Floor Statements

Mr. President, I have no objection to that. But I would like to add that when the Senator from Washington has concluded her remarks, I be recognized for my remarks.

Mr. President, I wish to speak to the amendment offered by the Senator from Connecticut to the FISA bill, the Foreign Intelligence Surveillance Act, the amendment that would strike provisions from the bill that provide liability protection to those telecommunications companies that were asked by our Government to assist us in a dire time of need.

I begin by asking unanimous consent to have printed in the Record at the conclusion of my remarks a letter to Senator Reid, dated February 5, 2008, and signed by Attorney General Mukasey and Director of National Intelligence Admiral McConnell.

(See exhibit 1.)

Mr. President, next, I would like to quote a few passages from this letter that relate specifically to this issue of liability protection. They begin by noting:

Liability protection is the just result for companies who

answered their Government's call for assistance. Further, it

will ensure that the Government can continue to rely upon the

assistance of the private sector that is so necessary to

protect the Nation and enforce its laws.

The point of beginning with this reference is to note the fact that what happened was that the U.S. Government, in the aftermath of 9/11, went to certain kinds of telecommunications and asked for their assistance in tracking down foreign terrorists, in providing intelligence-gathering services to the U.S. Government. These companies did not have a legal obligation to provide that support, but they certainly, as good citizens of the United States, undertook to provide the support, some of them in that capacity. The question is whether, having done that in good faith, they should now be protected from private lawsuits that have been filed against them or whether, as is the historic tradition in such circumstances, they would be immune from such lawsuits for volunteering to help the Government.

Here is a little bit of what Attorney General Mukasey and Admiral McConnell wrote in the letter.

In its report on S. 2248, the Intelligence Committee

recognized that ``without retroactive immunity, the private

sector might be unwilling to cooperate with lawful government

requests in the future without unnecessary court involvement

and protracted litigation. The possible reduction in

intelligence that might result from this delay is simply

unacceptable for our Nation.''

The letter goes on to say:

The committee's measured judgment reflects the principle

that private citizens who respond in good faith to a request

for assistance by public officials should not be held liable

for their actions.

And that, in fact, has always been the common law rule in the United States of America. The concern is not only to protect those who were good enough to assist the Government in the past but also to ensure that in the future companies can rely upon this type of protection because of all of the situations in which they find themselves. It is very difficult for people to do business with them if they believe they might be hauled into court and all of the resultant effects of litigation would extend to them.

In the letter that Attorney General Mukasey and Admiral McConnell wrote to our leadership, they point out their objection to several amendments and one of those amendments is specifically the one offered by the Senator from Connecticut, striking the immunity provisions, No. 3907. They begin by discussing it in this way:

Extending liability protection to such companies is

imperative; failure to do so could limit future cooperation

by such companies and put critical intelligence operations at

risk. Moreover, litigation against companies believed to have

assisted the government risks the disclosure of highly

classified information regarding extremely sensitive

intelligence sources and methods. If any of these

amendments--

And they specifically refer to this amendment--

. . . are part of the bill . . . we, as well as the

President's other senior advisors, will recommend that he

veto the bill.

We know we need a bill to become law. We know what the President will accept, and we know it would be unacceptable to strike the immunity provisions as amendment No. 3907 would do. But let me continue to quote from this letter, because the authors note something in addition to the problem I identified, and I will state from it precisely:

This amendment also would strike the important provisions

in the bill that would establish procedures for implementing

existing statutory defenses in the future and that would

preempt State investigations of assistance provided by any

electronic communication service provider to an element of

the intelligence community. Those provisions are important to

ensuring that electronic communication service providers can

take full advantage of existing immunity provisions and to

protecting highly classified information.

In other words, this amendment doesn't simply strike the immunity provisions but would also have this deleterious effect.

I want to quote from three other paragraphs of the bill, but I don't want to exceed 10 minutes. Therefore, I would ask how much time I have consumed.

I thank the Chair.

Let me quote from three other paragraphs of the letter relating to this amendment. The authors are referring to the Intelligence Committee's extensive work on this particular aspect of the problem, and they say:

After reviewing the relevant documents, the Intelligence

Committee determined that providers had acted in response to

written requests or directives stating that the activities

had been authorized by the President and had been determined

to be lawful.

The letter goes on to note:

In its Conference Report, the committee ``concluded that

the providers had a good faith basis'' for responding to the

requests

for assistance they received. The Senate Intelligence

Committee ultimately agreed to necessary immunity protections

on a nearly unanimous bipartisan 13-2 vote. Twelve members of

the committee subsequently rejected a motion to strike this

provision.

The authors go on to note:

The immunity offered in S. 2248 applies only in a narrow

set of circumstances.

They note, for example:

A court must review this certification before an action may

be dismissed. This immunity provision does not extend to the

government or government officials.

In other words, they can still be sued.

And it does not immunize any criminal conduct.

This is critical to understand what the amendment does not do.

Let me quote from the final paragraph relating to this particular amendment. Attorney General Mukasey and Admiral McConnell say:

Providing this liability protection is critical to the

national security. As the Intelligence Committee recognized,

``the intelligence community cannot obtain the intelligence

it needs without assistance from these companies.'' That

committee also recognized that companies in the future may be

less willing to assist the government if they face the threat

of private lawsuits each time they are alleged to have

provided assistance. The committee concluded that: ``The

possible reduction in intelligence that might result from

this delay is simply unacceptable for the safety of our

Nation.''

The authors then conclude:

Allowing continued litigation also risks the disclosure of

highly classified information regarding intelligence sources

and methods. In addition to providing an advantage to our

adversaries, the potential disclosure of classified

information puts the facilities and personnel of electronic

communication service providers at risk. For these reasons,

we, as well as the President's other senior advisers, will

recommend that he veto any bill that does not afford

liability protection to these companies.

This is, I guess one could say, the definitive word of what the President is recommending and is willing to accept from the Congress. It comes from the two individuals in our Government who have the chief responsibility for our safety with respect to not only the protection of American civil liberties but also the gathering of foreign intelligence, and it extensively quotes from the report of the committee itself, the Intelligence Committee, which it notes acted in a bipartisan 13-to-2 vote to provide for this liability protection.

That is why it is so critical that when we have an opportunity to vote, I gather tomorrow or whenever we have an opportunity to vote on the amendment of the Senator from Connecticut, we reject that amendment on the grounds that it is contrary to the Intelligence Committee's actions, to the recommendations of the Attorney General and the Director of National Intelligence, and to the President with respect to the liability protection for these entities.

There is much we cannot discuss, because so much of this program is of a classified nature. But I think everybody understands the fundamental principle involved here, and that is: When citizens of the United States are asked by their Government to assist, and they agree to do that in good faith for the protection of citizens of the United States of America, they should be protected from lawsuits that have been filed. That is what the amendment of the Senator from Connecticut would do is to eliminate that protection, and it is why the amendment should be defeated.

I hope my colleagues are recognizing the seriousness of what these two authors of this letter have said when they recognize the seriousness of the potential consequences from failing to provide this kind of liability protection and that we will support the Intelligence Committee, we will support the intelligence community, and we will reject the amendment of the Senator from Connecticut.

Exhibit 1

February 5, 2008.

Hon. Harry Reid,

Majority Leader, U.S. Senate, Washington, DC.

Dear Senator Reid: This letter presents the views of the

Administration on various amendments to the Foreign

Intelligence Surveillance Act of 1978 (FISA) Amendments Act

of 2008 (S. 2248), a bill ``to amend the Foreign Intelligence

Surveillance Act of 1978, to modernize and streamline the

provisions of that act, and for other purposes.'' The letter

also addresses why it is critical that the authorities

contained in the Protect America Act not be allowed to

expire. We have appreciated the willingness of Congress to

address the need to modernize FISA and to work with the

Administration to allow the intelligence community to collect

the foreign intelligence information necessary to protect the

Nation while protecting the civil liberties of Americans. We

commend Congress for the comprehensive approach that it has

taken in considering these authorities and are grateful for

the opportunity to engage with Congress as it conducts an in-

depth analysis of the relevant issues.

In August, Congress took an important step toward

modernizing FISA by enacting the Protect America Act of 2007.

That Act has allowed us temporarily to close intelligence

gaps by enabling our intelligence professionals to collect,

without a court order, foreign intelligence information from

targets overseas. The intelligence community has implemented

the Protect America Act in a responsible way, subject to

extensive executive branch, congressional, and judicial

oversight, to meet the country's foreign intelligence needs

while protecting civil liberties. Indeed, the Foreign

Intelligence Surveillance Court (FISA Court) recently

approved the procedures used by the Government under the

Protect America Act to determine that targets are located

overseas, not in the United States.

The Protect America Act was scheduled to expire on February

1, 2008, but Congress has extended that Act for fifteen days,

through February 16, 2008. In the face of the continued

threats to our Nation from terrorists and other foreign

intelligence targets, it is vital that Congress not allow the

core authorities of the Protect America Act to expire, but

instead pass long-term FISA modernization legislation that

both includes the collection authority conferred by the

Protect America Act and provides protection from private

lawsuits against companies that are believed to have assisted

the Government in the aftermath of the September 11th

terrorist attacks on America. Liability protection is the

just result for companies who answered their Government's

call for assistance. Further, it will ensure that the

Government can continue to rely upon the assistance of the

private sector that is so necessary to protect the Nation and

enforce its laws.

S. 2248, reported by the Senate Select Committee on

Intelligence, would satisfy both of these imperatives. That

bill was reported out of committee on a nearly unanimous 13-2

vote. Although it is not perfect, it contains many important

provisions, and was developed through a thoughtful process

that resulted in a bill that helps ensure that both the lives

and the civil liberties of Americans will be safeguarded.

First, it would establish a firm, long-term foundation for

our intelligence community's efforts to track terrorists and

other foreign intelligence targets located overseas. Second,

S. 2248 would afford retroactive liability protection to

communication service providers that are believed to have

assisted the Government with intelligence activities in the

aftermath of September 11th. In its report on S. 2248, the

Intelligence Committee recognized that ``without retroactive

immunity, the private sector might be unwilling to cooperate

with lawful Government requests in the future without

unnecessary court involvement and protracted litigation. The

possible reduction in intelligence that might result from

this delay is simply unacceptable for the safety of our

Nation.'' The committee's measured judgment reflects the

principle that private citizens who respond in good faith to

a request for assistance by public basic legal role officials

should not be held liable for their actions. Thus, with the

inclusion of the proposed manager's amendment, which would

make necessary technical changes to the bill, we strongly

support passage of S. 2248.

For reasons elaborated below, the Administration also

strongly favors two other proposed amendments to the

Intelligence Committee's bill. One would strengthen S. 2248

by expanding FISA to permit court-authorized surveillance of

international proliferators of weapons of mass destruction.

The other would ensure the timely resolution of any

challenges to government directives issued in support of

foreign intelligence collection efforts.

Certain other amendments have been offered to S. 2248,

however, that would undermine significantly the core

authorities and immunity provisions of that bill. After

careful study, we have determined that those amendments would

result in a final bill that would not provide the

intelligence community with the tools it needs to collect

effectively foreign intelligence information vital for the

security of the Nation. If the President is sent a bill that

does not provide the U.S. intelligence agencies the tools

they need to protect the nation, the President will veto the

bill.

I. Limitations on the Collection of Foreign Intelligence

Several proposed amendments to S. 2248 would have a direct,

adverse impact on our ability to collect effectively the

foreign intelligence information necessary to protect the

Nation. We note that three of these amendments were part of

the Senate Judiciary Committee substitute, which has already

been rejected by the Senate on a 60-34 vote. We explained why

those three amendments were unacceptable in our November 14,

2007, letter to Senator Leahy regarding the Senate Judiciary

Committee substitute, and the Administration reiterated these

concerns in a Statement of Administration Policy (SAP) issued

on December 17, 2007. A copy of that letter and the SAP are

attached for your reference.

Prohibition on Collecting Vital Foreign Intelligence

Information (No amendment number available). This amendment

provides that ``no communication shall be acquired under

[Title VII of S. 2248] 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,'' except as authorized under Title I of FISA or

certain other exceptions. The amendment would require the

Government to ``segregate or specifically designate'' any

such communication and the Government could access such

communications only under the authorities in Title I of

FISA or under certain exceptions. Even for communications

falling under one of the limited exceptions or an

emergency exception, the Government still would be

required to submit a request to the FISA Court relating to

such communications. The procedural mechanisms it would

establish would diminish our ability swiftly to monitor a

communication from a terrorist overseas to a person in the

United States--precisely the communication that the

intelligence community may have to act on immediately.

Finally, the amendment would draw unnecessary and harmful

distinctions between types of foreign intelligence

information, allowing the Government to collect

communications under Title VII from or to the United

States that contain information relating to terrorism but

not other types of foreign intelligence information, such

as that relating to the national defense of the United

States or attacks, hostile actions, and clandestine

intelligence activities of a foreign power.

This amendment would eviscerate critical core authorities

of the Protect America Act and S. 2248. Our prior letter and

the Statement of Administration Policy explained how this

type of amendment increases the danger to the Nation and

returns the intelligence community to a pre-September 11th

posture that was heavily criticized in congressional reviews.

It would have a devastating impact on foreign intelligence

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

its provisions would be inordinately difficult to implement;

and thus it is unacceptable. The incidental collection of

U.S. person communications is not a new issue for the

intelligence community. For decades, the intelligence

community has utilized minimization procedures to ensure that

U.S. person information is properly handled and

``minimized.'' It has never been the case that the mere fact

that a person overseas happens to communicate with an

American triggers a need for court approval. Indeed, if court

approval were mandated in such circumstances, there would be

grave operational consequences for the intelligence

community's efforts to collect foreign intelligence.

Accordingly, if this amendment is part of the bill that is

presented to the President, we, as well as the President's

other senior advisors, will recommend that he veto the bill.

Imposition of a ``Significant Purpose'' Test (No. 3913).

This amendment, which was part of the Judiciary Committee

substitute, would require an order from the Foreign

Intelligence Surveillance Court (FISA Court) if a

``significant purpose'' of an acquisition targeting a person

abroad is to acquire the communications of a specific person

reasonably believed to be in the United States. If the

concern driving this proposal is so-called ``reverse

targeting''--circumstances in which the Government would

conduct surveillance of a person overseas when the

Government's actual target is a person in the United States

with whom the person overseas is communicating--that

situation is already addressed in FISA today. If the person

in the United States is the actual target, an order from the

FISA Court is required. Indeed, S. 2248 codifies this

longstanding Executive Branch interpretation of FISA.

The amendment would place an unnecessary and debilitating

burden on our intelligence community's ability to conduct

surveillance without enhancing the protection of the privacy

of Americans. The introduction of this ambiguous

``significant purpose'' standard would raise unacceptable

operational uncertainties and problems, making it more

difficult to collect intelligence when a foreign terrorist

overseas is calling into the United States--which is

precisely the communication we generally care most about.

Part of the value of the Protect America Act, and any

subsequent legislation, is to enable the intelligence

community to collect expeditiously the communications of

terrorists in foreign countries who may contact an

associate in the United States. The intelligence community

was heavily criticized by numerous reviews after September

11, including by the Congressional Joint Inquiry into

September 11, regarding its insufficient attention to

detecting communications indicating homeland attack

plotting. To quote the Congressional Joint Inquiry:

The Joint Inquiry has learned that one of the future

hijackers communicated with a known terrorist facility in the

Middle East while he was living in the United States. The

Intelligence Community did not identify the domestic origin

of those communications prior to September 11, 2001 so that

additional FBI investigative efforts could be coordinated.

Despite this country's substantial advantages, there was

insufficient focus on what many would have thought was among

the most critically important kinds of terrorist-related

communications, at least in terms of protecting the Homeland.

In addition, the proposed amendment would create

uncertainty by focusing on whether the ``significant purpose

. . . is to acquire the communication'' of a person in the

United States, not just to target the person here. To be

clear, a ``significant purpose'' of intelligence community

activities that target individuals outside the United States

is to detect communications that may provide warning of

homeland attacks, including communications between a

terrorist overseas and associates in the United States. A

provision that bars the intelligence community from

collecting these communications is unacceptable. If this

amendment is part of the bill that is presented to the

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

advisors, will recommend that he veto the bill.

Imposition of a ``Specific Individual Target'' Test (No.

3912). This amendment, which was part of the Judiciary

Committee substitute, would require the Attorney General and

the Director of National Intelligence to certify that any

acquisition ``is limited to communications to which any party

is a specific individual target (which shall not be limited

to known or named individuals) who is reasonably believed to

be located outside the United States.'' This provision could

hamper United States intelligence operations that currently

are authorized to be conducted overseas and that could be

conducted more effectively from the United States without

harming the privacy interests of United States persons. For

example, the intelligence community may wish to target all

communications in a particular neighborhood abroad before our

armed forces conduct an offensive. This amendment could

prevent the intelligence community from targeting a

particular group of buildings or a geographic area abroad to

collect foreign intelligence prior to such military

operations. This restriction could have serious consequences

on our ability to collect necessary foreign intelligence

information, including information vital to conducting

military operations abroad and protecting the lives of our

service members, and it is unacceptable. Imposing such

additional requirements to the carefully crafted framework

provided by S. 2248 would harm important intelligence

operations without appreciably enhancing the privacy

interests of Americans. If this amendment is part of the bill

that is presented to the President, we, as well as the

President's other senior advisors, will recommend that he

veto the bill.

Limits Dissemination of Foreign Intelligence Information

(No. 3915). This amendment originally was offered in the

Senate Intelligence Committee, where it was rejected on a 10-

5 vote. The full Senate then rejected the amendment as part

of its consideration of the Judiciary Committee amendment.

The proposed amendment would impose significant new

restrictions on the use of foreign intelligence information,

including information not concerning United States persons,

obtained or derived from acquisitions using targeting

procedures that the FISA Court later found to be

unsatisfactory for any reason. By requiring analysts to go

back to the relevant databases and extract certain

information, as well as to determine what other information

is derived from that information, this requirement would

place a difficult, and perhaps insurmountable, operational

burden on the intelligence community in implementing

authorities that target terrorists and other foreign

intelligence targets located overseas. The effect of this

burden would be to divert analysts and other resources from

their core mission-protecting the Nation-to search for

information, including information that does not concern

United States persons. This requirement also stands at odds

with the mandate of the September 11th Commission that the

intelligence community should find and link disparate pieces

of foreign intelligence information. Finally, the requirement

would actually degrade--rather than enhance--privacy

protections by requiring analysts to locate and examine

United States person information that would otherwise not be

reviewed. Accordingly, if this amendment is part of the bill

that is presented to the President, we, as well as the

President's other senior advisors, will recommend that he

veto the bill.

II. Liability Protection for Telecommunications Companies

Several amendments to S. 2248 would alter the carefully

crafted provisions in that bill that afford liability

protection to those companies believed to have assisted the

Government in the aftermath of the September 11th attacks.

Extending liability protection to such companies is

imperative; failure to do so could limit future cooperation

by such companies and put critical intelligence operations at

risk. Moreover, litigation against companies believed to have

assisted the Government risks the disclosure of highly

classified, information regarding extremely sensitive

intelligence sources and methds. If any of these amendments

is part of the bill that is presented to the President, we as

well as the President's other senior advisors, will recommend

that he veto the bill.

Striking the Immunity Provisions (No. 3907). This amendment

would strike Title II of S. 2248, which affords liability

protection to telecommunications companies believed to have

assisted the Government following the September 11th attacks.

This amendment also would strike the important provisions in

the bill that would establish procedures for implementing

existing statutory defenses in the future and that would

preempt state investigations of assistance provided by any

electronic communication service provider to an element of

the intelligence

community. Those provisions are important to ensuring that

electronic communication service providers can take full

advantage of existing immunity provisions and to protecting

highly classified information.

Affording liability protection to those companies believed

to have assisted the Government with communications

intelligence activities in the aftermath of September 11th is

a just result and is essential to ensuring that our

intelligence community is able to carry out its mission.

After reviewing the relevant documents, the Intelligence

Committee determined that providers had acted in response to

written requests or directives stating that the activities

had been authorized by the President and had been determined

to be lawful. In its Conference Report, the Committee

``concluded that the providers . . . had a good faith basis''

for responding to the requests for assistance they received.

The Senate Intelligence Committee ultimately agreed to

necessary immunity protections on a nearly-unanimous,

bipartisan, 13-2 vote. Twelve Members of the Committee

subsequently rejected a motion to strike this provision.

The immunity offered in S. 2248 applies only in a narrow

set of circumstances. An action may be dismissed only if the

Attorney General certifies to the court that either: (i) the

electronic communications service provider did not provide

the assistance; or (ii) the assistance was provided in the

wake of the September 11th attacks, and was described in a

written request indicating that the activity was authorized

by the President and determined to be lawful. A court must

review this certification before an action may be dismissed.

This immunity provision does not extend to the Government or

Government officials, and it does not immunize any criminal

conduct.

Providing this liability protection is critical to the

national security. As the Intelligence Committee recognized,

``the intelligence community cannot obtain the intelligence

it needs without assistance from these companies.'' That

committee also recognized that companies in the future may be

less willing to assist the Government if they face the threat

of private lawsuits each time they are alleged to have

provided assistance. The committee concluded that: ``The

possible reduction in intelligence that might result from

this delay is simply unacceptable for the safety of our

Nation.'' Allowing continued litigation also risks the

disclosure of highly classified information regarding

intelligence sources and methods. In addition to providing an

advantage to our adversaries, the potential disclosure of

classified information puts the facilities and personnel of

electronic communication service providers at risk.

For these reasons, we, as well as the President's other

senior advisors, will recommend that he veto any bill that

does not afford liability protection to these companies.

Substituting the Government as the Defendant in Litigation

(No. 3927). This amendment would substitute the United States

as the party defendant for any covered civil action against a

telecommunications provider if certain conditions are met.

The Government would be substituted if the FISA Court

determined that the company received a written request that

complied with 18 U.S.C. Sec. 2511(2)(a)(ii)(B), an existing

statutory protection; the company acted in ``good faith . . .

pursuant to an objectively reasonable belief'' that

compliance with the written request was permitted by law; or

that the company did not participate.

Substitution is not an acceptable alternative to immunity.

Substituting the Government would simply continue the

litigation at the expense of the American taxpayer.

Substitution does nothing to reduce the risk of the further

disclosure of highly classified information. The very point

of these lawsuits is to prove plaintiffs' claims by

disclosing classified information regarding the activities

alleged in the complaints, and this amendment would permit

plaintiffs to participate in proceedings before the FISA

Court regarding the conduct at issue. A judgment finding

that a particular company is a Government partner also

could result in the disclosure of highly classified

information regarding intelligence sources and methods and

hurt the company's reputation overseas. In addition, the

companies would still face many of the burdens of

litigation--including attorneys' fees and disruption to

their businesses from discovery--because their conduct

will be the key question in the litigation. Such

litigation could deter private sector entities from

providing assistance to the intelligence community in the

future, Finally, the lawsuits could result in the

expenditure of taxpayer resources, as the U.S. Treasury

would be responsible for the payment of an adverse

judgment. If this amendment is part of the bill that is

presented to the President, we, as well as the President's

other senior advisors, will recommend that he veto the

bill.

FISA Court Involvement in Determining Immunity (No. 3919).

This amendment would require all judges of the FISA Court to

determine whether the written requests or directives from the

Government complied with 18 U.S.C. Sec. 2511(2)(a)(ii), an

existing statutory protection; whether companies acted in

``good faith reliance of the electronic communication service

provider on the written request or directive under paragraph

(1)(A)(ii), such that the electronic communication service

provider had an objectively reasonable belief under the

circumstances that the written request or directive was

lawful''; or whether the companies did not participate in the

alleged intelligence activities.

This amendment is not acceptable. It is for Congress, not

the courts, to make the public policy decision whether to

grant liability protection to telecommunications companies

who are being sued simply because they are alleged to have

assisted the Government in the aftermath of the September

11th attacks. The Senate Intelligence Committee has reviewed

the relevant documents and concluded that those who assisted

the Government acted in good faith and received written

assurances that the activities were lawful and being

conducted pursuant to a Presidential authorization. This

amendment effectively sends a message of no-confidence to the

companies who helped our Nation prevent terrorist attacks in

the aftermath of the deadliest foreign attacks on U.S. soil.

Transferring a policy decision critical to our national

security to the FISA Court, which would be limited in its

consideration to the particular matter before them (without

any consideration of the impact of immunity on our national

security), is unacceptable.

In contrast to S. 2248, this amendment would not allow for

the expeditious dismissal of the relevant litigation. Rather,

this amendment would do little more than transfer the

existing litigation to the full FISA Court and would likely

result in protracted litigation. The standards in the

amendment also are ambiguous and would likely require fact-

finding on the issue of good faith and whether the companies

``had an objectively reasonable belief'' that assisting the

Government was lawful--even though the Senate Intelligence

Committee has already studied this issue and concluded such

companies did act in good faith. The companies being sued

would continue to be subjected to the burdens of the

litigation, and the continued litigation would increase the

risk of the disclosure of highly classified information.

The procedures set forth under the amendment also present

insurmountable problems. First, the amendment would permit

plaintiffs to participate in the litigation before the

FISA Court. This poses a very serious risk of disclosure

to plaintiffs of classified facts over which the

Government has asserted the state secrets privilege and of

disclosure of these secrets to the public. The FISA Court

safeguards national security secrets precisely because the

proceedings are generally ex parte--only the Government

appears. The involvement of plaintiffs also is likely to

prolong the litigation. Second, assembling the FISA Court

for en banc hearings on these cases could cause delays in

the disposition of the cases. Third, the amendment would

purport to abrogate the state secrets privilege with

respect to proceedings in the FISA Court. This would pose

a serious risk of harm to the national security by

possibly allowing plaintiffs access to highly classified

information about sensitive intelligence activities,

sources, and methods. The conclusion of the FISA Court

also may reveal sensitive information to the public and

our adversaries. Beyond these serious policy

considerations, it also would raise very serious

constitutional questions about the authority of Congress

to abrogate the constitutionally-based privilege over

national security information within the Executive's

control. This is unnecessary, because classified

information may be shared with a court in camera and ex

parte even when the state secrets privilege is asserted.

Fourth, the amendment does not explicitly provide for

appeal of determinations by the FISA Court. Finally,

imposing a standard involving an ``objectively reasonable

belief'' is likely to cause companies in the future to

feel compelled to make an independent finding prior to

complying with a lawful Government request for assistance.

Those companies do not have access to information

necessary to make this judgment. Imposition of such a

standard could cause dangerous delays in critical

intelligence operations and put our national security at

risk. As the Intelligence Committee recognized in its

report on S. 2248, ``the intelligence community cannot

obtain the intelligence it needs without assistance from

these companies.'' For these reasons, existing law rightly

places no such obligation on telecommunications companies.

If this amendment is part of the bill that is presented to

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

advisors, will recommend that he veto the bill.

III. Other Amendments

Imposing a Short Sunset on the Legislation (No. 3930). This

amendment would shorten the existing sunset provision in S.

2248 from six years to four years. We strongly oppose it. S.

2248 should not have an expiration date at all. The threats

we face do not come with an expiration date, and our

authorities to counter those threats should be placed on a

permanent foundation. They should not be in a continual state

of doubt. Any sunset provision withholds from our

intelligence professionals and our private partners the

certainty and permanence they need to protect Americans from

terrorism and other threats to the national security. The

intelligence community operates much more effectively when

the rules governing our intelligence professionals' ability

to track our adversaries are established and are not changing

from year to year. Stability of law also allows the

intelligence community and our private partners to invest

resources appropriately. Nor is there any need for a sunset.

There has been extensive public discussion, debate, and

consideration of FISA modernization and there is now a

lengthy factual

record on the need for this legislation. Indeed,

Administration officials have been working with Congress

since at least the summer of 2006 on legislation to modernize

FISA. There also has been extensive congressional oversight

and reporting regarding the Government's use of the

authorities under the Protect America Act. In addition, S.

2248 includes substantial congressional oversight of the

Government's use of the authorities provided in the bill.

This oversight includes provision of various written

reports to the congressional intelligence committees,

including semiannual assessments by the Attorney General

and the Director of National Intelligence, assessments by

each relevant agency's Inspector General, and annual

reviews by the head of any agency conducting operations

under Title VII. Congress can, of course, revisit these

issues and amend a statute at whatever time it chooses. We

therefore urge Congress to provide a long-term solution to

an out-dated FISA and to resist attempts to impose a short

expiration date on this legislation. Although we believe

that any sunset is unwise and unnecessary, we support S.

2248 despite its six-year sunset because it meets our

operational needs to keep the country safe by providing

needed authorities and liability protection.

Imposes Court Review of Compliance with Minimization

Procedures (No. 3920). This amendment, which was part of the

Judiciary Committee substitute, would allow the FISA Court to

review compliance with minimization procedures that are used

on a programmatic basis for the acquisition of foreign

intelligence information by targeting individuals reasonably

believed to be outside the United States. We strongly oppose

this amendment. It could place the FISA Court in a position

where it would conduct individualized review of the

intelligence community's foreign communications intelligence

activities. While conferring such authority on the court is

understandable in the context of traditional FISA collection,

it is anomalous in this context, where the court's role is in

approving generally applicable procedures for collection

targeting individuals outside the United States.

Congress is aware of the substantial oversight of the use

of the authorities contained in the Protect America Act. As

noted above, S. 2248 significantly increases such oversight

by mandating semiannual assessments by the Attorney General

and the Director of National Intelligence, assessments by

each relevant agency's Inspector General, and annual reviews

by the head of any agency conducting operations under Title

VII, as well as extensive reporting to Congress and to the

FISA Court. The repeated layering of overlapping oversight

requirements on one aspect of intelligence community

operations is both unnecessary and not the best use of

limited resources and expertise.

Expedited FISA Court Review of Challenges and Petitions to

Compel Compliance (No. 3941). This amendment would require

the FISA Court to make an initial ruling on the frivolousness

of a challenge to a directive issued under the bill within

five days, and to review any challenge that requires plenary

review within 30 days. The amendment also provides that if

the Constitution requires it, the court can take longer to

decide the issues before it. The amendment sets forth similar

procedures for the enforcement of directives (i.e., when the

Government seeks to compel an electronic communication

service provider to furnish assistance or information). This

amendment would ensure that challenges to directives and

petitions to compel compliance with directives are

adjudicated in a manner that avoids undue delays in critical

intelligence collection. This amendment would improve the

existing provisions in S. 2248 pertaining to challenges to

directives and petitions to compel cooperation by electronic

communication service providers, and we strongly support it.

Proliferation of Weapons of Mass Destruction (No. 3938).

This amendment, which would apply to surveillance pursuant to

traditional FISA Court orders, would expand the definition

of ``foreign power'' to include groups engaged in the

international proliferation of weapons of mass

destruction. This amendment reflects the threat posed by

these catastrophic weapons and extends FISA to apply to

individuals and groups engaged in the international

proliferation of such weapons. To the extent that they are

not also engaged in international terrorism, FISA

currently does not cover those engaged in the

international proliferation of weapons of mass

destruction. The amendment would expand the definition of

``agent of a foreign power'' to include non-U.S. persons

engaged in such activities, even if they cannot be

connected to a foreign power before the surveillance is

initiated. The amendment would close an existing gap in

FISA's coverage with respect to surveillance conducted

pursuant to traditional FISA Court orders, and we strongly

support it.

Exclusive Means (No. 3910). We understand that the

amendment relating to the exclusive means provision in S.

2248 is undergoing additional revision. As a result, we are

withholding comment on this amendment and its text at this

time. We note, however, that we support the provision

currently contained in S. 2248 and to support its

modification, we would have to conclude that the amendment

provides for sufficient flexibility to permit the President

to protect the Nation adequately in times of national

emergency.

IV. Expiration

While it is essential that any FISA modernization presented

to the President provide the intelligence community with the

tools it needs while safeguarding the civil liberties of

Americans, it is also vital that Congress not permit the

authorities of the Protect America Act not be allowed simply

to expire. As you are aware, the Protect America Act, which

allowed us temporarily to close gaps in our intelligence

collection, was to sunset on February 1, 2008. Because

Congress indicated that it was ``a legislative

impossibility'' to meet this deadline, it passed and the

President signed a fifteen-day extension. Failure to pass

long-term legislation during this period would degrade our

ability to obtain vital foreign intelligence information,

including the location, intentions, and capabilities of

terrorists and other foreign intelligence targets abroad.

First, the expiration of the authorities in the Protect

America Act would plunge critical intelligence programs into

a state of uncertainty which could cause us to delay the

gathering of, or simply miss, critical foreign intelligence

information. Expiration would result in a degradation of

critical tools necessary to carry out our national security

mission. Without these authorities, there is significant

doubt surrounding the future of aspects of our operations.

For instance, expiration would create uncertainty concerning:

The ability to modify certifications and procedures issued

under the Protect America Act to reflect operational needs

and the implementation of procedures to ensure that agencies

are fully integrated protecting the Nation;

The continuing validity of liability protection for those

who assist us according to the procedures under the Protect

America Act;

The continuing validity of the judicial mechanism for

compelling the assistance needed to protect our national

security;

The ability to cover intelligence gaps created by new

communication paths or technologies. If the intelligence

community uncovers such new methods, it will need to act to

cover these intelligence gaps.

All of these aspects of our operations are subject to great

uncertainty and delay if the authorities of the Protect

America Act expire. Indeed, some critical operations will

likely not be possible without the tools provided by the

Protect America Act. We will be forced to pursue intelligence

collection under FISA's outdated legal framework--a framework

that we already know leads to intelligence gaps. This

degradation of our intelligence capability will occur despite

the fact that, as the Department of Justice has notified

Congress, the FISA Court has approved our targeting

procedures pursuant to the Protect America Act.

Second, expiration or continued short-term extensions of

the Protect America Act means that an issue of paramount

importance will not be addressed. This is the issue of

providing liability protection for those who provided vital

assistance to the Nation after September 11, 2001. Senior

leaders of the intelligence community have consistently

emphasized the critical need to address this issue since

2006. See, ``FISA for the 21st Century'' hearing before the

Senate Judiciary Committee with Director of the Central

Intelligence Agency and Director of the National Security

Agency; 2007 Annual Threat Assessment Hearing before the

Senate Select Committee on Intelligence with Director of

National Intelligence. Ever since the first Administration

proposal to modernize FISA in April 2007, the Administration

had noted that meeting the intelligence community's

operational needs had two critical components--modernizing

FISA's authorities and providing liability protection. The

Protect America Act updated FISA's legal framework, but it

did not address the need for liability protection.

As we have discussed above, and the Senate Intelligence

Committee recognized, ``without retroactive immunity, the

private sector might be unwilling to cooperate with lawful

Government requests in the future without unnecessary court

involvement and protracted litigation.'' As it concluded,

``[t]he possible reduction in intelligence that might result

from this delay is simply unacceptable for the safety of our

Nation.'' In short, if the absence of retroactive liability

protection leads to private partners not cooperating with

foreign intelligence activities, we can expect more

intelligence gaps.

Questions surrounding the legality of the Government's

request for assistance following September 11th should not be

resolved in the context of suits against private parties. By

granting responsible liability protection, S. 2248 ``simply

recognizes that, in the specific historical circumstances

here, if the private sector relied on written representations

that high-level Government officials had assessed the [the

President's] program to be legal, they acted in good faith

and should be entitled to protection from civil suit.''

Likewise, we do not believe that it is constructive--indeed,

it is destructive--to degrade the ability of the intelligence

community to protect the country by punishing our private

partners who are not part of the ongoing debate between the

branches over their respective powers.

The Protect America Act's authorities expire in less than

two weeks. The Administration remains prepared to work with

Congress towards the passage of a FISA modernization bill

that would strengthen the Nation's intelligence capabilities

while respecting and protecting the constitutional rights of

Americans, so that the President can sign such a bill into

law. Passage of S. 2248 and rejection

of those amendments that would undermine it would be a

critical step in this direction. We look forward to

continuing to work with you and the Members of the Senate on

these important issues.

Thank you for the opportunity to present our views. The

Office of Management and Budget has advised us that from the

perspective of the Administration's program, there is no

objection to the submission of this letter.

Sincerely,

Michael B. Mukasey,

Attorney General.

J.M. McConnell,

Director of National Intelligence.

Mr. President, I ask unanimous consent that during the quorum call, which I am about to invoke, we not have time counted against either side as it runs.

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

The following Senators are necessarily absent: the Senator from Georgia (Mr. Chambliss), the Senator from South Carolina (Mr. DeMint), the Senator from New Mexico (Mr. Domenici), the Senator from South Carolina (Mr. Graham), the Senator from New Hampshire (Mr. Gregg), the Senator from Arizona (Mr. McCain), the Senator from Louisiana (Mr. Vitter), and the Senator from Mississippi (Mr. Wicker).

I do have a question. This is why I was trying to get the attention of the minority leader just a moment ago.

I am on the Finance Committee, and I am very familiar with the Finance Committee bill. Now, I am certain the majority leader did not mean to suggest that the proposal we were just handed is, in fact, a bill that passed the Finance Committee. It is more than that, is it not?

If I could ask just one more question, I just asked my staff. I haven't had a chance to read it yet. My staff has begun to look at it. I would simply represent what my staff said, which is the first thing they noticed is that there is an additional $1 billion--$1 billion in spending on a program called LIHEAP. Is the minority leader aware of that yet?

It would, indeed.

The majority leader would like to comment.

And there are some additional changes from the Finance Committee version as well; is that not true?

Mr. President, I think the Senator from California makes a compelling case to take up the stimulus package right away. The bill, by the way, is a 71-page bill. I do think we need a little opportunity to read through it. If, as the Senator says, there are only two or three changes to it, I am tempted to ask unanimous consent that we vote on that package tomorrow. The reason I will not is because I owe it to the majority leader to advise him in advance of making such a request, and I know what his response will be. His response, I believe, will be he has made a commitment to Senators who are campaigning for the Presidency that they will not have to come back tomorrow to vote. That is why we are not voting tomorrow. It is not that Republicans are trying to hold up things.

Yes, the minority leader made the point that since we just received the bill, we would like an opportunity to read it. I will get back to that in a moment. But the reality is, as the distinguished Senator from California said, why are we holding up work on this stimulus bill? We are not. As I said, I will be happy to move to vote on it tomorrow.

I will yield to the Senator from California.

So what is your question? What is the question?

Mr. President, the answer to the question, which is, Why don't we go to the stimulus bill; Why do we need 30 hours to read it, is, as I said, I would be happy to propound a unanimous consent request right now that we go to the stimulus bill and vote on it tomorrow. I will not do that because I know what the majority leader would say, which is, no, I will object to going to a vote on the stimulus bill tomorrow because I have told our Senate colleagues who are running for President and some others who are campaigning for them that we are not going to vote on it tomorrow. We are not going to have a vote on that, which they would miss, because it is too important. That is what he said a moment ago.

I said I would come back to the point of reading the bill, and I do want to get back to that because I do think we should read bills before we vote on them. But the key point here is that Republicans are not holding up action on this stimulus package. And for anybody on the Senate floor to suggest that we are, it is simply not the case. We voted overwhelmingly to grant cloture so we could take up the bill. I think all of the Democratic Senators voted to take up the bill. So we are on the bill. We are on the stimulus bill. But we can't vote on it because there has been a commitment to Senators who are running for the Presidency and some others that we won't vote on it tomorrow. Now, we didn't make that commitment. That commitment, I understand, was made by the distinguished majority leader. That is why I am not going to ask unanimous consent to try to embarrass people on the other side.

Let me get to the matter of reading the bill.

Well, Mr. President, I am sorry the Senator is confused, but let me continue on to make the point the Senator wanted to talk about, which is why we need to read the bill.

The bill was just handed to me by staff. I have not yet read it. It is 71 pages. Here it is. It starts out ``Strike all after the first word and insert the following.'' Well, if we are striking all after the first word, then I want to know what we are inserting. Now, the representation from Senators on the other side is that we have added $1 billion in spending on LIHEAP. There is a representation that in the bill there is an increase in the amount of mortgages that can be refinanced, and it was represented that is the same as in the House package. If that is the case, that takes the amount--I believe it is over $700,000.

I don't know a lot of low-income Americans who have mortgages of over $700,000 or mortgages up to $700,000. But as I understand it, if that is what the House bill provides for, and if that has been added to this bill, then that is what that provision would be. And the majority leader said there were some other small changes. I am not exactly sure what they are. It may be as simple as Dick and Jane, as the Senator from California said, in which case, as I said, perhaps we can go to it tomorrow. But, again, I don't think that is what the majority leader wants to do because of the commitments he has made to Senators who would have to come back here for a vote on it.

What is at work here is not that we are holding up action on the stimulus bill. What is at work here is a desire to move forward with votes on the FISA bill, which we are not on. We all voted to go to the stimulus bill, including all the members of the Democratic majority. If Members of the Democratic majority want to go on the stimulus bill, then let us consider the stimulus bill. If now the request is we just got on this, but now we want to go back to the FISA package, I wonder what it is about collecting intelligence on terrorists that is somehow less important than the stimulus bill so we can have the Senators vote on that but we can't have them vote on the stimulus package. These are both big important issues.

I don't want to come down here and engage in this tit for tat. I frankly think the American people are tired of it. They see all this bickering and they wonder why we can't get business done, why we can't get to solving these critical problems.

The Senator from California has made an eloquent plea for why we need to get out of Iraq, but we hear language like ``breathtaking irresponsibility'' and ``never worked with a President that didn't have a clue''--meaning this President doesn't have a clue--''about how to end the Iraq war. An earlier speaker said: The President wants to spy in violation of the Constitution.

Now, look, you can disagree with the President, but he doesn't want to spy in violation of the Constitution. He wants to collect intelligence on our enemies consistent with the Constitution. We can have legitimate debate and disagreement about whether what

we have done is constitutional. Some people might say no; others would say it is constitutional. But I do know this: Six months ago this body overwhelmingly--there may have been only one negative vote, I am not positive of that, but overwhelmingly--in a bipartisan vote we agreed to allow the collection of foreign intelligence under a particular regime for doing that, and it is that method of collection we want to reauthorize and we want to continue.

It is not just two Senators who decided to get together to develop a bill. By a bipartisan vote of 13 to 2 the Intelligence Committee agreed on the reauthorization and the method by which we have been collecting intelligence on our enemies for the last 6 months. Now, if we have been doing it for the last 6 months, and the Intelligence Committee by this bipartisan majority said let's keep on doing that, virtually no other changes except in one area dealing with liability protection for the communications companies, then I don't think it is fair to say this has all been done unconstitutionally. That would mean the majority, almost all Democrats, agreed to allow intelligence collection that was unconstitutional. That certainly isn't what my colleagues intended, what I intended, or what anybody else in this body intended.

So let us not say the President wants to collect intelligence that is unconstitutional and that is what we have been doing under a Senate and House-passed bill for the last 6 months. That is the kind of irresponsible debate the American people, quite frankly, are tired of.

The basic question that is before us tonight is, Shall we pass a bill that the majority leader has laid down dealing with stimulating the economy? We all just voted--virtually all of us voted--to take up the stimulus bill. We had hoped we would actually have this 3 or 4 days ago, but now we have it, and the majority leader has the absolute right to substitute what he wants us to consider, and he has done that. This is his proposal. And we have received some assurances as to what is and what isn't in it. I think we trust, but we also want to verify. As I said, it is 71 pages, but it shouldn't take that long for us to figure out whether there are other things in here other than what has been represented to us. If in fact it turns out that is the case, that all we have done is add another $1 billion in spending on the LIHEAP program, we have increased the amount of mortgages that can be refinanced up to 700 some thousand dollars--I think that is the number; I will read it here to make sure--and then some other minor changes, whatever those are, then, again, I would be perfectly happy to take up this bill tomorrow.

If I wanted to score cheap political points, I would do the same thing some on the other side have talked about, which is to say: All right, I ask unanimous consent that we take this up and vote on it. But I know there are people out campaigning. I know the majority leader has given them assurances they wouldn't have to come back for a vote on it. I respect that. It is a perfectly reasonable request. We can be taking the time now not just to ensure what is in the bill but to debate the bill, so that when we do vote on it, presumably the next day, we would have had our complete debate. It is not a waste of the American people's time for the Senate to take 1 day to debate a bill this important.

We don't have to be disagreeable about this. We can assure ourselves of what is in it and we can take tomorrow to debate it. A lot of the candidates are gone--presumably we don't want to ask them to come back to vote on it--so then we can vote on it the following day, and then take up the FISA bill, which is equally important, if not more important in terms of foreign intelligence collection. We have, what, another week or 10 days to complete work on that, with plenty of time to do it.

I think we should take a step back, not play political games here with the dueling unanimous consent requests to do something that does nothing but embarrass the other side. Let us get to the business of the American people, let us get a stimulus package voted on, let us then turn to the FISA bill and get the amendments voted on and pass that to the President before we take the work period off that we will be taking off in, what, 12 days or so.

I am very sorry. I apologize.

Mr. President, I said it was my own personal view that we would not be wasting the American people's time to have a debate on the stimulus package and to have a vote on it on Wednesday. Obviously, I am not speaking for any of my other colleagues, and we would obviously have to do that, but if the leader is concerned about not having people come back for votes tomorrow, which is a perfectly reasonable concern, given the importance of tomorrow on both sides--there are Senators who are out campaigning, and I understand that is a very important proposition--then I think it is appropriate to wait until Wednesday to have a vote on the stimulus package.

Mr. President, obviously, our colleagues are not here. I would not object to that kind of agreement. I don't know what others would do.

To be fair, did I represent the distinguished majority leader correctly, that you had assured Senators they would not be voting on the stimulus package tomorrow?

If I can respond, obviously, the majority leader knows I can't make that agreement here on the floor, but I will pass that on to the minority leader and consult with our colleagues and see what can be agreed to in terms of an agreement.

I think the majority leader is exactly correct. As a matter of courtesy to Members on both sides, it is probably

not the best idea to have votes tomorrow. It is an historic day in American history.

If I can interrupt, I don't think Senator McConnell said that. And you can have votes tomorrow. I think our Members would be perfectly fine on any votes you want to call.

Mr. President, for the reasons I expressed with the majority leader a moment ago in our colloquy, I must object at this time.

I know the Senator from New Jersey wants to speak, but since some of this was directed to my comments on the unanimous consent request, I think I should take a couple of minutes to respond.

Since we have had this discussion, let me take no more than 4 minutes. I will join the Senator in the pride he has for the Giants and their wonderful victory in my home State of Arizona yesterday. I hope a good time was had by all, including those who had their string broken.

I do wish to respond because there have been a couple suggestions made I think that are inaccurate. We are not going to come in tomorrow and have the prayer by the Chaplain and do nothing.

I hope that debate on the stimulus package is not perceived by people as doing nothing. All of us, almost all of us I think, everybody on the Democratic side voted to take up the stimulus bill. That is what we voted on an hour ago. We voted to take up the stimulus bill. Now we are on the stimulus bill.

I have not had a chance to speak on it yet. I would like to do that. Tomorrow is my opportunity. The majority leader is the one who said there would be no votes on the stimulus package tomorrow, not the Senator from Kentucky, the minority leader.

So the fact that we are not voting on the stimulus bill tomorrow has nothing to do with Republican delay. It is a commitment made by the majority leader. I have no problem with the commitment. There are people out campaigning. But that was the majority leader's decision not to vote on the stimulus bill tomorrow.

As I said, we voted for cloture for the House bill. I am happy to vote on the House bill. I do not know whether my other colleagues are going to be done debating this in 1 day tomorrow. But I do know this, we have gone to the stimulus package. We are going to be on it tomorrow. That is what we all agreed to do.

Now the assistant leader comes down and asks unanimous consent to go off the bill we voted to go on and to start voting tomorrow on some FISA amendments, some amendments to the FISA bill. He said: What a waste it would be.

Now, as everyone in this body knows, we did not vote last Wednesday, last Thursday, last Friday, not because Republican's were not ready to vote, there was no agreement on how to proceed to a FISA bill.

We have now reached that agreement. That agreement is in place. The minute we finish this stimulus package, we will move to the FISA bill. We can get that done within the next 10 days. There is no question about that. So I do not know why this constant attempt to try to put people on record, as the distinguished assistant leader said, and then to talk about 64 filibusters by Republicans.

The majority leader set a record last year in the number of cloture votes that were required in order for us to do business. When the majority leader brings up a bill and then precludes any other amendments and files cloture, we have no choice but to vote on that cloture motion. If we vote against it, it is called a filibuster. That is not a filibuster. But by the reckoning of the other side, I gather that is how they count up the number of filibusters.

Every time we vote against a cloture vote, the majority leader has required--and there is no opportunity for Republican amendments--many of those times Republicans are going to say: No, we want a chance to offer

some amendments. That is not a filibuster. Yet that is the kind of accusation that has been made here.

I want to get back to the point that surely we can have a constructive debate without constantly trying to cut each other off at the knees; that the Republican minority has taken this to an extreme, that they are not sensitive to the challenges the people face, that the Republican position is to do nothing tomorrow.

Well, we are all going to debate the stimulus package tomorrow because we all voted to debate the stimulus package tomorrow. That is not doing nothing.

I ask my colleagues again: Let's quit this business of trying to put the other side into an embarrassing position to object to something or complain that we want to do nothing or we do not care about people or that the President wants to violate the Constitution. This is the kind of thing the American people are sick of.

We voted to take up the stimulus package. Let's take it up. We will have time to read it. If it is as simple as the other side says, that is great. It is 71 pages long. But if it is pretty simple, then presumably the debate will not take all that long. Then we can turn to the FISA bill, on which we have reached an agreement.

I hope my colleagues, in moving forward, will consider the interests of the American people first and stop this bickering to try to put each other into embarrassing positions so we gain a little bit of a political advantage.

Mr. President, I am very happy now to join my colleague from New Jersey in a bipartisan exercise; that is, to congratulate the New York Giants on their victory.

I am happy to yield the floor to him at this time.

The following Senators are necessarily absent: the Senator from Oklahoma (Mr. Coburn), the Senator from North Carolina (Mrs. Dole), the Senator from Nevada (Mr. Ensign), and the Senator from Arizona (Mr. McCain).

Further, if present and voting, the Senator from North Carolina (Mrs. Dole) would have voted ``yea.''

The following Senators are necessarily absent: the Senator from Oklahoma (Mr. Coburn), the Senator from North Carolina (Mrs. Dole), the Senator from Nevada (Mr. Ensign), and the Senator from Arizona (Mr. McCain).

Further, if present and voting, the Senator from North Carolina (Mrs. Dole) would have voted ``nay.''

The following Senators are necessarily absent: the Senator from South Carolina (Mr. Graham) and the Senator from Arizona (Mr. McCain).

Mr. President, might I inquire of the Senator from Wisconsin a question. As I read the amendment, it is silent with respect to the ability of the administration to--or the appropriate authorities to redact material in the interests of protecting their sources and methods. Is it assumed in the amendment that the authority to redact would exist?

I thought I had heard the Senator indicate that redaction would be permitted, and that is the intent of the amendment; is that correct?

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

I didn't hear the last half.

Mr. President, as propounded, I object to the request, but I have no objection to Members each asking consent to which there would be no objection and certainly not to their speaking for whatever length of time or whatever order the leader would desire.

Absolutely no objection to that.

I have no objection to that.

For the reasons Senator Bond explained earlier, I object.

Mr. President, on January 21, the Nation recognized the birthday of the Rev. Dr. Martin Luther King, Jr. It is important that we honor this day and that we do not let the significance of Dr. King fade from our memories, as individuals and as a nation.

I am pleased that citizens in my State of Arizona have found ways to honor Dr. King and ensure that the lessons of his legacy continue to resound among future generations. This past weekend the Senate Chaplain, Dr. Black, joined me in Phoenix for a number of events relating the King commemoration. Dr. Black preached two sermons and later delivered the keynote address at the Dr. Martin Luther King, Jr. Youth Scholarship service, a candlelight ceremony at Pilgrim Rest Baptist Church.

It is very fitting that these events took place in churches. Dr. King, after all, was a minister, and his speeches and writings invoked biblical themes and were delivered with the zeal of a fiery evangelist. Moreover, by recognizing Dr. King in a place of worship, we are reminded of the important role that religion plays in the public square.

Indeed, the events like those I attended in Phoenix highlight the importance that religious institutions play in civic life, and I believe they embody an important past of Dr. King's legacy.

Alexis de Tocqueville observed long ago that ``Freedom sees religion as the companion of its struggles and triumphs, the cradle of its infancy, and the divine source of its rights. Religion is considered as the guardian of mores, and mores are regarded as the guarantee of the laws and pledge for the maintenance of freedom itself.''

Religion is an essential underpinning to a well-ordered society and a functioning democratic republic. The Founders of our country understood that, and Dr. King did too.

In his famous ``I have a dream'' speech, Dr. King invoked the words of the Declaration of Independence. On August 28, 1963, he told the throngs who had gathered on The Mall, ``I have a dream that one day this Nation will rise up and live out the true meaning of its creed: `We hold these truths to be self-evident: that all men are created equal.'''

King believed, as the Founders wrote in the Declaration, that we are created equal and endowed with the right to life and liberty by our Creator. King's speech could have very well been delivered to a congregation at a church instead of before thousands at the Lincoln Memorial.

In his message at the King celebration in Phoenix, Dr. Black urged the congregation to remember some will seek to destroy the dream and dreamer, but God will frustrate their plans.

These words echo what King said at the Lincoln Memorial almost 40 years ago, ``With this faith, we will be able to work together, to pray together, to struggle together, to go to jail together, to stand up for freedom together, knowing that we will be free one day.''

Mr. President, it is imperative that we as Americans understand the bond between religion and freedom, and I was pleased to attend the King celebration services this past weekend that testified to this bond.

Mr. President, first, I join those who welcomed our new colleague, Roger Wicker from Mississippi, to the Senate. I know he will serve his State and this Nation with distinction.

Mr. President, I wish to mention and thank specifically our Chaplain, ADM Barry Black, for coming to Arizona this past weekend to join in celebrations relating to the Martin Luther King activities that occurred. After preaching three sermons and attending a couple other major events associated with Martin Luther King celebrations, Chaplain Black was right back here to open our session today. He certainly deserves our thanks and has my gratitude for joining us in Arizona.

Mr. President, I also wish to pick up on what our Republican leader has just been talking about: that we can, with bipartisanship, accomplish a great deal in this Senate and that there is no better place to start than on the Foreign Intelligence Surveillance Act. In the Senate, we refer to that by its acronym, FISA, but it needs to be our first important piece of business.

Certainly, our intelligence community, to whom we have given a very big responsibility, needs certainty with respect to its responsibilities and its rights. It needs permanency, not just 1-month extensions. This intelligence community must know the rules of the road. That is why it is so important for us to, within the next week or so, reauthorize the Foreign Intelligence Surveillance Act with a few additional changes to ensure that we can, in fact, collect this intelligence on our enemies.

Theodore Roosevelt once referred to his opportunities in life and said the greatest opportunity was work worth doing. And there is no more work worth doing than ensuring that we can gain the intelligence on the enemy that attacked us in this war.

We are at war, both at home and abroad. These radical militant Islamists have attacked us, and they continue to threaten us. We all know that the best approach to defeating them is good intelligence and that most of that intelligence, by necessity, is collected overseas-- that is why it is called foreign intelligence--and that the basis for the collection of much of this intelligence is the FISA law, or the Foreign Intelligence Surveillance Act. As noted, that act expires next week, and that is why it is important for the Senate to act now and the reason this reauthorization is actually very simple and straightforward and very interesting.

Technology has actually outpaced the law. What we found is that we are now able to collect intelligence in ways that were never understood when the FISA law was first written nearly 30 years ago. As a result, we need to change that law to accommodate the intelligence collection capabilities we have today.

Before we changed the law last year, U.S. intelligence agencies had lost about two-thirds of their ability to collect communications intelligence against al-Qaida. Obviously, in this war, we cannot cede two-thirds of the battlefield to our enemy, to the terrorists.

When we enacted the Protect America Act last summer, we regained that capability to collect communications intelligence against al-Qaida by conforming the legal procedures to the technology that is available to us. Let there be no doubt that the collection of this information, as a result of that work, is critical to our Nation's security. In fact, in a New York Times op-ed on December 10, Michael McConnell, the Director of National Intelligence, noted that ``[i]nformation obtained under this law has helped us develop a greater understanding of international Qaeda networks, and the law has allowed us to obtain significant insight into terrorist planning.''

Similarly, on October 31 of this year, Kenneth Wainstein, the Assistant Attorney General in charge of the Justice Department's National Security Division, testified before the Judiciary Committee that ``since the passage of the [Protect America] Act, the Intelligence Community has collected critical intelligence important to preventing terrorist actions and enhancing our national security.''

This is important business. It is work worth doing.

The Intelligence Committee, in a very bipartisan way, crafted an extension of the foreign Intelligence Committee legislation.

The Judiciary Committee, on which I sit, took a much more partisan approach. The Judiciary Committee bill has a lot of flaws that the Intelligence Committee bill does not have. Let me mention a couple of those flaws, suggesting to my colleagues that the bill we should start with as our base bill is the Intelligence Committee bill, not the bill that came out of Judiciary Committee.

One of the things the Judiciary Committee bill does is it includes an ``exclusive means'' provision that would undermine intelligence gathering directed at foreign terrorist organizations. The provision not only uses vague terms whose mention is unclear, it also appears to preclude use of other intelligence-gathering tools that have already proven to be valuable sources of intelligence about al-Qaida.

As the official Statement of Administration Policy for this bill notes:

The exclusivity provision in the Judiciary Committee

substitute ignores FISA's complexity and its

interrelationship with other federal laws and, as a result,

could operate to preclude the Intelligence Community from

using current tools and authorities, or preclude Congress

from acting quickly to give the Intelligence Community the

tools it may need in the aftermath of a terrorist attack in

the United States or in response to a grave threat to the

national security.

Another serious flaw of the Judiciary Committee bill is it has a provision that would limit FISA overseas intelligence gathering--to quote the legislation itself--

. . . to communications to which at least one party is a

specific individual target who is reasonably believed to be

outside the United States.

The problem, of course, is it is not always possible to identify such a specific individual in our intelligence collection.

And finally let me respond generally to those who would dismiss or ignore the harm done to our national security by applying layer after layer of bureaucratic hurdles to foreign intelligence investigations. These restrictions, for example, that the Judiciary bill would impose, matter in our agents' ability to collect this intelligence. We know they can undermine critical investigations because we have seen it happen in the past, and let me cite an example that makes this point.

In the 1990s, the Justice Department determined--well, first of all, it imposed this infamous wall that segregated foreign intelligence and criminal investigations. It determined it was necessary to do this to protect constitutional rights, but it went well beyond what the FISA law itself required. These rules were created by individuals, and they prevented criminal and intelligence agents who were chasing after the same suspects from cooperating with each other, even sharing information with each other and with the other agents. So the FBI and the CIA had a very difficult time talking to each other. This was part of the criticism of the 9/11 Commission after that horrible event.

Well, a few years after this wall was built, in the summer of 2001-- note the date, summer 2001--an FBI agent in the Bureau's New York field office became aware that Khalid al-Mihdhar, Nawaf al-Hazmi, and two other bin Laden-related individuals were present in the United States. They were here. This agent knew these men had been at an important al- Qaida meeting in Kuala Lumpur, Malaysia, and instinctively understood they were dangerous. The agent initiated a search for these men and sought the help of criminal investigators who have much greater access to resources for finding people in the United States. This search was probably the best chance the United States had of disrupting or potentially stopping the September 11 attacks.

This FBI agent was literally on the trail of the 9/11 hijackers in the summer of 2001. But what happened when the agent sought to enlist the help of criminal investigators and the full resources of the FBI? Well, the agent ran into this legal wall separating criminal and intelligence investigations, and he was repeatedly told criminal investigators could not aid in the investigation. Finally, after being repeatedly rebuffed in requests for assistance in searching for Khalid al-Mihdhar and the other hijackers, the agent sent the following, disturbingly prophetic, e-mail to FBI headquarters in August 2001. August 2001.

Whatever has happened to this, someday someone will die

and, wall or not, the public will not understand why we were

not more effective in throwing every resource we had at

certain problems.

Well, the officials who created the intelligence investigation wall in the 1990s, and who thereby undercut the search for al-Mihdhar and the other hijackers, at least had one excuse. In the summer of 2001, few people appreciated the threat the Nation faced from al-Qaida. Few realized how devastating an al-Qaida terrorist attack could be and how many innocent people could be killed.

Today we have no such excuses. We have already suffered one horrific al-Qaida attack, and we know much worse attacks are possible. We now know what is at stake. Yet despite this knowledge, some in this body are proposing we repeat the mistakes of the past; that we create new walls and other arbitrary legal procedures to the surveillance of al- Qaida. We know from hard experience terrorist plots are hard to detect, and we don't get many chances to stop them. We know what a terrible loss of life a terrorist attack can inflict.

We know if another terrorist attack occurs, there will be multiple reviews and investigations that will identify what went wrong, what opportunities were missed, and who was responsible. Members who are thinking about supporting the Judiciary Committee bill should think hard about the consequences of enacting a set of arbitrary limits on the surveillance of al-Qaida. If that substitute is enacted, it is likely to undermine future critical intelligence investigations, just as the wall

between intelligence and criminal investigations undermined the search for the 9/11 hijackers. Future investigations will uncover exactly what went wrong, and we will be held accountable for our actions.

I urge my colleagues to reject the Judiciary Committee substitute and vote to ensure our intelligence agents have the tools they need to confront the threat posed by al-Qaida and other foreign terrorist organizations.

The following Senators are necessarily absent: the Senator from Arizona (Mr. McCain), the Senator from South Dakota (Mr. Thune), and the Senator from Virginia (Mr. Warner).

Madam President, about exactly 21 years ago, after I had been elected to the House of Representatives from the State of Arizona, my wife Caryll and I came to Washington and almost immediately met Trent and Tricia Lott. In fact, we have a photograph that is displayed in our home with Trent and Tricia on which Trent made a wonderful inscription.

I learned from the very beginning that Trent Lott was a leader--a leader in the House of Representatives and a leader among his colleagues. I have been following Trent Lott ever since as House whip, as Senate whip, as Senate Republican leader, and as a colleague in battles too numerous to mention.

Chaplain Black began this morning asking that we come here to serve. No State has ever been served better than by their representative Trent Lott. He always puts Mississippi first, yet always is able to balance his devotion to his constituents with the national interest and with his responsibilities in representing his colleagues.

That he came to serve, again to use the Chaplain's word, is best illustrated by his decision to run for reelection a year ago. Many of us knew Trent had come to believe that he had to prioritize his family responsibilities and had concluded it was about time for him to leave public service. But the catastrophe of Hurricane Katrina hit the coast of Mississippi, destroying not only the Lotts' home in Pascagoula but so many of the homes and businesses of his friends in Mississippi. It did not take Trent too long in pondering what he faced to conclude that he owed it to his constituents in Mississippi to continue to use his skills in Washington, DC, to represent them, to help them recover from the devastation that had been visited upon them. It was this service, after he had already concluded that his time had come to move out of public service, that I think illustrates perhaps better than anything else his devotion to the people of Mississippi, to his friends there. He did not decide to leave the Senate until his work was done, and for that the people of Mississippi, I know, will be forever grateful to Trent Lott.

Trent has always been known as being a person who has been able to find the common ground among his colleagues. That is a very special skill. Some people call it dealmaking. Some people talk about it in terms of the art of compromise, frequently talking about Trent's ability to move across the aisle and to work with friends on both the Democratic and Republican side.

I think his ability to do this, which is unprecedented in my 21 years in Washington or unequaled, I should say, is due to a variety of qualities. First, Trent's intelligence; second, his boundless energy; third, his knowledge of the institutions, of both the House and the Senate. Again, I know of no equal in terms of the knowledge of how these bodies work and how we can achieve great things by working with people in both bodies.

His knowledge of the nature of man--this is something my father taught me and I have tried to learn from people such as Trent Lott-- what makes people tick--you can find that common ground and achieve great things if you understand people. I think that is one of Trent's greatest qualities and one which will be missed in this body. And, of course, his commitment to what he has always believed was right for Mississippi and America. Also contributing to his success is his faith, and it sustained him more than we will ever know. And finally, of course, his family.

It is interesting that everybody who has commented about Trent's service in the Senate has quickly moved to also comment about his commitment to his family and in particular his wonderful wife Tricia. It has to say something when that is one of the first things people think of when they think of you. I know if that is the way Trent is remembered, he will be a very happy man.

Trent Lott has been serving almost his entire adult life. The people of Mississippi, the people of America, his colleagues in the House and Senate, and I have been honored to serve with Trent for 21 years. I have learned a lot. Most importantly, I have enjoyed my time with Trent, especially quiet time.

Now it is time for Trent to serve his family more in accordance with his priorities, and no one can argue that he has not earned that right.

So Trent Lott, a man for all seasons--Representative, Senator, servant, leader, husband, father, and grandfather, proud American and Mississippian and friend--thank you. God bless you.

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

Mr. President, I ask unanimous consent in advance if I exceed the 10 minutes under morning business that I be allowed to continue unless a colleague comes here wishing to speak.

Mr. President, we are in a little bit of a lull here before we reach the final conclusion of this session of this Congress. But much of the debate is revolving around two pieces of legislation, one of which has been at least temporarily removed from the floor, the reauthorization of the Foreign Intelligence Surveillance Act, and the other one which is critical for us to act upon before we can leave Washington, DC, and return to our home States, and that is the ability to fund the troops whom we have sent on missions abroad in places such as Afghanistan and Iraq.

That funding has basically come to an end. The Defense Department has had to rob Peter to pay Paul, moving money from different accounts in the Defense Department in order to pay the ongoing effort of our troops. That is not the right way, the most efficient way, to ensure that our troops have what they need when they are fighting abroad. It is critical that we get the funding to the troops. The President has had a request out now for more than 10 months to try to get the funding on an emergency basis to them. Our minority leader will have an amendment later on this afternoon that will seek to add money to fund the troops, at least through sometime next spring. It is critical that we achieve that objective. That is the critical piece of business we have to attend to before we can leave.

I thought, in connection with both of those national security issues, that some comments that our friend, the former Speaker of the House of Representatives, Newt Gingrich, made back in September to the American Enterprise Institute were of special relevance and we might well consider

some of the things he said in thinking about how to move forward with this funding. Representative Gingrich said that to some extent the debate we are having right now is the wrong debate about what is necessary to defeat our enemy and win the war against the terrorists. The bottom line is, it cannot be done on the cheap. War is kill or be killed. You risk everything in war. As a result, what we have to do is think anew about the kind of bold effort and difficult undertaking this really entails. It does entail real risks, and we have to recognize that there are significant requirements for change in the way we operate.

Congress can't continue to provide money, just dole it out a few weeks at a time, hoping that will be sufficient for the troops. They have to be able to count on Congress to back them when we send them on a mission.

To some extent, as Representative Gingrich said, it is important to adopt a spirit that in some cases it is better to make a mistake of commission and then fix the problem than it is to avoid achievement by avoiding failure. In this regard, we have to have a national dialog about the true threat we are facing from this irreconcilable wing of Islam and what is necessary for us to defeat it, both in the ongoing conflicts in Afghanistan and Iraq as well as other places around the world where intelligence becomes our key tool in helping to defeat the enemy.

One of the things Speaker Gingrich did was to refer to some remarks Daniel Pipes, an expert on the Middle East, made about Islamists. He made it clear that they have significant assets at their disposal. They have potential access to weapons of mass destruction, a religious appeal that provides deeper resonance and greater staying power than the artificial ideologies of fascism and communism. They have an impressively conceptualized and funded and organized institutional machinery. They have an ideology capable of appealing to Muslims of every size and shape anywhere in the world. This is problematic. Finally, these militant Islamists have a huge number of committed cadres, some estimate as many as 10 percent of the Muslim population of the world, which, of course, is a far greater total than all of the fascists and communists combined who ever lived. As Daniel Pipes would say, this is a significant and impressive array of assets and potential against the Western world against which these Islamists have declared war.

Specifically, with reference to the intelligence I mentioned we have to focus on, the CIA Director, GEN Michael Hayden, testified a couple of months ago about his own judgment of these strategic threats facing the United States. Among the things he said was that our analysis with respect to al-Qaida is that its central leadership is planning high- impact plots against the U.S. homeland. They assess this with high confidence. So this is not just a guess about what might happen. With high confidence, they believe al-Qaida is planning high-impact plots against our homeland, focusing on targets that would produce mass casualties, dramatic destruction, and significant economic aftershocks. So our very survival as a free people is challenged by this large threat, and defeating it on a worldwide basis is inherently going to involve a very large effort, a degree of change we have yet to face.

We need a debate about the genuine risk to America of losing cities to nuclear attack or losing millions of Americans to engineered biological attacks. We also need a very calm dialog about the genuine possibility of a second Holocaust if the Iranians were to get nuclear weapons and use them against Tel Aviv or Haifa or Jerusalem.

All of these larger issues are sometimes lost in the debate about arcane provisions of something like the Foreign Intelligence Surveillance Act that we are seeking to reauthorize. We have to keep in mind what the object is. We have to defeat a very capable enemy which not only has the means but the will to defeat us in a war literally to the end.

We also need some realistic examination of the progress--or lack thereof--we are making in the larger war. I think we have to realistically assess where we are with respect to that. In the last year or so, Hamas has won an enormous victory in Gaza; Hezbollah has won a substantial victory in south Lebanon; Iran, Syria, Lebanon, Afghanistan, the Taliban sanctuary in the Waziristan, substantial instability in Pakistan, even in the Philippines and, to some extent, even in Great Britain. The estimates of terrorist sympathizers and potential sympathizers are far greater than the resources being applied to monitor them.

Again, to summarize this point with respect to intelligence surveillance, we have, even here in the United States, the spread of a militant extremist radical vision. It is funded by money from the Middle East, including Saudi Arabia. It is on the Internet, on television, it is in extremist mosques and schools. This advocacy of martyrdom, of jihad, suicide bombing, and violence against a modern civilization is not restricted to places abroad; it exists even in the United States.

At the end of our conflict in Iraq and of the debate about our intelligence collection activities, there is a simple test, and that is whether a free people are celebrating because the American people have sustained freedom against evil or, God forbid, violent evil enemies of freedom are celebrating because Americans have been defeated. Life would be easier if there was a more modulated answer, but there is not.

In war, there is a winner and a loser. If the American people will sustain this effort, we will win. But if American politicians decide to legislate defeat, then, of course, America could be defeated.

I yield the floor.

Mr. President, on behalf of several Republican Senators, I object.

I would also note that I believe there may be one other unanimous- consent request, and I would be happy to suspend while that is made and then conclude my remarks in 3 minutes. I think the Senator from Rhode Island would like to speak, or I can go ahead and conclude, and then the Senator from Ohio could make his request--whatever the pleasure of the leader is.

I will conclude in about 3 minutes.

Mr. President, the point I was making is this: It is easy to lose sight of the larger objective when we get down into the details of specific legislation, as we must do. It is important to understand it and to get it right, but we also have to keep our eye on the ball. To mix metaphors, you have to look at the forest and not get drawn down into the trees too much. The forest here is a very dangerous enemy which means to do us harm. They have the means to do it. They have the will to do it. We are fighting them in two different kinds of conflicts. We are fighting them in hot war in Afghanistan and Iraq. It is a serious proposition. Young men and women have been sent to these places to do battle, to lay their lives on the line to carry out the mission on behalf of the American people to secure those places for liberty. Not all of them will come home. Not all of them will come home without casualty. This is serious business. It requires our full attention, with a knowledge of the nature of the threat.

We cannot send them to do this job without being willing to provide them the funding they need to sustain their effort. Part of the debate today is ensuring that at least for the next 4 months, they will have enough money to get the job done.

By the same token, we have an enemy all over the world, including in the United States, which is plotting, our intelligence community assesses with high confidence, to carry out a devastating attack if they have the opportunity to do so. It is critical that we use the assets we have available to collect intelligence against these organizations and people wherever they are. The best way to defeat the radical Islamists who mean to do us harm is to prevent it in the first place. That is what good intelligence allows us. That is why it is important for us to reauthorize the Foreign Intelligence Surveillance Act.

My point is, on two of the great issues that are before us today, we have a violent enemy that needs to be defeated. The best way to do that is to support our troops and our intelligence agencies and the men and women who are carrying out the missions we have asked of them in defeating this enemy.

We have to understand the threat and understand that in America, in this great democratic Republic of ours, the American people are the center of gravity in any war. It is their support that is needed in order to achieve victory.

Our young men and women on the battlefield and our people serving us in the intelligence community are counting on us, the representatives of the American people, to see to it that they have what they need to carry out their missions.

Mr. President, I rise today to comment on section 691 of the Consolidated Appropriations Act, 2008. This provision amends section 212(d)(3)(B) of the Immigration and Nationality Act in order to allow the executive to make REAL ID immigration bars inapplicable to individuals or groups whose presence in this country would not pose a threat to the United States, while continuing to bar from the United States all persons who are tied to the worst terrorist organizations. The provision also gives automatic exemptions to the Hmong and Montagnard soldiers who fought alongside the United States during the Vietnam war, providing overdue relief to the members of these armies. And section 691 also designates the Taliban as a Tier I terrorist organization for immigration purposes, effectively eliminating exceptions to the applicability of REAL ID immigration bars for members, combatants, and others tied to the group that harbored Al Qaeda at the time when that organization was plotting the terrorist attacks of September 11, 2001.

Section 691 is the result of a negotiated compromise between Senator Leahy and me a compromise that was encouraged and assisted by Senator Coleman and other Members who have taken an interest in this issue. The final language allows the Secretaries of Homeland Security and State to decide that the barriers to entry and stay in the United States in section 212(a)(3)(B) of the INA do not apply to certain individuals or groups. The language also clarifies that such non-applicability determinations are not subject to judicial review.

Under current law, the REAL ID immigration bars can only be deemed non-applicable to an alien if the alien is a representative of a political or social group that endorses terrorism, has himself endorsed terrorism, or has given material support to a terrorist group, and may only be extended to a group if that group is a Tier III group that only has a subgroup that engages in terrorism. The amendment expands the non-applicability determination authority to all terrorism-related bars, except that the bars cannot be deemed non-applicable if an alien is expected to engage in future terrorism, is a member or representative of a Tier I or II group, voluntarily and knowingly engaged in terrorist activity or endorsed terrorism on behalf of a Tier I or II group, or has voluntarily and knowingly received military-type training from a Tier I or II group. Also, no group nonapplicability determination may be applied to a group that attacks democratic countries or intentionally engages in a practice of attacking civilians.

Section 691's expansion of section 212(d)(3)(B) nonapplicability authority generally draws a line between Tier I and II terrorist organizations, on the one hand--groups which have been designated as Foreign Terrorist Organizations by the State Department or other agency of the Federal Government--and Tier III organizations, on the other hand, which are swept into the definition of ``terrorist organization'' as a result of their conduct. The State Department's FTO list includes some of the most bloodthirsty terrorist organizations on the planet. The list includes groups such as al-Qaida, Hamas, Hezbollah, and the Salafist Group for Call and Combat. By precluding non-applicability determinations with regard to persons tied to these groups, section 691 not only helps to protect the U.S. homeland from terrorism--it also contributes to making these groups radioactive in the foreign countries where they are based. Joining or helping one of these groups or accepting military training from them will bar an individual from ever being allowed to enter or reside in the United States, in all cases and without exception. And making these groups radioactive makes it more difficult for them to recruit members or to carry out terrorist attacks.

Information that has been developed in hearings before the Senate Judiciary Committee explains why it is imperative that the United States discourage individuals from providing any type of aid or material support to foreign terrorist organizations. In an April 20, 2005, hearing before the Terrorism Subcommittee, for example, Barry Sabin, the Chief of the Counterterrorism Section of the Justice Department's Criminal Division, explained how the provision of material aid to terrorist groups is critical to the functioning of these organizations. Mr. Sabin noted:

We know from experience that terrorists need funding and

logistical support to operate. They need to raise funds, open

and use bank accounts to transfer money, and to communicate

by phone and the Internet. They need travel documents. They

need to train and recruit new operatives, and procure

equipment for their attacks.

It is also important to emphasize that all provision of material support to terrorist organizations is bad. There is no such thing as ``good'' aid to a terrorist organization, because all aid is fungible and can be converted to evil purposes, and because even humanitarian aid can be used by a terrorist organization to help it to recruit new members. These points were developed in detail in answers to written questions provided by Chris Wray, the Assistant Attorney General for the Criminal Division, following a May 5, 2004, hearing before the Judiciary Committee. Mr. Wray explained why there is no such thing as benign material support to a designated foreign terrorist organization:

First, because material support of any kind is fungible and

frees up resources that may then be used to promote violence,

the provision of any material support facilitates and

furthers the organization's unlawful and violent activities

regardless of the benign intent of the donor. As the Ninth

Circuit recognized in rejecting the argument that 18 U.S.C.

section 2339B is unconstitutional because it proscribes the

giving of material support even if the donor does not have

the specific intent to aid in the organization's unlawful

purposes, ``Material support given to a terrorist

organization can be used to promote the organization's

unlawful activities, regardless of donor intent. Once the

support is given, the donor has no control over how it is

used. Humanitarian Law Project v. Reno, 205 F. 3d 1130, 1134

(2000).

Even support designed and intended to encourage a group to

pursue lawful, nonviolent means to achieve its ends may be

used to further the organization's violent aims.

[S]ome terrorist organizations use their humanitarian

activities as an integral part of an overall program that

includes murdering innocent civilians and assassinating

government officials. For example, one expert on terrorist

organizations, Matthew Levitt, describes in ``Hamas from

Cradle to Grave,'' Middle East Quarterly, Winter 2004, at 3-

15, that this foreign terrorist organization is one unified

body, and that its social welfare organizations, supported by

numerous charities, answer to the same leaders who set Hamas

political and terrorist policy. Levitt describes how Hamas

charity committees, mosque classes, student unions, and sport

clubs serve as places where Hamas activists recruit

Palestinian youth for terrorist training courses in Syria and

Iran, or for suicidal terrorist attacks. And, he discusses

how a single soccer team from the Jihad mosque in Hebron has

produced several Hamas terrorists responsible for five

suicide bombings in 2003.

Even more frightening, Levitt explains how Hamas charities,

social service organizations, hospitals, schools, and mosques

openly laud suicide bombings. Hamas-run schools and summer

camps begin indoctrinating children as early as kindergarten

for later use as suicide bombers. As Levitt notes,

Palestinian children raised in this environment make willing

terrorist recruits. This program is accomplished in

significant part by the multi-faceted nature of Hamas, which

gains strength through its humanitarian and charitable

activities in the community.

Thus, even if individuals are providing material support,

such as money, for groups like the Hamas, and are somehow

able to ensure that this money is spent by these FTOs only

for humanitarian activities, such as a school, the problem

remains that this money enables these groups to gain more

general support, loyalty, and popularity among the local

people and to earn a measure of legitimacy. This support and

legitimacy then allows groups such as Hamas to recruit

suicide bombers, as well as accomplices to provide critical

services such as transportation, lodging, and local

intelligence for terrorist operations. Accordingly, even

those who are providing material support with the sincere

hope and assurance that their money is not being used

directly for terrorism are nevertheless providing groups such

as Hamas with the type of overall support they need in order

to operate successfully as terrorists.

Section 691 of the Consolidated Appropriations Act also bars the extension of a non-applicability determination to any alien who has voluntarily and knowingly received military-type training from a Tier I or II terrorist organization. Again in his April 20, 2005, testimony before the Terrorism Subcommittee, Counterterrorism Section Chief Barry Sabin explained why individuals who have received such training are dangerous to the United States and why an individual's participation in such training benefits the terrorist organization. Mr. Sabin explained:

Various investigations have uncovered individuals who have

traveled overseas to training camps to receive military-style

training. These individuals, who in many cases have received

firearms and explosives training, appear to be preparing to

conduct terrorist activity or violence and pose a clear

threat here and abroad. Investigations have also disclosed

that attendees sometimes maintain longstanding relationships

with other training camp ``alumni,'' who may later seek to

recruit and utilize them in their plots. In an even more

basic way, a trainee's participation in a terrorist

organization's training camp, without more, benefits the

organization as a whole. By attending a camp, an individual

lends critical moral support to other trainees and the entire

organization, a support that is essential to the health and

vitality of the organization.

Section 691 also clarifies that the decision to extend or to not extend a non-applicability determination to a particular group or individual is not subject to judicial review. A decision as to whether a particular individual or group that would otherwise be within the scope of a section 212(a)(3)(B) bar should instead be deemed outside the scope of that bar is a decision that is inherently executive in nature. Such a decision will often involve consideration of classified information that would be compromised if litigated in open court, and it will involve sensitive judgments about which terrorist groups are more dangerous than others.

Vesting this discretion solely in the executive allows executive officers to consider the full range of information about a particular group that is available to the State Department, the Justice Department, Homeland Security, and to intelligence agencies. It allows the executive to decide that some groups are less dangerous and therefore the REAL ID bars may be deemed to not apply to activities tied to that group, and that other groups are extremely dangerous and that even tenuous connections to such a group should serve as grounds for exclusion, with no exceptions allowed.

Were decisions about nonapplicability to be made in the courts, their precedent-based system of decisionmaking would require the courts to extend the same ``rights'' to members of one group as had extended to the last group whose case was reviewed. What is sufficient to justify a nonapplicability determination with regard to the FARC in Columbia, for example, would also be good for al-Qaida. By keeping these non- applicability decisions out of the courts, section 691's amendments to INA section 212(d)(3)(B) allow the Government to take the common-sense approach of treating different groups differently based on how violent they are and how much of a threat they pose

to the United States. For that reason, section 691 does not allow judicial relief from an executive determination. Rather, it is the executive alone that will decide whether a bar should be inapplicable-- that it should not even apply to the alien in the first instance.

Subsection (b) of section 691 statutorily exempts several groups from the definition of ``terrorist organization'' for purposes of INA section 212(a)(3)(B). These groups--which include Hmong and Montagnard groups that fought alongside the United States in the Vietnam War--have already been cleared by the administration and do not pose a threat to the United States. This subsection will immediately resolve any legal ambiguity as to these groups' status.

Subsection (c) of section 691 corrects a technical error in the original REAL ID Act. With this change, the otherwise-automatically- deportable spouse or child of a barred alien is not barred if the spouse or child did not know of the husband/father's terrorist activity or has renounced that activity.

Subsection (d) designates the Taliban as a Tier I terrorist organization for immigration purposes. As a result of the distinctions drawn in subsection (a) of section 691, this designation will render individuals tied to the Taliban ineligible for most waiver authority.

Subsection (e) requires a report by the Department of Homeland Security on the use of its authority to waive material-support bars on grounds of duress.

Subsection (f) makes all of these changes apply retroactively.

I think that section 691 reaches a reasonable compromise that allows removal of the applicability of the REAL ID immigration bars for groups and individuals to whom those bars should not apply, but allows REAL ID to continue to protect the United States and its citizens from foreign terrorist organizations. I would like to thank Tim Rieser of Senator Leahy's staff, and Jennifer Daskal, on detail to Senator Leahy, for working with my staff to draft this section. Whom to exclude from the United States for terrorism-related reasons is a difficult and very serious matter, and one that I am glad has been the subject of a carefully developed bipartisan compromise in this bill.