisition authorized under the bill is targeted at persons outside the United States in order to obtain foreign intelligence information.

Because the remedy does not improve upon the protections in the bill for Americans, and places new burdens on the surveillance of foreign targets overseas, I thus oppose the amendment and urge it be rejected.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Amendment No. 3938

Mr. President, I support this amendment.

It closes a gap in the Foreign Intelligence Surveillance Act. The amendment expands the definition of certain key terms in the law in order to enhance the Government's ability to obtain FISA coverage of individuals involved in the international proliferation of weapons of mass destruction.

Although the international proliferation of WMD is one of the most serious threats facing the nation, the Government cannot now get a FISA Court order for individuals believed to be engaged in international proliferation of weapons of mass destruction unless the Government can also show a close link between the trafficker and a foreign Government or an international terrorist organization.

Too often, this connection only becomes clear at the completion of the target's proliferation activity. With this amendment, the Government will be able to conduct electronic surveillance and physical searches, with a FISA Court order, at a much earlier stage in an individual's proliferation activities.

It should be understood that this amendment is intended to broaden FISA coverage only in those instances in which the individual is involved in international proliferation activities. The amendment is intended to cover those who are engaged in activities involving proliferation of weapons of mass destruction, which include under the terms of the amendment biological, chemical and radiological weapons and destructive devices that are intended to or that actually do have a capability to cause death or serious bodily injury to a significant number of people.

This amendment will enhance our efforts to acquire foreign intelligence information to detect and disrupt the international proliferation of weapons of mass destruction.

The vice chairman is to be applauded for addressing this issue and I urge passage.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Amendment No. 3927

Mr. President, the distinguished ranking member of the Judiciary Committee, Senator Specter, has offered an amendment proposing to substitute the government for the providers in the ongoing civil lawsuits.

I appreciate and agree with the sentiment of Senator Specter and Senator Whitehouse that the government--not the providers who operated in good faith with them--should be held responsible for the legal fallout from the President's warrantless surveillance program. But this amendment lays out a remarkably complicated litigation procedure that is unlikely to achieve any meaningful review of the President's program.

Under this amendment, if the Attorney General submits a certification to the district court that an individual carrier provided assistance in connection with the President's program or did not provide assistance, the district court certifies a question to the FISA Court.

The FISA Court is then required to determine whether the carrier cooperated with existing law, or acted in good faith and pursuant to an objectively reasonable belief that the written request was legal. If the FISA Court makes that finding, the government is substituted for the carrier in the district court.

At that point, litigation continues against the government under several different possible statutes, and the provider is dismissed from the suit. The plaintiffs may, however, seek discovery--that is, documents, witness testimony, and other information--from the providers who were originally named in the lawsuit.

This complicated procedure raises a number of concerns both about the determination by the FISA Court and the resolution of the lawsuits after the government is substituted.

As an initial matter, it is unclear why the cases would need to be transferred to the FISA Court for a determination of good faith. The Intelligence Committee has already made an assessment of the good faith of the cooperating providers. The possibility of a court--rather than the Congress--making the good faith determination is particularly relevant to an amendment offered by Senator Feinstein, and I am sure we will discuss it further.

But even if Congress seeks to have a court, rather than Congress, make a determination of good faith, having that.determination made in the FISA Court unnecessarily complicates the process. The FISA Court is not a standard factfinding trial court; it does not hear from witnesses, take evidence, or assess the ``good faith'' of private parties. The FISA Court is simply not set up to make factual determinations that impact civil lawsuits.

Nor does transferring the cases to the FISA Court help the plaintiffs in these cases. They are not entitled to hear the classified information concerning the good faith of the providers, and they will not be involved in the debate.

In addition, although a finding of good faith would normally result in dismissal of the lawsuits, under this proposal, the providers would still potentially have the burden of producing documents and witnesses. Thus, because providers who acted in good faith will continue to have a role in the litigation, even if they are no longer the named defendants, this proposal does not relieve the cost and reputational burdens of the litigation. It therefore is unlikely to encourage the providers to cooperate with the government in the future.

It is also unclear what substituting the government in these cases seeks to accomplish. The proposal would involve changing the nature of the claims filed against telecommunications companies to causes of action against the government under a number of statutes, including the Federal Tort Claims Act, the Administrative Procedure Act, or FISA. Suits under these statutes, however, can be, and in some cases, have already been brought against the government.

If it is already possible to sue the government under thee statutes for possible violations, and indeed, if the government has already been sued under these statutes, why do we need to create a new procedure to convert claims against private companies into these claims against the government?

Finally, we should look at what is actually happening in the current litigation. Many of my colleagues have suggested that allowing the litigation to continue--with either the government or the providers as the defendant--will allow the court to resolve the issue of whether the providers acted in accordance with the law. But this is not presently the debate in the litigation.

Right now, the parties in the approximately 40 civil lawsuits are arguing about access to classified information about the President's program. The government has refused to publicly reveal the classified documents and information that would allow litigation to proceed. Because classified information is needed to address even threshold litigation issues, having the government or a particular provider as defendant in the suit is unlikely to change this aspect of the litigation.

In other words, whether or not we substitute the government for the provider, no court is likely to resolve the question of whether the President, or any private company, violated the law in the near future. Given that the administration is unlikely to declassify information about the program while the lawsuits are ongoing, it is also unlikely that litigation will ever tell the story of what happened with the President's program. So what benefit is there to substituting the government in the providers' stead?

Providers who acted in good faith should be removed from ongoing litigation, without having the burden of responding to discovery and litigation requests and without the reputational harm of having suits in their name go forward against the government. Ongoing reminders of the potential pitfalls of cooperating in good faith with the government will not encourage these companies--whose assistance the intelligence community and law enforcement agencies desperately need--to cooperate with the government in the future.

If plaintiffs in any ongoing suit want to bring claims against government officials, those suits can be brought directly, without the complicated substitution procedure described in this amendment.

Although no member of the Intelligence Committee offered an amendment on this issue, the committee considered whether it would be more appropriate to substitute the government for particular providers in ongoing lawsuits as part of the work done in preparing this bill. For all of the reasons I have discussed, the committee ultimately decided that substitution was not the right approach to address the ongoing lawsuits.

I, therefore, cannot support this amendment, and I urge my colleagues to oppose it.

Mr. President, the distinguished Senator from California has offered an amendment to modify the procedures in the Intelligence Committee bill on dismissal of civil actions against telecommunications companies that assisted an element of the intelligence community with regard to the President's warrantless surveillance program.

Senator Feinstein's amendment preserves the basic idea of the Intelligence Committee bill; namely, that narrowly crafted immunity for private companies is an appropriate way of resolving dozens of lawsuits arising from the President's program. But the amendment makes one significant change in the procedure proposed by the Intelligence Committee. Rather than Congress deciding that each and every company acted in good faith, the question of whether individual carriers relied in good faith on representations made by the Government would be made by the FISA Court.

I understand and appreciate the Senator from California's desire to have a court make this good faith determination. But in this particular case, I think that Congress is better able to assess the context in which companies cooperated with the Government in order to determine whether they acted in good faith.

As members of the Intelligence Committee, Senator Feinstein and I have had access to the letters sent to the telecommunications companies. We have heard from the companies who were told after 9/11 that their assistance was ``required'' and that the request for assistance was based on a Presidential order, the legality of which was certified by the Attorney General.

In addition, the committee understands the threats faced by the United States in the years after September 11, and the effect that threat environment had on all American citizens.

The committee also understands exactly how critical the private sector is to all of our intelligence collection efforts, and what effect the pending lawsuits have had on the private sector's continued cooperation with the Government.

The policy question that is at the heart of the Feinstein amendment-- whether companies that cooperated with the intelligence community after September 11 should be protected from liability for their actions--is not a question than can truly be addressed in an individual court case. Unlike the fact-intensive, good faith determinations that would be made in a court case, this question is not about how a company reacted to each individual piece of correspondence it received, or its discussions with the Government. The question should not be answered on a piecemeal basis, based on whether each of the individual actions taken by any particular company was in good faith.

Knowing how to address this policy issue instead depends on understanding the circumstances that surrounded the requests, the full dimension of the threat, and the historical relationship between the Government and the companies. Because Congress has the ability to look at the totality of the circumstances in a way that a court evaluating an individual company's good faith cannot, I feel that it is our responsibility to assess the reasonableness of the response of all of the companies.

Given the circumstances involved in this sensitive matter, I believe Congress, not the courts, should make the determination as to whether companies acted in good faith and should be protected from liability.

Apart from disagreeing as to who should make the decision about good faith, there are also a number of significant procedural concerns with the Feinstein amendment. I fear that these problems would make the amendment unworkable.

Under Senator Feinstein's amendment, the first step in the immunity process would be the same as under the Intelligence Committee's bill. The Attorney General would make a certification to a court in which a case against a telecommunication company is being heard. The certification would say one of two things.

First, if the company assisted the government, the certification would have to indicate that any assistance provided had been for an intelligence activity involving communications that had been authorized by the President between September 11, 2001, and January 2007.

The certification would also have to state that the assistance had been described to the company in a written request or directive from the Attorney General or the head or deputy head of an intelligence community element which indicated that the activity was authorized by the President had determined to be lawful.

Alternatively, the certification could indicate that the telecommunications company did not provide the alleged assistance.

The court would then have the opportunity to review the Attorney General's certification for abuse of discretion. To protect national security information, only the judge would be entitled to review the certification; the plaintiffs would not have access to it.

Under the committee's bill, such a certification would be the end of the process, except for the issuance of the court's order dismissing the action if the Attorney General's certification met these requirements.

Senator Feinstein's amendment, in contrast, uses that certification to trigger a transfer of the case to the Foreign Intelligence Surveillance Court. This amendment also specifically provides that the FISA Court will permit any plaintiff in an applicable covered civil action to appear before the Court.

This transfer of the case to the FISA Court seriously complicates the existing lawsuits, and poses a number of significant procedural problems that are not resolved in the amendment.

As an initial matter, the type of analysis in the amendment is outside the longstanding scope and jurisdiction of the FISA Court.

Under the Feinstein amendment, the FISA Court would be required to determine, acting as a body of all judges, whether immunity would be granted under current law, whether the company had an objectively reasonable belief under the circumstances that compliance with the written request or directive was lawful, or whether the company did not provide the alleged assistance.

None of these determinations involve the Foreign Intelligence Surveillance Act, the statute on which the FISA Court has expertise. Indeed, the point of the litigation is that the President's program was conducted outside of FISA.

In addition, the FISA Court is not generally set up for adversarial civil litigation; it does not usually hear from witnesses or take evidence. Although Congress has granted the Court the ability to hear challenges to certain FISA directives, it has never before been asked to make factual determinations that affect the outcome of civil lawsuits.

Sending the case to the FISA court therefore raises all sorts of questions. For example, would the FISA Court, acting en banc, hear testimony from witnesses? If so, who would examine the witnesses? What rules of evidence would apply? What role would the plaintiffs play in the proceeding?

The FISA Court would have to come up with an entirely new set of procedures just to handle this litigation. This new proceeding-- particularly as the Court would have to act en banc--would significantly strain the resources of the Court that oversees our electronic surveillance of terrorists and foreign powers and protects the privacy of U.S. persons.

Nor does transferring the cases to the FISA Court necessarily help the plaintiffs in these cases. As they do not currently have security clearances, the Government is unlikely to provide the plaintiffs with access to classified information about the proceeding. Thus, most likely, they will not be involved in the debate.

I commend the Senator from California for her efforts to come up with a mechanism by which the court can consider and determine the good faith of the companies. But, because of all of the procedural problems with this amendment I have described, as well as a more fundamental belief that Congress has a unique ability in this circumstance to assess the good faith of the companies, I cannot support this amendment.

The PRESIDING OFFICER (Mr. Whitehouse.) All time has expired. The question is on agreeing to amendment No. 3919.

The yeas and nays have been ordered.

The clerk will call the roll.

Mr. President, under a unanimous Consent agreement, the Senate has accepted three amendments to the FISA Amendments Act of 2008. I would like to say a word about each.

The senior Senator from Massachusetts has authored a helpful amendment to ensure that the Government will not intentionally acquire communications where the sender and all intended recipients are known at the time of the acquisition to be located in the United States.

Our bill, S. 2248, is not intended to authorize the intelligence community to acquire purely domestic communications.

Electronic surveillance of purely domestic communications requires a court order under title I of FISA. In addition, S. 2248 explicitly prohibits the targeting of persons known at the time of acquisition to be located inside the United States.

The importance of the Kennedy amendment is that it reinforces our intent. It should put to rest any doubts about what the Senate intends with respect to protecting the communications of persons within the United States. I am grateful for the willingness of the Senator Kennedy to work with the committee on this amendment.

I would also like to acknowledge his leading role in the history of FISA as the sponsor of the original FISA legislation, first in 1976, and then when FISA was enacted in 1978. Senator Kennedy helped the Congress then to enact legislation that protects both our national security and the rights of Americans. We are grateful that he has stepped forward again to help us achieve those goals.

Under the unanimous consent agreement, the Senate has accepted an amendment by Senator Whitehouse that resolves an important question about the status, pending appeal, of an order by the Foreign Intelligence Surveillance Court requiring correction of deficiencies in intelligence collection procedures under the new title VII of FISA.

The amendment requires the FISA Court of Review to determine, within 60 days of the Government's appeal, whether all or part of a FISA Court order requiring correction will be implemented during the appeal. The Government may continue collection until the appellate court makes that determination, and longer if the Court so determines. The 60-day requirement ensures that the matter will receive appellate attention without undue delay.

We appreciate Senator Whitehouse's successful effort to resolve this matter.

Finally, under the unanimous consent agreement, the Senate has accepted an amendment by Vice Chairman Bond to delete a statutory requirement that appeals in cases either challenging or seeking to enforce directives to companies be filed within 7 days. The amendment leaves it to the FISA Court or the Court of Review to establish that deadline as they do for all other appeals under FISA.

The amendment recognizes the responsibility of those courts to establish rules. And it recognizes that both the Government and carriers may require additional time to evaluate whether an appeal should be filed.

I appreciate the vice chairman's effort to resolve this matter.

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

Madam President, I ask unanimous consent that the amendment at the desk making technical and conforming changes to the bill be in order, notwithstanding the adoption of the substitute amendment, and that the amendment be adopted. This consent request has been approved by both leaders.

Madam President, after a long debate, we are, in fact, ready to, hopefully, pass the FISA bill. This has been an extremely important debate over important issues critical to the Nation's security.

As I discussed at the beginning of the debate, the guiding principle in bringing this bill to the Senate floor was to modernize our ability to collect communications intelligence against foreign targets without compromising the constitutional and statutory privacy protections afforded to all Americans. In my mind, we have achieved this goal.

Vice Chairman Bond and I worked very hard in the Intelligence Committee to produce a balanced and bipartisan bill. One can say whatever one wants, but 13 to 2 is 13 to 2. I think we can be proud of the improvements we have made to the bill each step of the way since last September. But, in fact, it goes all the way back almost a year. In the end, the bill we are about to pass, I hope, strengthens our national security and represents a very significant improvement over the Protect America Act that passed last summer.

Let me mention a few of the provisions we have included in the bill for protecting the rights of Americans here in the United States and overseas.

We require an individual FISA order for the targeting of U.S. persons believed to be located outside the United States any time the collection is conducted inside the United States.

We have also put in place for the first time a procedure requiring FISA Court approval for collection on United States persons outside of the United States in circumstances that would require a warrant if undertaken within the United States. This has never before existed. It now exists in the FISA law, if we do, in fact, pass it.

We have increased the role of the FISA Court in other significant ways, starting with the new requirement that the FISA Court approve the minimization procedures that are essential to the treatment of information concerning Americans authorized under this act. And thanks to Senator Whitehouse's amendment adopted this morning, we have clarified that the FISA Court has inherent authority to enforce compliance with the procedures that it, and it alone, can approve.

We also adopted new requirements to give Congress visibility into how the new collection authority is being implemented, from the Feingold amendment on FISA Court documents, to the new requirements for reporting by the Attorney General and the Director of National Intelligence.

Just as we have worked on a bipartisan basis here in the Senate in order to achieve the strongest possible bill, I believe now is the time to work with our colleagues in the House of Representatives to achieve a true bipartisan, bicameral bill. I look forward to that dialog with our House colleagues.

I would note there are additional measures I support which may make this legislation even stronger. Among these would be the exclusivity amendment of Senator Feinstein that received a strong bipartisan majority vote this morning. I think it was 57 votes. I commend her for all of her work she has done on this critical issue and on other parts of the bill, and I will fight like heck for her in the conference committee, if we are to have one. We will continue to work with her and with Vice Chairman Bond to see if there is any way to bridge the differences in the bipartisan manner that has dominated our negotiations throughout this procedure.

In closing, it would not have been possible to have reached this point without the hard work of the staff of the Intelligence and Judiciary Committees, as well as the leadership staff. From the Intelligence Committee, I thank Andy Johnson; Louis Tucker; Melvin Dubee; Michael Davidson; Jack Livingston; Christine Healey; Alissa Starzak; and Kathleen Rice. I also thank Mary DeRosa, Nick Rossi, Zulima Espinel, and Matt Solomon of the Judiciary Committee; and Ron Weich, Serena Hoy, and Marcel Lettre of the majority leader's staff.

Finally, I must recognize the steadfast support and work of the committee's vice chairman, Senator Bond. The work of the Intelligence Committee is not easy. When it comes on the floor, it is more difficult because there is a certain kind of exclusivity which is not appreciated by some Members but is the way it works.

Vice Chairman Bond has been dogged in his efforts to move this whole thing forward. He is formidable in his pursuit of intelligence and his insistence it be made available to the committee and to the appropriate committees; and he is flexible in his willingness to find compromises to keep our bipartisan coalition together.

I hope this bill does pass. I think it is landmark legislation. I don't think all will see it that way at the very beginning, and that is OK because what we do is not so much of the moment but for the longer term. So there may be disagreements on immunity. But, on the other hand, there can be no disagreements on the national security of the United States. Immunity has been narrowly tailored. A lot of people don't know that, or maybe made up their minds at the beginning, but, whatever, we did what we thought was the right thing to do.

One of the great things about being in this body is no matter what people say and what people think, if you do what you think is right, you are serving your country.

I thank the Presiding Officer and yield the floor.

I suggest the absence of a quorum.

Madam President, I suggest the absence of a quorum.

Mr. President, I ask unanimous consent that the Committee on Armed Services be authorized to meet during the session of the Senate on Tuesday, February 12, 2008, at 9:30 a.m., in open and closed session to receive testimony on Air Force nuclear security.

Mr. President, I ask unanimous consent that the Committee on Health, Education, Labor, and Pensions be authorized to meet during the session of the Senate, in order to conduct a hearing entitled: ``Addressing Healthcare Workforce Issues For the Future.''

The hearing will take place on Tuesday, February 12, 2008, at 2:30 p.m. in room 106 of the Dirksen Senate Office Building.

Mr. President, I ask unanimous consent that the Senate Committee on the Judiciary be authorized to meet during the session of the Senate, in order to conduct a hearing entitled ``Judicial Nominations'' on Tuesday, February 12, 2008, at 2:30 p.m., in room SR-301 of the Russell Senate Office Building.

Witness list

James Randal Hall to be United States District Judge for the Southern District of Georgia, Richard H. Honaker to be United States District Judge for the District of Wyoming, Gustavus Adolphus Puryear, IV to be United States District Judge for the Middle District of Tennessee, and Brian Stacy Miller to be United States District Judge for the Eastern District of Arkansas.

Mr. President, I ask unanimous consent that the Select Committee on Intelligence be authorized to meet during the session of the Senate on February 12, 2008, at 2:30 p.m., in order to hold a closed hearing.

Mr. President, I ask unanimous consent that the Senate Committee on the Judiciary, Subcommittee on Crime and Drugs, be authorized to meet during the session of the Senate, in order to conduct a hearing entitled ``Federal Cocaine Sentencing Laws: Reforming the 100-to-1 Crack/Powder Disparity'' on Tuesday, February 12, 2008, at 2:30 p.m., in the Dirksen Senate Office Building, room 226.

Witness list

John Richter, United States Attorney, Western District of Oklahoma, U.S. Department of Justice; The Honorable Ricardo H. Hinojosa, Chair, U.S. Sentencing Commission, Washington, DC; The Honorable Reggie B. Walton, United States District Judge, Member, Criminal Law Committee, Federal Judicial Conference, Washington, DC; Nora Volkow, M.D., Director, National Institute on Drug Abuse, U.S. Department of Health & Human Services, Washington, DC; and James Felman, Co-Chair, Sentencing Committee, Criminal Justice Section, American Bar Association.

Mr. President, I would say to the Presiding Officer that this amendment would prevent disclosure or dissemination of any collected information by U.S. persons if the FISA Court finds there are deficiencies in the Government's targeting or minimization procedures under the new authority.

There is no need to add another penalty to ensure compliance with the requirement of the statute. The amendment gives the court very little discretion to determine whether nondisclosure is the appropriate remedy. Nondisclosure could be required even if the information is particularly significant foreign intelligence information, or if there is only a minor deficiency in the procedure that cannot be corrected within 30 days.

It is a very short way of saying that I oppose this amendment strongly.

I have already spoken on this amendment.

I suggest the absence of a quorum.

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

Mr. President, this turns the bill on its head. This says if we are targeting folks overseas, that in effect we have to get a FISA Court approval for each and every time that happens.

Let me say the amendment causes enormous operational problems for intelligence professionals. They are very serious about it. The DNI and the Attorney General say it will hamper U.S. intelligence authorizations currently authorized because every single person would have to have a court order, and

when you are collecting overseas, that becomes kind of a burden.

While the technical details concerning such intelligence operations are classified, the concern is that the restriction would prevent the Government from doing intelligence collection against a foreign city, or a neighborhood in a foreign city, in advance of a military operation or perhaps in pursuit of a terrorist cell.

The amendment is unnecessary, and I urge its defeat.

Mr. President, my remarks are only to indicate strong support for this amendment. It is a wise modification. As far as I know, there are none who are in dissent. I hope it will be accepted.

Mr. President, in every respect, I second the words of the vice chairman of the Senate Intelligence Committee. Speaking for this Senator, in the course of last year, this Senator has spent 6 months working on the children's health insurance bill with staff who do so much work that they sleep 2 or 3 hours a night, including the weekends, and achieved nothing. We have had, in a sense, the same process on the FISA bill. It is very complicated because it is a very delicate subject and requires this very difficult balance between intelligence collection for the security of the Nation and civil liberties of the people.

I am extremely proud of the way the vice chairman and others, particularly the majority leader and the minority leader, have conducted this affair. It took quite some time to get it going. I do believe I also see light at the end of the tunnel. I think if we do our work on Tuesday, we will have time to conference this bill with the House and send a bill to the President. In any event, I am grateful, particularly to the staff whose work is never mentioned enough.

Mr. President, today I recognize the achievements of someone who has inspired me personally, who has made West Virginians laugh when there is little to laugh about, and whose contribution to my home State cannot be underscored enough.

When New Martinsville native Bill Stewart led the West Virginia Mountaineers into the Fiesta Bowl, he did more than just defeat the Oklahoma Sooners 48-28. ``Coach Stew,'' as his fans reverently call him, lifted the spirits of our entire State.

Since that time, Bill's West Virginia charm has been infectious, his press conferences legendary, and his impact on our State's culture profound. Anyone who has played or worked with him loves him. His arrival on the scene was exactly what the State needed: a good-natured underdog with which people could identify.

For West Virginians, December 2007 had been abysmal. Not only did we lose a chance at the National Championship, but we lost our coach, endured endless ridicule in the media, were constantly told that Oklahoma would embarrass us--the negativity never seemed to stop.

But then Coach Stew stood up, stood proud, and said, with his trademark smile, ``When it gets too tough for everyone else--it's just about right for Billy Stewart.''

And he was absolutely right.

Now, every time I go home, West Virginians cannot emphasize enough the amount of pride they felt when this coach guided their team into the Fiesta Bowl. West Virginians will never forget Bill's optimism, when he promised to give the Sooners a good fight; his emotion, when he met quarterback Patrick White at the sideline, grabbed him by the helmet and seemed to say, ``I love you, kid''; his satisfaction, as he watched his team storm the field, victorious; or his own surprise, when WVU rewarded Bill with the Mountaineers' head coaching job--a position for which he was too humble to politic, but more than qualified to accept.

These were iconic moments in West Virginia history--and they pulled right on the heart strings.

The degree of humility in this coach was absolutely awe-inspiring; his faith jaw-dropping; and his devotion to his players and colleagues nothing short of extraordinary. Since those memorable days in Arizona, Coach Stew has assembled a top-notch staff, maintained an impressive recruiting class, and recaptured the heart--not just the attention--of Mountaineer Nation.

To me, Bill Stewart embodies all that is good about West Virginia. An unlikely but deserving hero, he is a man whose cheerful optimism, character and Appalachian charm have given us a reason to cheer again.

For that, I express my deepest gratitude and deepest admiration to New Martinsville's favorite son. I am glad that he is a fellow West Virginian, I am glad that he is a part of our culture, and I wish him the absolute best of luck.

Mr. President, I wish to make a few comments on the amendment of the Senator from Wisconsin and what he referred to as the ``bulk collection'' amendment which he discussed yesterday and which is amendment No. 3912. I would ask that this time be taken from the opponents of the amendment, if that is all right with my vice chairman.

The Senator from Wisconsin is offering an amendment that he argues will prevent what he calls ``bulk collection''. The amendment is intended, as described by the Senator from Wisconsin, to ensure that this bill is not used by the Government to collect the contents of all the international communications between the United States and the rest of the world. The Senator argues that the amendment will prevent ``bulk collection'' by requiring the Government to have some foreign intelligence interest in the overseas party to the communications it is collecting.

I regret to say I must oppose this amendment strongly. I do not believe it is necessary. I do believe, as drafted, the amendment will interfere with legitimate intelligence operations that

protect the national security of the lives of Americans.

In considering amendments today, we need to consider whether an amendment would provide additional protections for U.S. persons and whether it would needlessly inhibit vital foreign intelligence collection. I do not believe the amendment, as drafted, provides additional protections. Furthermore, intelligence professionals have expressed their concern that this amendment would interfere with vital intelligence operations, and there are important classified reasons underlying that concern.

Let us review why the amendment is unnecessary. First, bulk collection resulting in a dragnet of all the international communications of U.S. persons would probably be unreasonable under the fourth amendment. No bill passed by the Senate may authorize what the fourth amendment of the Constitution prohibits. What is more, the committee bill, in fact, explicitly provides that acquisitions authorized under the bill are to be conducted in a manner consistent with that same fourth amendment of the Constitution.

Second, the committee bill stipulates that acquisitions under this authority cannot intentionally target any person known to be located in the United States. And to target a U.S. person outside the United States, the Government must get approval from the FISA Court.

Third, the committee bill increases the role of the FISA Court overseeing the acquisition activities of the Government. The bill requires court approval of minimization procedures that protect U.S. persons' information. It maintains the prior requirement of court approval of targeting procedures.

In the unlikely event the FISA Court would give its approval to targeting procedures and minimization procedures that allow the Government to engage in unconstitutional bulk collection, the committee bill also strengthens oversight mechanisms in the executive and legislative branches, such as requiring assessments by the inspectors general in the Department of Justice and relevant agencies. These mechanisms are intended to ensure that such activity is detected and prevented.

The sponsor of the amendment says his amendment only requires the Government to certify to the FISA Court that it is collecting communications of targets for whom there is a foreign intelligence interest. But the committee already requires the Attorney General and the Director of National Intelligence to certify to the FISA Court that the acquisition authorized under the bill is targeted at persons outside the United States in order to obtain foreign intelligence information. Because the remedy does not improve upon the protections in the bill for Americans and places new burdens on the surveillance of foreign targets overseas, I thus oppose this amendment and urge that it be rejected.

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

Mr. President, I ask my esteemed vice chairman if I might have 6 minutes to oppose Senator Feingold's reverse targeting amendment No. 3913.

The Senator from Wisconsin has an amendment that requires a FISA Court order if the Government is conducting surveillance of a person overseas, but a significant purpose of the surveillance is to collect the communications of a person inside the United States with whom the target is communicating.

I share the Senator's goal in protecting the privacy interests of Americans, but I am afraid this amendment, as drafted, is unworkable and unnecessary.

The amendment is described as a way to prevent reverse targeting-- circumstances in which the Government would target persons overseas when its actual target is a person within the United States with whom the overseas person is communicating.

The fact is, reverse targeting is prohibited under FISA today. I repeat, it is prohibited under FISA today. If the person in the United States is the actual foreign intelligence target, the Government must seek a FISA order, and, in fact, the Government would have to have every incentive to do so in order to conduct comprehensive surveillance of such a person.

What is more, the base bill, S. 2248, makes the prohibition on reverse targeting explicit. The Government cannot use the authorities in this legislation to target a person outside the United States if the purpose of such acquisition is to target for surveillance a person within the United States.

In addition, the base bill, the Intelligence Committee bill, also strengthens the protection of U.S. person information that is collected in the targeting of foreign targets overseas by requiring that the FISA Court approve the minimization procedures that apply to this collection activity.

The Feingold reverse targeting amendment, however, goes too far. The amendment would prohibit the Government from using the authorities of this act ``if a significant purpose'' of the acquisition is to ``acquire the communications'' of a particular known person within the United States. In order to acquire such communications, the Government would be required to seek a regular FISA Court order.

The problem is that we are revising the Foreign Intelligence Surveillance Act today in large measure precisely because we want the intelligence community to have the ability to detect and acquire the communications of terrorists who call into the United States. In other words, in order to detect and prevent terrorist attacks, finding out if a foreign terrorist overseas is in contact with associates in the United States is actually a significant purpose of this legislation, and it will always be a significant purpose of any targeting of a foreign terrorist target overseas by the intelligence community.

As the Statement of Administration Policy--that is objections usually that come over from the White House--points out:

A significant purpose of the intelligence community

activities is to detect communications that may provide

warning of homeland attacks and that may include

communication between a terrorist overseas who places a call

to associates within the United States. A provision that bars

the intelligence community from collecting those

communications is unacceptable.

Who is to say that person from overseas is not a terrorist and he is contacting a person in the United States to discuss something which is not in the national interest or which has intelligence implications? You cannot in good conscience bar the intelligence community from collecting these communications. That is unacceptable.

Again, reverse targeting is prohibited under current law. I think that is the third time I have said that. Reverse targeting is prohibited by the committee bill. The amendment is not needed to achieve its stated goals. It will harm vital intelligence collection. I urge the amendment be defeated.

I reserve the remainder of our time.

Mr. President, I ask that I be given unanimous consent to speak on the underlying bill.

Mr. President, I say to the Presiding Officer that far and away the most contentious issue in this FISA debate is whether private companies that assisted the Government in implementing the President's warrantless surveillance program should be provided liability protection.

Three amendments will be offered that relate directly to this issue.

First, Senators Dodd and Feingold have an amendment that would strike all of title II of the underlying bill--that is, S. 2248--on liability protection as reported by the Intelligence Committee.

Second, Senator Specter will offer an amendment--I think at 3:30-- that provides for a different remedy; namely, the substitution of the U.S. Government itself for the carriers in the lawsuits that have been filed against the carriers.

Third, Senator Feinstein has prepared an amendment that would keep the basic structure of title II--to wit, liability immunity--but would have the courts, rather than the Congress, determine whether carriers relied in good faith on the representation made to them by the executive branch of our National Government.

I will address the particulars of each amendment as it is offered, but first I would like to describe the background behind the Intelligence Committee's approach to this whole issue of immunity.

Critics have suggested that providing liability protection for telecommunications companies is akin to congressional endorsement of the President's warrantless surveillance program. I understand the passion stirred by this issue. Rather than consulting with Congress or the courts, the President created a secret surveillance program--no question about that--based on very dubious legal reasoning. That was unnecessary, that was unwise, that would, therefore, cause passions and suspicions.

But anger over the President's program should not prevent us as a deliberative body from addressing the real problems the President has created.

Because of the lawsuits over the program and the damage to the telecommunications companies' reputations, companies that were once willing to help the Government, based on assurances of legality from the highest levels of Government, may now be questioning that assistance.

Let's reflect on that for a moment. These are corporations. They have no names at the present time. They have to make money. The Government comes to them, as they have in the past on much smaller matters, and with the authority of the President saying, this is in the national interest; with the legal advice of the Attorney General saying, this is legal; and then the Director of the National Security Agency sending out letters that say, we require you, we compel you, we request to you--or other words--that you cooperate with us.

People say: Well, they cooperated. Of course they cooperated right after 9/11. I think anybody who is in the intelligence business understands what I am saying. There is no difference between the day after 9/11 and this day in terms of the threat to our country or those who are planning, plotting to do us harm.

The fact that no attacks have happened does not excuse the sense of relaxation on the whole subject--perhaps the congressional sense of relaxation on the whole subject. We need to continue this intelligence collection.

What is it, I am wondering, that the telecommunications companies get from this? What prestige? What large amount of money? What praise? What do they get from this? Do they get good public relations? No. They get 40 lawsuits, most of which are not based on anything to do with the TSP program. In other words, they are picked out of newspapers. People are dissatisfied, and class action suits arise.

So maybe they have been sued $10 billion. Maybe they have been sued $40 billion. We will not speculate on that at the present time. But in that they are corporations and in that they have no reward at all for doing this service for their country--which we call patriotism, and then cast that aside because that must mask some evil intent--they go ahead and they do it. Then, since they are corporations, their shareholders get extremely unhappy about it, which could be happening at the present time, and then they decide that maybe they will be less willing to do this. Several have done that. Several at the beginning did that.

Now, corporations are in business also to make a profit. The corporations that are involved in this are doing nothing but losing prestige, losing reputation, have angry shareholders. And I ask myself, what is it they get out of doing this, because people, particularly on my side of the aisle, are sometimes inclined to be suspicious of corporations, that they have some kind of a purpose behind all of this. Nothing could be further from the truth. They are losing. They are being criticized. They are being sued. It is costly. It takes away from their energy to carry out their other missions. It is not a situation in which a whole bunch of people are sitting around in these corporate headquarters discussing this, because only a very few people are allowed to know, and they have criminal sanctions against them if they tell anybody, should they have received any of these instructions from the Government.

So we are not talking about people here trying to undo the safety of the United States or to gain some kind of advantage for themselves. If this intelligence collection stops, I say to the Presiding Officer, we will be in a very sorry situation. I do not know how to say that more sincerely, more deeply felt, more based upon exhaustive study, including numerous meetings in committee with these folks and other meetings outside.

So they have been told it is legal, and by the National Security Agency Director they have been required, compelled, and in other words, some of which are quite strong, to do it. So they do start to do it, and they are paying one heck of a price for it.

What price are we paying? We are paying no price because they are still doing it. What price might we pay should they stop--because they are corporations, and they are responsible to their shareholders--if they should stop this type of activity? The price we would pay would be overwhelming. Without the cooperation and assistance of private companies--not compliance forced by a court but true cooperation--this country's law enforcement and intelligence agencies cannot obtain the information they need to protect this country. It is a fairly heavy statement to make. I chair the committee. I am not naive on these matters. I make that statement again. Without the cooperation and assistance of private companies, this country's law enforcement and intelligence agencies cannot obtain the information they need to protect this country.

Making the question of liability protection a proxy for disagreement with the President's program is, therefore, shortsighted, in this Senator's view, ignoring the reality that the Nation and future Presidents will depend on the assistance of these same companies for years to come.

In analyzing the question of liability protection, the Intelligence Committee sought to weigh these very real concerns about future intelligence collection against the possible outcome of lawsuits. We discussed it at length. Understanding this issue requires some background on the lawsuits that have been filed.

Currently, providers are subject to approximately, as I indicated, 40 civil lawsuits, some of which are class actions, which seek billions of dollars of damages--and I have given you a range--for privacy violations based on the companies' alleged provision of assistance and information to the intelligence community. The suits are based--many of them--on media reports about all sorts of intelligence activities. Many of them are not limited to the warrantless surveillance program disclosed by the President. That is ironic, but it is a heavy burden for the companies. If suits are brought that have nothing to do with the warrantless surveillance program disclosed by the President, they are out of order. But, as I will proceed to explain, the companies can never explain to a court that they are out of order. Although these suits involve different types of legal claims that are in varying stages of litigation, they share a common reality: that the Government has refused to publicly reveal the classified documents and information that would allow them to proceed.

The current fight in the courts is, therefore, not about whether damages should be awarded, whether the underlying program is legal or even whether any company participated in the President's program in good faith. Instead, the parties are fighting about access to classified information about the President's program. I have not heard that much discussed in this Chamber. This litigation could continue for years without a court ever addressing the underlying issues about the legality of the program. We seek wrongdoing whether, as some say, it is in the corporate boardroom or, as others would say--as I would say--in the halls of Government.

I stress the point: No court is likely to resolve the question of whether the President or any private company violated the law in the near future.

Some of my colleagues have argued that without these lawsuits, the public will never learn the details about the President's program. But litigation is highly unlikely to tell the story of what happened with the President's program. Too many of these facts dealing with intelligence sources and methods remain appropriately classified, and the executive branch is highly unlikely to agree to declassify additional information if it could affect the ongoing litigation.

Thus, the litigation is unlikely to result in a ruling in the near future about the legality of the conduct of the President nor any private company, nor, for that matter, the public disclosure of any additional information about the President's program. Instead, it is possible the cases, as I indicated, will continue for years as the courts debate whether information must be disclosed.

In the meantime, however, as I mentioned, the litigation poses a serious risk to U.S. intelligence collection. That is my job and that is the job of the committee I chair and the job of the chairman of the Intelligence Committee in the House. We are not about being courts, we are about trying to balance civil liberties as best as we can

with the ability of this country to collect an entirely different kind of intelligence that we were so busy doing recently in the Cold War era. Without the assistance of telecommunications providers, our intelligence community simply cannot obtain the intelligence it needs.

Is that a serious statement? Do Members of the Senate concern themselves with that? Is this just me, this Senator, standing up making a statement trying to win some votes? Or is there the possibility it could be true? If there is a possibility--and I think it is a probability it is true--then I don't understand why people can be confused on this subject because I think the choices are clear. Allowing companies to be dragged through the court system because of their alleged cooperation with the Government encourages them not to cooperate with any request, even those that are clearly legal without court compulsion. It also sends a message to all private companies: cooperate with the U.S. Government at your peril. Is that a bit of an overstatement? In the corporate boardrooms around this country, my guess is that is the discussion. Very few corporations have the capacity to help the Government in the way telecommunications companies do.

Discouraging private sector cooperation with the Federal Government is not, in the feeling of this Senator, the right long-term result for either the intelligence community or the American people.

Many have argued that providers who act unlawfully should be held accountable. I totally agree that all Americans, including corporate citizens, must follow the law and be held accountable for their failures. Companies that deliberately seek to evade privacy laws or legal restrictions on electronic surveillance can and should be subject to civil suit, but that is not the issue here, I would say to the Presiding Officer. That is not the issue.

The Intelligence Committee spent a lot of time, as I have indicated, this year looking into what happened over the past 6 years. Before deciding to provide liability protection for the companies, the Intelligence Committee heard testimony from relevant witnesses and carefully reviewed the written communications provided to participants in the program.

Participants were sent letters, all of which stated the relevant activities had been authorized by the President and all but one--and that was done by the legal counsel to the President--of which stated the activities had been determined to be lawful by the Attorney General of the United States. Shouldn't private companies be entitled to rely on the written representations of the highest levels of Government officials that their cooperation is necessary and has been determined to be lawful? Can you argue that if they get those notifications from the NSA Director and it has been approved by the Attorney General and has been declared essential for the national interest by the President, should they instead say: Oh, well, we don't care about that. That is not our business. We are not going to do that.

And isn't it reasonable to assume that a U.S. citizen who has been told the Attorney General has found their cooperation to be lawful is acting in good faith? If they have been through this process and they proceed to act on it, why is it so easy to stipulate they are not acting in good faith? How does one show that? How does one imagine that?

I have been through this, this whole question of what the companies get from it, and it is the thing that bothers me so much. They get nothing but grief. They get suits. They get costs. They get a diminished reputation. They begin to pull away. Their shareholders lose confidence. Do they get money? No. They get nothing. So why would they want to continue to cooperate would be my question.

The answer to these questions are at the heart of the Intelligence Committee's determination that it is essential that Congress protect private companies that assisted the Government after the terrorist acts of 9/11.

Mr. President, I will complete this part of my presentation and yield the floor. I suggest the absence of a quorum.

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

Mr. President, I ask unanimous consent that at 3:05 p.m. today the Senate return to the Cardin amendment No. 3930, with the time from 3:05 until 3:15 equally divided and controlled in the usual form; that the Senate then proceed to vote in relation to the amendment, with other provisions of the previous order remaining in effect.

This is a total of 10 minutes or less amendment, but we will not start until 3:05. The Senator can call it up.

I say to the Presiding Officer, I find myself in disagreement with my vice chairman. I originally wanted 4 years and we went to 6 years because of accommodations that yielded other results. In the wisdom of the joint Intelligence Committee and Judiciary Committee, settling on 4 years makes a lot of sense. I urge the adoption of the amendment.

Madam President, I am reluctant to ask, but I must, how much time remains before 4:30?

Wonderful.

Madam President, I simply rise to say I will oppose this amendment and I will oppose it strongly and I think for a series of very good reasons. But in spite of my eloquence and the ability to talk very quickly, I simply cannot do the task in 1\1/2\ minutes. So I ask unanimous consent to reserve my right to speak further at the appropriate time before the vote.

If the Senator will yield, it is very important for a particular person on this floor to be able to, within the next 15 minutes--and for a particular reason--say some things that are very important to her, not on either of our pending amendments, the two amendments you and I are about to offer. The Senator has already approached the Parliamentarian in this matter. I ask if the Senator from Missouri would be willing to allow the Senator from Washington to speak on a different subject for 15 minutes for a very good reason.

Mr. President, understanding whatever it is that the Senator from Arizona decides he wants to do, there is a particular reason and a particular time constraint that the Senator from Washington has to speak now. That is why I asked that she be allowed to speak in morning business. She will make that request, and I hope there will be no objection to it.

Mr. President, I would like to offer my strong support for the amendment offered by Senator Whitehouse to ensure there is explicit written legal authority in this bill for the Foreign Intelligence Surveillance Court to review and to assess compliance with the minimization procedures established for the bill's new acquisition authority.

One of the most serious deficiencies in the Protect America Act was the fact that the FISA Court was not given a role at all in approving the minimization procedures put in place by the Attorney General and the Director of National Intelligence for collection activity. That was fine. But it was insufficient.

Minimization procedures are the procedures that govern the treatment of nonpublic information concerning Americans in the acquisition and retention and dissemination of foreign intelligence.

The Intelligence Committee's bill addressed this deficiency in the Protect America Act by requiring the court to review and approve minimization procedures. The committee, however, learned, and then was happy to take from in our discussions, the Judiciary Committee's better approach to this. We did not, in the Intelligence Committee bill, explicitly authorize the court to assess compliance with these minimization procedures.

As the Senators from Rhode Island and New York have pointed out, there is no point in having something on the books if you cannot be sure it is going to be complied with.

So compliance is a sacred principle. Senator Whitehouse's amendment will ensure that the court can assess the executive branch's compliance with these minimization procedures, be provided with information it needs to make the assessment, and have the authority to enforce this assessment.

The administration objected to the provision reported from the Judiciary Committee allowing the FISA Court to review compliance with minimization procedures as being what it called ``a massive expansion'' of the court's role.

The administration also argued there are enough other oversight mechanisms already in the bill, through requirements on the Attorney General, the Director of National Intelligence, the Inspectors General of the intelligence agencies.

I respectfully disagree with that assessment. Assessing compliance is inherent in the court's role. It is inherent in the FISA Court's role in reviewing and approving minimization procedures in the first place. In fact, without it, without the compliance part of it, the first parts are nice but not sufficient.

Having the court assess compliance with minimization procedures is an important safeguard to ensure there is due care in the handling of, as I say, nonpublic information concerning U.S. persons.

I therefore urge the adoption of this amendment.

I yield the floor.

Mr. President, with the forbearance of the Senator from Maryland, I wish to place our situation in context because we have a number of things going on, and I would like the Parliamentarian to explain it to me so it is very clear to all of us.

Before I do that, I am reading at the direction of the leader his unanimous consent request, and that is to have the time from 5:20 p.m. to 5:30 p.m. be reserved for debate on the motion to invoke cloture on the motion to proceed to H.R. 5140, the economic stimulus bill; further, that the time be equally divided and reserved for the two leaders or their designees, with the Republicans controlling the first 5 minutes and the majority controlling the final 5 minutes.

Now I would like to ask the Parliamentarian to help me be sure and our Members on the floor and others what our situation is. The chairman of the Judiciary Committee has just given an extraordinarily moving tribute to a very dear friend of his-- extraordinarily moving--but that came in between. Now, the Senator from Pennsylvania has come upon the floor and he wants to say certain things, and there are people in the gallery to whom this would have a direct effect, so there is a temptation to go along with that. On the other hand, we are still on the Feingold amendment. I believe that to be the pending amendment, if the Parliamentarian declares that to be the case.

On the other hand, the person who is listed second on the order of the day is the Senator from Maryland. In the matter of how many years we should wait before going back to this, if we do, he was in fact the second person on the order of the day for the second amendment. He is here. He has been waiting and he wants to present that amendment. So it is 4 o'clock and we have a variety of things before us, and I wish the Parliamentarian to set us straight as to where we are.

I don't know how much time is remaining on both sides with respect to the Feingold amendment.

If this Senator does his mathematics, that takes us already past the time of the unanimous consent.

Of course, we don't have to use all our time. Therefore, I would encourage our colleagues not to do so, and yet to get out the full body of the amendment.

I appreciate the response of the Parliamentarian, the Presiding Officer, and I yield the floor.

This Senator would add an additional complication but one which is necessary and highly important.

Senator Leahy, as I indicated, gave a very moving statement. We now have two more Senators on the floor who wish to discuss equally tragic circumstances with members of either the family or close friends in the gallery, which means we cannot postpone, for a variety of reasons which the senior Senator gave me.

I ask unanimous consent that we set the pending amendment aside temporarily and first call upon the junior Senator from Pennsylvania and then the senior Senator from Pennsylvania to make a few short remarks.

Mr. President, in the absence of the Senator from Maryland, I yield myself 5 minutes from the time controlled by Senator Cardin on his amendment.

Mr. President, this Senator supports the amendment of the Senator from Maryland to revise the sunset provision of the bill so that the new authority established under this act will expire after 4 years.

This Senator had originally started out supporting a 4-year sunset because it seemed to make sense because it comes during the next President's term in office.

This is supremely important legislation. There is no one--with the exception of the administration--who has objected, no committee which has objected to the idea of considering a sunset review. The reason is very clear: One wants to make sure, when you are balancing foreign intelligence collection, intelligence collection in general, and civil liberties, that one has the right balance. The question before us today is what date in the future makes the most sense for a sunset.

There are a number of new initiatives which are either proposed to be started in this legislation or which will be started in this legislation, and none of them are entirely predictable.

I think a 4-year sunset makes a lot of sense because it is so important that we know what we are doing, that we know we are doing it right, and that we know the intelligence community knows it is doing its work correctly--I do not mean badly or superbly but simply that they are getting it the way they want to do it and it is compatible with the spirit of the law, that the Congress and the administration are in sync on it. We do this before we settle this into permanent law.

This is all new. Everything changed on 9/11. Many considerations under the law, particularly with respect to the gathering of intelligence and the protection of privacy, changed. This is especially important in light of the rapid pace of change in telecommunications technology--one of the main reasons were are here today revising FISA.

I think we need to have a 4-year sunset amendment. I do think it is important that the intelligence community, the Congress, and the administration come back together in 4 years. Congress, obviously, can bring it up anytime we want. On the other hand, if we do it this way, with a 4-year sunset amendment, it obliges all participants to come to participate. That is the way we get resolved what works and what does not work, and we learn from the intelligence people, and they learn from us, as to what we think is the best way to proceed.

So I do strongly support that amendment. It would take us to December 31, 2011. This four year period would give the intelligence community ample time to move ahead but it also ensures that the decision on permanency is made when Congress and the executive branch are prepared to evaluate the legislation again. As I have indicated, I support the amendment.

I yield the floor.

Several Senators addressed the Chair.

Senator Feingold's amendment concerns the effects of a court determination that there are deficiencies in the Government's procedures under the new authority. This is a complicated issue and I think it is important to explain why I cannot support this amendment.

I wish to add that what the vice chairman and I both believe all of this is going to be litigated in the courts for decades to come, and all that is said here by us and everybody else becomes an important part of the record.

Under the Intelligence Committee bill, the FISA Court is required to review the Government's certification, targeting procedures, and minimization procedures to ensure their adequacy. If the court finds a deficiency in either the minimization or targeting procedures, the Intelligence Committee bill requires the Government correct the deficiency or cease the acquisition.

The Feingold amendment goes beyond requiring that collection be terminated or deficiencies corrected. It restricts the use or disclosure of any information collected that concerns U.S. persons.

Unless the Attorney General determines the information indicates a threat of death or serious bodily harm or the person consents, the amendment would prevent the Government from sharing or disseminating with anyone in the Federal Government any information already acquired under the new procedure that concerns U.S. persons.

I can understand that there may be, at first glance, some appeal to that idea. Senator Feingold, for example, has said it is important to ensure there are consequences when the Government has not adequately developed its procedures. Hard to argue.

But looking at the consequences of this amendment in more detail makes it clear the provision is impractical. And it creates serious risks that we will lose valuable intelligence.

The language of the Senator's amendment is taken from the emergency provisions currently in FISA. Under those provisions, the Attorney General can authorize electronic surveillance without a court order in an emergency, as long as an application for an order is submitted to the court within 72 hours. If a court does not approve the FISA collection on an individual target after this emergency intelligence collection has begun, FISA prevents the intelligence collected from being ``used or disclosed in any . . . manner by Federal officers or employees without the consent of such persons,'' unless the Attorney General determines the information indicates a threat of death or serious bodily harm.

The impact of this existing emergency provision in FISA, however, is far different than the impact of Senator Feingold's amendment.

In contrast to limiting the use of a small amount of information collected on one target during 72 hours of emergency procedures, Senator Feingold's amendment potentially limits use of all information gathered through a new system of intelligence collection. To understand why these are different situations, it is useful to consider the difference between traditional FISA applications and orders and the new title VII provisions.

Unlike traditional FISA applications and orders, which involve collection on one individual target, the new FISA provisions create a system of collection. The court's role in this system of collection is not to consider probable cause on individual targets but to ensure that the procedures used to collect intelligence are adequate. The court's determination of the adequacy of procedures, therefore, impacts all electronic communications gathered under the new mechanism, even if it involves thousands of targets. I will repeat that.

Senator Feingold's amendment applies to all of this intelligence collection. If the court finds a deficiency that the Government does not correct within 30 days, the Federal Government could not disclose any information on U.S. persons that was gathered as part of the new intelligence collection system without the consent of the person.

Thus, unlike existing emergency procedures, which limit the use of a small amount of intelligence gathered over a 72-hour period on one target, Senator Feingold's amendment would potentially restrict the use of large amounts of intelligence, without regard to the importance of the intelligence.

In addition, under the Feingold amendment, intelligence analysts would have to determine whether the collected intelligence contained information concerning U.S. persons. The Feingold amendment would require the intelligence analysts to sift through all of the intelligence collected under the new process in order to identify information potentially subject to restriction.

As part of that process, analysts might be required to look at information that had not previously been analyzed in detail because it did not appear to contain significant foreign intelligence information, in order to determine whether the information concerned U.S. persons.

Senator Feingold's amendment, therefore, has the potential to be more intrusive of U.S. privacy interests than the initial collection.

Finally, this limitation on use applies regardless of what deficiency is found by the court, as long as the deficiency is not corrected within 30 days. Even if the court finds a minor deficiency in the procedures and the Government is acting in good faith to correct it, this provision would require the intelligence community to prevent any disclosure of the information.

Please consider that, Madam President--to share with nobody in the Government.

In sum, this provision could restrict the use of significant amounts of intelligence based solely on minor deficiencies in procedures. It may also require the intelligence community to focus its analytical resources on satisfying this provision rather than on collecting and analyzing the intelligence needed to protect this country.

In my view, this allocation of resources makes no sense. I therefore cannot support this amendment.

I reserve the remaining time, which is about 4 minutes.

I yield the floor.

Madam President, in two sentences, thousands of targets in the Senator's amendment, thousands of targets, all foreign means hundreds or thousands of pieces of intelligence. Intelligence does not come as one lump. It is an enormous array of collection of all kinds of things which are stitched together over time. All that intelligence could be lost under the Feingold amendment if there were only U.S. person information that was involved.

I yield the floor.

Madam President, I suggest the absence of a quorum.

Mr. President, I rise today in support of the Wild Monongahela: A National Legacy for West Virginia's Special Places Act. This important piece of legislation sets aside over 47,000 acres of wilderness in the Monongahela National Forest so that our children and grandchildren will have the opportunity to enjoy the forest in its pristine state.

West Virginians have a proud tradition of mining and logging that provides needed resources for our entire country. I have no doubt that this tradition will continue for many decades

to come. However, at the same time, new development is coming to West Virginia. This is needed development that provides jobs for West Virginians and helps support our economy. But with this increased development comes a responsibility to set some part of our natural environment aside for those who come after us.

The Monongahela Forest encompasses nearly 920,000 acres of land in the heart of the Appalachian Mountain Range and contains some of the most ecological and geological unique reaches of our State. There are currently five wilderness areas in the Monongahela including the Cranberry Wilderness and Dolly Sods Wilderness. This bill will create four new wilderness areas and expand three of the existing areas. All of the land being designated as wilderness was already being treated as either recommended wilderness by the Forest Service or as backcountry recreation.

I want to extend my thanks to Congressman Rahall for his leadership on this bill and congratulate him on drafting legislation that has received the support of West Virginia's entire bipartisan congressional delegation. Like all members of the congressional delegation, I have heard from hundreds of West Virginians how wilderness is important to them. I have heard how wilderness is a major draw for the outdoor tourism industry and will provide jobs. I have heard from West Virginians who want to make sure that they will be able to continue to fish pristine streams and hunt in the forests. They want to experience the excellent hiking and backpacking the hills of West Virginia have to offer, and make sure their grandchildren have that same opportunity. But the reason I heard more than any others from West Virginians was the need to protect some small part of God's creation as His stewards on this Earth.

This legislation has received support from diverse groups and people across West Virginia including the West Virginia AFL-CIO, the Fayette County Commission, West Virginia Council of Churches, and both the Pocahontas and Greenbrier County Conventions and Visitor Bureaus, just to name a few. I know that there will be people who feel that this legislation is too big and goes too far. At the same time I recognize those West Virginians who are disappointed that areas of the Monongahela Forest special to them were not included. But I believe this legislation strikes a careful balance that will protect West Virginia's forests and serve our State's interests for generations to come.