Floor Statements

Mr. President, with the enactment of bipartisan Freedom of Information Act, FOIA, reform legislation late last year, Congress demanded and won more openness and accountability in monitoring the activities of our Government. But, regrettably, just weeks after this historic open government legislation was signed into law, there are troubling signs from the Bush administration regarding how this law will be enforced.

Last week, the President buried a provision in the administration's fiscal year 2009 budget proposal that would move the functions of the new Office of Government Information Services, OGIS, which was created under the OPEN Government Act, from the independent National Archives and Records Administration to the Department of Justice. The President's proposal is not only contrary to the express intent of the Congress, but contrary to the very purpose of this legislation--to ensure the timely and fair resolution of American's FOIA requests.

The Office of Government Information Services was established to, among other things, mediate FOIA disputes between Federal agencies and FOIA requestors, review and evaluate agency FOIA compliance and house the newly established FOIA ombudsman. When Senator Cornyn and I drafted the OPEN Government Act, we intentionally placed this critical office in the National Archives, so that OGIS would be free from the influence of the Federal agency that litigates FOIA disputes--the Department of Justice. We also placed OGIS in the apolitical National Archives to enhance this office's independence, so that all Americans can be confident that their FOIA requests would be addressed openly and fairly.

Given the clear intent of Congress to establish OGIS as an independent office in the National Archives, the President's budget proposal should not--and cannot--go unchallenged. What's more, given the Justice Department's own abysmal record on FOIA compliance--a recent Bureau of National Affairs Daily Report for Executives article found that the Justice Department's Office of Information Policy is burdened by increasing FOIA backlogs--it is simply unfathomable that this agency would be entrusted with overseeing the processing of American's FOIA requests.

When the Congress unanimously passed the OPEN Government Act just a couple months ago, Democrats and Republicans alike joined together in promising the American people a more open and transparent government. I intend to work to ensure that that this was not an empty promise, but one that will be honored and fulfilled.

I call on all Members of Congress, on both sides of the aisle and in both Chambers, to join with me to ensure that the Office of Government Information Services is promptly established and fully funded within the National Archives. The American people have waited for more than a decade for this office and for the other historic FOIA reforms contained in the OPEN Government Act. They should not be forced to wait any longer.

Mr. President, I ask unanimous consent that a copy of a letter from a coalition of more than 40 different open government organizations that strongly oppose moving the Office of Government Information Services to the Department of Justice be printed in the Record.

Congress must work to beat back the administration's ill-advised attempts to undermine the intent of Congress in a bill that this President signed into law. In the coming weeks and months, I will be working with other advocates of FOIA in the Senate to do just that.

Will the Senator yield for a question?

Will the Senator yield for a question?

Mr. President, will the distinguished majority leader yield for a question from me?

Mr. President, I tried to get the distinguished Republican leader to yield, but he was unwilling.

Let me ask the distinguished majority leader, is it not a fact that these public, spirited telephone company owners are threatening to turn off wiretaps, according to the press accounts, that have been legally ordered through search warrants because the U.S. Government has failed to pay them millions of dollars, and does not pay them the millions of dollars? I just wonder if any of the legislation we are talking about might be mandating our own Government to pay the bills for the wiretaps.

I ask that only because it seems this public spiritedness goes one way if they want to be immunized or the administration wants to be immunized from anybody asking them questions, but it goes a different way if it comes down to the question of getting paid.

Thank you, Mr. President.

Mr. Presdient, this Report contains a provision that reinforces the prohibition against our Government engaging in torture. It expressly prohibits interrogation techniques that are not authorized by the United States Army Field Manual. By passing this bill, we will not only respond to this administration's ambiguity about torture by reiterating that it is off the table, we will be sending a message to the world that the United States is a country that does not tolerate torture. Whether waterboarding is torture and illegal does not depend on the circumstances.

When it comes to our core values--that which makes our country great and defines America's place in the world--it does not depend on the circumstances. America, the great and good Nation that has been a beacon to the world on human rights, does not torture and should stand against torture.

Let me be clear. This provision should not be necessary. Waterboarding, and other forms of torture, are already clearly illegal. Waterboarding has been recognized as torture for the last 500 years. President Teddy Roosevelt prosecuted American soldiers for waterboarding more than 100 years ago. We prosecuted Japanese soldiers for waterboarding Americans during World War II.

I support this provision, despite the fact that there is no question that waterboarding is already illegal, because this administration has chosen to ignore the law. They have admitted they have engaged in waterboarding, otherwise known as water torture, and they refuse to say they will not do it again. The positions they have taken publicly on this subject are, I believe, so destructive to the core values of this Nation and our standing in the world, that this Congress should say, again--very clearly--that our Government is not permitted to engage in these shameful practices.

Tragically, this administration has so twisted America's role, laws and values that our own State Department and high-ranking officials in our Department of Justice cannot say that waterboarding of an American is illegal. If an enemy decided to waterboard an American soldier, they can now quote statements from high officials in our own Government to support their argument that the technique breaks no laws. That is how low we have sunk.

Our top military lawyers and our generals and admirals understand this issue. They have said consistently that waterboarding is torture and is illegal. They have told us again and again at hearings and in letters that intelligence gathered through cruel techniques like waterboarding is not reliable, and that our use and endorsement of these techniques puts our brave men and women serving in the armed forces at risk. That is why they have so explicitly prohibited such techniques in their own Army Field Manual, and it is an example that the rest of the Government should follow.

So, despite the fact that the law is already clear, I urge the Senate to pass this provision, and I urge the President to promptly sign it into law, making the policy of our Nation clear. Our values cannot permit this to be an open question. We must put an end to the damage that this administration's positions have caused to our standing and the risks that they have taken with the safety of American citizens and soldiers around the world.

I move to lay that motion on the table.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Amendment No. 3907

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

Madam President, what is the parliamentary situation?

Madam President, the Foreign Intelligence Surveillance Act FISA is intended to protect our national security. It is also intended to protect the privacy and civil liberties of Americans. The law was passed to protect the rights of Americans after the excesses of an earlier time.

We are debating amendments to this important law. I had hoped the Senate would act to improve the bill reported by the Select Committee on Intelligence. It has not. I had hoped the Senate would incorporate improvements included in the House-passed RESTORE Act and the bill reported by the Senate Judiciary Committee. It has not.

I had hoped the administration would work with us. It has not. Instead, having gotten exactly the bill they want, in the way they want, from the Intelligence Committee, they have threatened a Presidential veto if we improve this bill in any way or fix its flaws.

I had hoped that Republican Senators would work with us as we have worked together to amend FISA dozens of times over the last 30 years and to update it in more than a dozen ways even since September 11, 2001. But instead of working in a bipartisan fashion, as I have seen before in my 34 years in the Senate, in an unprecedented way, Republicans voted lockstep to table the Judiciary Committee improvements and virtually lockstep against every individual amendment and improvement.

Worse, the Republican leadership has stalled action on the measure for weeks. They continue to insist it is their way or no way. Sadly, with the acquiescence of even some on this side of the aisle, they have controlled the debate, the bill, and the final result in the Senate.

Working together we could have done so much better. I look forward to working with the House to make improvements that are needed to this measure before I can support it.

The process has been, in large part, a repeat of that which led to the so-called Protect America Act last summer. That ill-conceived measure was rushed through the Senate in an atmosphere of fear and intimidation just before the August recess, and after the administration had broken their word and reneged on agreements reached with congressional leaders. The bill was hurriedly passed under intense partisan pressure from the administration. It provided sweeping new powers to the Government to engage in surveillance, without a warrant, of calls to and from the United States involving Americans, and it provided no meaningful protection for the privacy and civil liberties of Americans who were on those calls.

I was here when we first passed FISA because we knew what happened when we had an out-of-control administration. We saw it during the Watergate years. We saw it with J. Edgar Hoover. We saw those who wiretapped people because they didn't like what they said, they disagreed with the administration; they actually raised questions about the Vietnam war. Sometimes it would help if everybody read a history book every now and then around here. Some seem too willing to give up the liberties for which we fought.

The Senate should have considered and incorporated more meaningful corrections to the so-called Protect America Act. Before that flawed bill passed, Senator Rockefeller and I and several others in the House and Senate had worked hard and in good faith with the administration to craft legislation that solved an identified problem but also protected Americans' privacy and liberties.

We all want to protect our security. We all want the ability to go after those who would do this country harm. And we drafted legislation that would have taken care of the problem they told us about.

But just before the August recess, we got a call. Basically, the Director of National Intelligence told us they could not keep their word, they could not keep the administration's word, and the administration decided to ram through its version of the so-called Protect America Act, with excessive grants of Government authority and without accountability or checks and balances. They refused to consider any other way.

After almost 6 years of breaking the law and violating FISA through secret warrantless wiretapping programs, that was wrong. A number of us supported a better balanced alternative, and we voted against the Protect America Act as drafted by the administration and passed by the Senate.

Ironically, the reason we were even voting on it is that the press found out how the administration was breaking the law. Even though the administration was required by statute to tell leaders in Congress what they were doing, which was a clear violation of the law, they had failed to do that. Fortunately, we still have some remnant of a free press in this country and they found it out.

Because of a sunset provision, we had a chance to revisit that matter and correct it. The Judiciary Committees and the Intelligence Committees of the Senate and the House spent the past months considering changes to FISA. In the Senate Judiciary Committee, we held open hearings and countless briefings and meetings to consider new surveillance legislation, including classified meetings. We considered legislative language in a number of open business meetings of the committee, and we reported a good bill to the Senate. This was before last Thanksgiving.

Instead of that bill, a good bill, the Senate is poised to pass a bill that will permit the Government to review more Americans' communications with little in the way of meaningful court supervision.

I support surveillance targeting foreign threats, but I wanted to make sure we protect those American liberties that, after all, we fought a Revolutionary War to protect and a civil war and two World Wars and not just give it away because some people around here get cold feet when threatened by the administration.

Attorney General Mukasey said at his nomination hearing that ``protecting civil liberties, and people's confidence that those liberties are protected, is a part of protecting national security.'' I agree with him about that. That is what the Senate judiciary bill would have done.

The administration insists on avoiding accountability by including blanket retroactive immunity in their bill. It would grant blanket retroactive immunity to telecommunications carriers for their warrantless surveillance activities from 2001 through earlier this year contrary to FISA and in violation of the privacy rights of Americans.

The administration violated FISA by conducting warrantless surveillance for more than 5 years. They got caught. Frankly, if they had not gotten caught, they would probably still be doing it. When the public found out about the President's illegal surveillance of Americans, the administration and telephone companies were sued by citizens who believed their privacy and their rights were violated.

So now the administration is trying to get this Congress to terminate those lawsuits. But don't believe the crocodile tears of this administration, saying they are doing it to protect these telephone companies. This is, after all, the same administration that owed the telephone companies millions of dollars in unpaid bills for wiretapping. They will not even pay their bills.

No, the reason they want this provision is to protect those in the administration who broke the law. They don't want anybody to find out which members of the Department of Justice so thwarted the law in writing cockamamie legal opinions that a first-year law student would see through. They want to insulate themselves from accountability. I am not going to support such an end run around accountability.

The administration knows these lawsuits may be the only way that it is ever going to be called to account for its flagrant disrespect of the law. In running its illegal program of warrantless surveillance, the administration relied on legal opinions prepared in secret and shown to only a tiny cabal of like-minded officials.

This ensured that the administration received the advice they wanted. Don't tell us what the law is; tell us what we want the law to be. I used to read my children ``Alice in Wonderland.'' Now I read my grandchildren ``Alice in Wonderland.'' This sounds like ``Alice in Wonderland.''

Jack Goldsmith, a conservative Republican who came in briefly to head the Justice Department's Office of Legal Counsel, described the program as a ``legal mess.'' This administration does not want a court to have a chance to look at this legal mess, and retroactive immunity will assure not that they are protecting telephone companies, but that they will cover their own backsides. They want to protect themselves.

The rule of law is fundamentally important in our system, and so is protecting the rights of Americans from unlawful surveillance. I do not believe Congress can or should seek to take those rights and those claims from those already harmed. As I said, I worked with Senator Specter and both Senators Feinstein and Whitehouse to try to craft more effective alternatives

to retroactive immunity. We worked with the legal concept of substitution, replacing Government in the shoes of private defendants that acted at its behest. Let it assume full responsibility for the illegal conduct.

Substitution would have protected the telephone companies. It would have placed the administration in their shoes in the lawsuits. But the truth is that the administration doesn't really care about the telephone companies. They are worried only about the American public finding out what they did illegally, how they violated the laws and the Constitution of this country.

I also supported Senator Feinstein's proposal to strengthen the role of the FISA Court in this regard. The administration and its allies in the Senate defeated both of these viable alternatives to retroactive immunity. The administration, by trying to frighten people, warded off all efforts of compromise and accommodation. They don't want to be held accountable, and they have enough Senators who will protect them so they will not be held accountable--not to the Congress or, more importantly, to the American people.

The Senate was forced to vote on retroactive immunity even though not all Senators had access to the information they needed to make an informed judgment about the Government's and the phone companies' conduct. The majority leader wrote to the administration last year urging such access, and I supported it. Of course, we got had no response. The administration ignored the request. After all, if we knew what we were doing around here, we might actually make them stand up and be responsible for their actions, which is the last thing in the world they want. It is clear they do not want to allow Senators or anyone else to evaluate their lawlessness. Their rule is no accountability. Whether it is Scooter Libby or anyone else, no accountability. We will protect those who break the law on our behalf.

I have drawn very different conclusions from Senator Rockefeller about retroactive immunity. I agree with Senator Specter and many others that blanket retroactive immunity, which would end ongoing lawsuits by legislative fiat, undermines accountability.

Senator Specter has been working diligently, first as chairman of the Judiciary Committee and now as ranking member, to obtain judicial review of the legality of warrantless wiretapping of Americans from 2001 until last year. The checks and balances the judiciary provides in our constitutional democracy has an important role to play. Every one of us, if we follow our oath of office, should want to protect that. Judicial review can and should provide a measure of accountability.

I believe protecting the rule of law is important, and I believe in protecting the rights of Americans from unlawful surveillance. I do not believe the Congress can or should seek to take those rights and those claims from those already harmed. Moreover, ending ongoing litigation eliminates the only viable avenue of accountability for the Government's illegal actions.

Therefore, I say again, I oppose retroactive immunity. There should be a measure of accountability for the administration's actions in the years following 9/11. If it is simply a case of protecting the telephone companies, then why don't we vote for something that would put the Government in their shoes? Why don't we? Because that is the last thing in the world this administration wants because then they would have to answer to how many different people in the Bush administration broke the law.

I don't believe anybody is above the law. I don't believe the President is; I don't believe a Senator is; I don't believe anybody is. Keep in mind, as I said earlier, why we have FISA. Congress passed that law only after we discovered the shameful abuses of J. Edgar Hoover's FBI. Through the COINTEL Program--sometimes called COINTELPRO--Director Hoover spied on Americans who objected and spoke out against the war in Vietnam. I objected and spoke out against the war in Vietnam. Many Vermonters opposed that war. I wonder how many Vermonters were spied on for daring to speak out against it.

Ironically, Madam President, in April of 1975, the United States Senate voted by a one-vote margin in the Armed Services Committee to stop the war in Vietnam. A year later, it was hard to find anybody in this body who had supported it, although obviously an awful lot of Senators had.

Well, I wonder if we are going to look back that same way someday and ask: were we so frightened by 9/11 that we were willing to throw away everything this country fought for, everything that has made this country great through our history?

We can protect Americans' rights. We can protect those things our forefathers fought a revolution to obtain, that we fought a civil war to protect, that we fought two world wars to cement. We can protect ourselves. But we cannot protect ourselves if we do not protect our rights. Are we going to throw our rights away because of a group of terrorists? This Senator is not going to.

Let us show the American people and the world what America stands for. We can and will do all we can to secure the future for ourselves, our children, and our grandchildren. At the same time, we can protect the cherished rights and freedoms that define America and make this country different from all others. Those are the rights and freedoms that protected past generations and allow us to have an American future. If we do not protect them, what will we leave to our children and grandchildren?

Let us stand up for American values. Let us not be afraid to preserve our freedom while protecting our national security.

Madam President, I retain the remainder of my time, and I suggest the absence of a quorum.

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

Madam President, I ask unanimous consent that the vote on passage of S. 2248, as amended, occur at 5:30 p.m. today, notwithstanding rule XII, paragraph 4, and that the time specified in the previous order remain in effect, with the time from 5:10 to 5:30 equally divided and controlled between the leaders, with the majority leader controlling the final 10 minutes.

Madam President, I yield back the remainder of my time, and I suggest the absence of a quorum.

Madam President, the bill we are now considering will provide an enormous expansion of the government's ability to conduct warrantless surveillance. I support providing our intelligence agencies with the flexibility they need to surveil foreign targets that may be intending us harm, but we must be similarly vigilant in making certain that this surveillance is limited to its intended scope.

I commend Senator Feingold in crafting an amendment that would prohibit what is known as ``reverse targeting'' and would ensure that this new surveillance is directed only toward its overseas targets and not toward surveillance of innocent Americans without a court order. The Intelligence Committee's bill, S. 2248, requires the government to seek an order from the FISA Court only when ``the'' purpose of the government's acquisition is the targeting of Americans inside of the United States. I fear that the government will read into this language a loophole and it may justify eavesdropping on American's private communications, without any court order, as long as they have some interest in an overseas ``target,'' even if a significant purpose of the interception is to collect the communications of a person in the United States. Is this fear legitimate? I think so, given this administration's history of convoluted, disingenuous legal interpretation. We must be clear in our language, because we know what they will do if we are not.

Senator Feingold's provision would clarify that if the government intercepts the communications of a person overseas but ``a significant purpose'' of the surveillance is to collect the communications of the U.S. person with whom the person overseas is communicating, the government must get a court order. This is an important distinction. In light of the sweeping powers we are granting to the government to conduct surveillance without up front court review, we must also cabin the scope of the government's power to eavesdrop on the communications of innocent Americans.

amendment no. 3915

The authorities and procedures in S. 2248 would permit the FISA Court to review government targeting and minimization procedures. If, however, the Court finds certain aspects of those procedures to be inadequate--even grossly inadequate--S. 2248 provides no authority to restrict the use of information already collected using those procedures. That means that the government would be free to access, use, and share information about private communications that was collected in violation of the law.

Senator Feingold's amendment would ensure that the Court has the authority to stop a continuation, and perhaps escalation, of the harm caused by the government's use of illegal procedures. This provision would limit the government's use and dissemination of illegally obtained information if the FISA Court later determines that the procedures were not reasonably designed to target people outside of the United States or to adequately minimize the use of information about U.S. persons. It is important to note that, under this provision, if the government acts to address the Court's concerns and correct these procedures it would then be free to use and disseminate the information it acquired.

This is not a novel application of law under FISA. FISA's existing emergency provision holds that if the government begins emergency surveillance without a warrant, and the FISA Court then determines the surveillance to be unlawful, the government cannot use and disseminate the information it acquired except under very limited circumstances. Senator Feingold's amendment simply applies these reasonable safeguards to the new and broadly expanded authority we are now giving to the government. This provision represents a crucial safeguard for the protection of Americans' privacy rights.

amendment no. 3927

I strongly oppose the blanket grant of retroactive immunity in the Intelligence Committee bill. This administration violated FISA by conducting warrantless surveillance for more than 5 years. They got caught. If they had not, they would probably still be doing it. In the wake of the public disclosure of the President's illegal surveillance of Americans, the administration and the telephone companies are being sued by citizens who believe their privacy and constitutional rights have been violated. Now, the administration is trying to force Congress to terminate those lawsuits in order to insulate itself from accountability. We should not allow this to happen.

The administration knows that these lawsuits may be the only way that it will ever be called to account for its flagrant disrespect for the rule of law. In running its illegal program of warrantless surveillance, the administration, relying on legal opinions prepared in secret and shown to only a tiny group of like-minded officials, ensured the administration received the advice they wanted. Jack Goldsmith, who came in briefly to head the Justice Department's Office of Legal Counsel described the program as a ``legal

mess.'' This administration does not want a court to have the chance to look at this legal mess. Retroactive immunity would assure that they get their wish.

The Judiciary Committee and Intelligence Committee tried for well over a year and a half to obtain access to the information that our members needed to evaluate the administration's arguments for immunity. Indeed, over a year ago Chairman Specter was prepared to proceed to subpoena information from the telephone companies in light of the administration's stonewalling. It was only just before the Intelligence and Judiciary Committees' consideration of this bill that committee members finally obtained access to a limited number of these documents. Senators who have reviewed the information have drawn very different conclusions.

Now this matter is before all Senators and it is well past time for all Members to have access to the information they need to make informed judgments about the provisions of these bills. The majority leader wrote to the administration stating that Members of the Senate need that access. We have had no response--the administration has ignored the request. It is clear that they do not want to allow Senators to appropriately evaluate these documents and draw their own conclusions.

There are reports in the press that at least one telecommunications carrier refused to comply with the administration's request to cooperate with the warrantless wiretapping. All Senators should have the opportunity to know these facts, so they can make an informed judgment about whether there were legitimate legal concerns that other cooperating telecommunications companies should have raised. Indeed, if other carriers had been more careful in their legal analysis, and had raised these concerns, would the administration have had a greater incentive to come to the Congress and get the law changed? Would we have been spared five long years of illegal behavior by this administration?

I have drawn very different conclusions than Senator Rockefeller about retroactive immunity. I agree with Senator Specter and many others that blanket retroactive immunity, which would end ongoing lawsuits by legislative fiat, undermines accountability. Senator Specter has been working diligently first as the chairman of the Judiciary Committee and now as its ranking member to obtain judicial review of the legality of the warrantless wiretapping of Americans from 2001 into last year. The check and balance the judiciary provides in our constitutional democracy has an important role to play and should be protected. Judicial review can and should provide a measure of accountability.

We hear from the administration and some of our colleagues that we must grant immunity or the telephone companies will no longer cooperate with the Government. Senators should understand that even if we do not grant retroactive immunity, telecommunications carriers will still have immunity for actions they take in the future. Their cooperation in the future will still be required by legal orders and they will not be subject to liability for doing what the law requires. If they follow the law, they have immunity.

We have heard some people argue that the telephone companies should get immunity because they complied with the Government's requests to engage in warrantless surveillance out of patriotism. I do not doubt the patriotism of the executives and employees of these companies, but this month we learned that these companies cut off wiretaps, including wiretaps of terrorists, because the FBI failed to pay its telephone bills. How can this administration talk repeatedly, on the one hand, about the importance of FISA surveillance, and on the other hand, fail to pay its phone bills and jeopardize this critical surveillance. But beyond that, the fact that carriers were willing to cut off surveillance when they were not paid--presumably some of the same carriers that agreed to conduct warrantless surveillance--undercuts the argument about their patriotic motives.

As one former FBI special agent has said, ``It sounds as though the telecoms believe it when the FBI says the warrant is in the mail, but not when they say the check is in the mail.''

I believe the rule of law is important in protecting the rights of Americans from unlawful surveillance. I do not believe that Congress can or should seek to take those rights and those claims from those already harmed. Moreover, ending ongoing litigation eliminates perhaps the only viable avenue of accountability for the Government's illegal actions. Therefore, I say again: I oppose blanket retroactive immunity.

I do support and will vote for the amendment that Senators Specter and Whitehouse will offer on ``substitution.'' This amendment would place the Government in the shoes of the private defendants that acted at its behest and let it assume full responsibility for illegal conduct. The Specter-Whitehouse amendment contains an explicit waiver of sovereign immunity, which will allow the lawsuits to proceed against the United States, and it makes other changes designed to assure that the Government does not have advantages as a defendant that the carriers would not have. While I see no need to deal with the issue of lawsuits against the providers in this Congress, I believe that substitution is a fairer means of dealing with these lawsuits than full retroactive immunity, because it would give the plaintiffs their day in court, and it would allow for a measure of accountability for the administration's actions in the years following 9/11.

This administration violated FISA by conducting warrantless surveillance for more than 5 years. They got caught, and the telecommunications carriers got sued. Now, the administration insists that those lawsuits be terminated by Congress, so that it does not have to answer for its actions. Retroactive immunity does more than let the carriers off the hook. It shields this administration from any accountability for conducting surveillance outside of the law. It would stop dead in their tracks the lawsuits that are now working their way through the courts, and leave Americans whose privacy rights have been violated with no chance to be made whole. These lawsuits are perhaps the only avenue that exists for an outside review of the Government's actions. That kind of assessment is critical if our Government is to be held accountable. That is why I do not support legislation to terminate these legal challenges and I will vote to strike it.

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

Mr. President, it has now been nearly 10 months since the horrific incident at Virginia Tech resulted in the tragic deaths of 32 students and faculty members, and serious injuries to many other innocent victims. During that time, we have witnessed a barrage of new incidents involving threatening conduct and, too often, deadly acts of violence at our schools and college campuses nationwide.

Just in the last few days tragedy has struck at one of our Nation's high schools and on a university campus. Today's press reports indicate that a student at Mitchell High School in Memphis, TN, is in critical condition after a violent incident in the school's cafeteria. Just this past Friday, a female student killed two other women, and then herself, inside a classroom on the campus of Louisiana Technical College in Baton Rouge. This terrible incident could easily have been even more deadly: there were nearly 20 people in the classroom at the time.

The Senate has so far failed to take up and pass the School Safety and Law Enforcement Improvement Act of 2007, S. 2084, which the Judiciary Committee reported last September to help improve school safety. This comprehensive legislation should be considered and passed without further delay.

In originating the bill over 6 months ago, the Judiciary Committee showed deference to Governor Tim Kaine and the task forces at work in Virginia, and sought to complement their work and recommendations. Working with several Senators, including Senators Boxer, Reed, Specter, Feingold, Schumer, and Durbin, the committee originated this bill and reported it at the start of the 2007 academic year. My hope was that Congress would adopt these critical school safety improvements last fall.

Since this bill passed out of the Judiciary Committee, we have seen tragedy at Louisiana Technical College, Delaware State, University of Memphis, SuccessTech Academy in Cleveland, OH, as well as incidents in California, New York, Pennsylvania, and Oregon, to name just a few. I, again, urge the Senate to proceed to consider this comprehensive package of school safety measures. It includes sensible yet effective safety improvement measures supported by law enforcement across the country. We should be doing all that we can to help.

Last October, a troubled student wearing a Fred Flintstone mask and carrying a rifle through campus was arrested at St. John's University in Queens, NY, prompting authorities to lock down the campus for 3 hours. The day after that incident, an armed 17-

year-old on the other side of the country in Oroville, CA, held students hostage at Las Plumas High School, also resulting in a lock- down. Around that same time, an armed student suspected of plotting a Columbine-style attack on fellow high school students was arrested in Norristown, PA. The students in these situations were lucky and escaped without injury.

University of Memphis student Taylor Bradford was not so lucky. He was killed on campus last September in what university officials believe was a targeted attack. He was 21 years old. Shalita Middleton was not so lucky. She died last October from injuries she sustained during the Delaware State incident. She was 17 years old. Nathaniel Pew was not so lucky. He was wounded at Delaware State. High school teachers Michael Grassie and David Kachadourian and students Michael Peek and Darnell Rodgers--all of whom were wounded by a troubled student at SuccessTech Academy last October--were not so lucky. And the two female students killed this past Friday in Baton Rouge were not so lucky.

The School Safety and Law Enforcement Improvement Act responds directly to incidents like these by addressing the problem of violence in our schools in several ways. The bill authorizes Federal assistance for programs to improve the safety and security of our schools and institutions of higher education, provides equitable benefits to law enforcement serving those institutions including bulletproof vests, and funds pilot programs to develop cutting-edge prevention and intervention programs for our schools. The bill also clarifies and strengthens two existing statutes--the Terrorist Hoax Improvements Act and the Law Enforcement Officers Safety Act--which are designed to improve public safety.

Specifically, the bill would improve the safety and security of students both at the elementary and secondary school level and on college and university campuses. The K-12 improvements are drawn from a bill that Senator Boxer introduced last April, and I want to thank Senator Boxer for her hard work on this issue. The improvements include increased funding for much-needed infrastructure changes to improve security as well as the establishment of hotlines and tip-lines, which will enable students to report potentially dangerous situations to school administrators before they occur.

These improvements can save lives. After the four students and teachers were wounded at SuccessTech Academy, the press reported that parents had been petitioning to get a metal detector installed and additional security personnel added, and that the guard who was previously assigned to the school had been removed 3 years ago. In fact, at the time, the entire city of Cleveland had just 10 metal detectors that rotated throughout the city's more than 100 schools. Title I of the bill would enhance the ability of school districts to apply for and receive grant money to fund the installation of metal detectors and the training and hiring of security personnel to keep our kids safe.

To address the new realities of campus safety in the wake of Virginia Tech and more recent college incidents, title I also creates a matching grant program for campus safety and security to be administered out of the COPS Office of the Department of Justice. The grant program would allow institutions of higher education to apply, for the first time, directly for Federal funds to make school safety and security improvements. The program is authorized to be appropriated at $50,000,000 for the next 2 fiscal years. While this amounts to just $3 per student each year, it will enable schools to more effectively respond to dangerous situations on campus.

The bill would also make sworn law enforcement officers who work for private institutions of higher education and rail carriers eligible for death and disability benefits, and for funds administered under the Byrne Grant program and the bulletproof vest partnership grant program. Providing this equitable treatment is in the best interest of our Nation's educators and students and will serve to place the support of the Federal Government behind the dedicated law enforcement officers who serve and protect private colleges and universities nationwide. I commend Senator Jack Reed for his leadership in this area.

The bill helps law enforcement by making improvements to the Law Enforcement Officers Safety Act of 2003, LEOSA. These amendments to existing law will streamline the system by which qualified retired and active officers can be certified under LEOSA. It serves us all when we permit qualified officers, with a demonstrated commitment to law enforcement and no adverse employment history, to protect themselves, their families, and their fellow citizens wherever those officers may be.

The bill focuses on prevention as well, by incorporating the PRECAUTION Act at the request of Senators Feingold and Specter. This provision authorizes grants to develop prevention and intervention programs for our schools.

Finally, the bill incorporates the Terrorist Hoax Improvements Act of 2007, at the request of Senator Kennedy.

The Senate should move forward and act. The Virginia Tech Review Panel--a body commissioned by Governor Kaine to study the Virginia Tech tragedy--recently issued its findings based on a 4-month long investigation of the incident and its aftermath. This bill would adopt a number of recommendations from the Review Panel aimed at improving school safety. We must not miss this opportunity to implement these initiatives nationwide, and to take concrete steps to ensure the safety of our kids. I hope the Senate will promptly move forward to invest in the safety of our students and better support law enforcement officers across the country by considering and passing the School Safety and Law Enforcement Improvement Act of 2007.

Mr. President, the bill we are now considering gives the executive branch unprecedented authority to conduct warrantless surveillance. It would permit the government, while targeting overseas, to review more Americans' communications with less court supervision than ever before. I support surveillance of those who might do us harm, but we also have to protect Americans' civil liberties. One of the most important ways to provide that balance is to ensure a meaningful role for the courts in supervising this new authority.

Unfortunately, the Protect America Act severely diminished the Foreign Intelligence Surveillance Court's role as a check and balance on the executive branch. Under the Protect America Act, the FISA Court cannot conduct oversight over whether the executive branch is complying with the ``minimization'' rules that are a crucial protection for Americans whose communications are incidentally picked up by government surveillance of overseas targets. Judicial oversight of how these safeguards are working is

a critical protection of the privacy of U.S. persons in this area.

I want to praise Senator Whitehouse, who as member of both the Judiciary Committee and the Select Committee on Intelligence did so much work to reverse the courts diminished role and to craft this fundamental provision. His amendment, which was part of our Judiciary bill, would ensure that the FISA Court has the authority it needs to assess the Government's compliance with minimization procedures, to request the additional information it needs to make that determination, and to enforce compliance with its orders. It would make certain that the FISA Court has a meaningful role in overseeing this new surveillance authority.

Minimization procedures are a key protection--indeed virtually the only protection--for the privacy of the conversations of people in the United States that are ``incidentally'' collected as part of this broad new surveillance authority. These could well be completely innocent Americans who happen to be talking to someone overseas. FISA Court oversight of minimization procedures is critical. Without this amendment, the FISA legislation would allow the court to review minimization procedures, but it would not give authority to assess whether the government is complying with those procedures, nor would it permit the court to take any action to correct failure to comply with those procedures. This is a crucial amendment and I urge Senators on both sides of the aisle to support it.

Mr. President, will the Senator yield to me? I was going to ask that I be allowed to proceed, I don't think it will be more than 5 or 6 minutes, as though in morning business to give a eulogy, with the time not to be taken from either side.

Of course. I understand.

Mr. President, first, I might say, in this debate the Senator from Wisconsin is absolutely correct. I was there during some of the debate on this issue and I know what he means.

(The remarks of Mr. Leahy are printed in today's Record under ``Morning Business.'')

Mr. President, I support providing the Government with the flexibility it needs to conduct important surveillance of overseas targets. Both the Intelligence Committee's and the Judiciary Committee's versions of this bill would allow the Government to intercept all communications of overseas targets, including those communications with people inside of the United States. However, this also means that the Government will necessarily be acquiring the communications of innocent Americans.

I commend Senators Feingold, Webb, and Tester for crafting an amendment that will help to safeguard the privacy rights of innocent Americans whose communications are acquired during the surveillance of overseas targets. This new FISA legislation will grant the Government authority to conduct surveillance on overseas targets concerning ``foreign intelligence.'' This term covers a broad range of subjects and the new authority would permit the Government great latitude to intercept communications without a court order. Once Americans' communications are collected, they can be shared widely with other agencies. This Feingold-Webb-Tester provision permits unfettered acquisition of foreign-to-foreign communications and of communications of suspected terrorists into or out of the United States while creating safeguards for communications not related to terrorism that

the Government knows have one end in the United States. If the Government is not able to determine beforehand whether a communication will be into or out of the United States, it can acquire all of those communications without prior court approval. What this amendment does is add the very reasonable protection that if it is later determined that a communication involves a person in the United States, measures will be taken to segregate that information to assure that privacy is protected appropriately. There are exceptions even then to make sure that national security is never placed at risk. If the communication involves terrorism or a suspected terrorist, if someone's safety is at stake, the Government can then access, analyze and disseminate that communication.

This amendment is an important check to ensure that the new authority we will grant with this bill is used as intended. Without it, many law- abiding Americans who communicate with completely innocent people overseas will be swept up in this new form of surveillance, with virtually no judicial involvement or oversight.

Mr. President, I think we all recognize that this legislation would provide broad and untested new powers to the executive branch. We are willing to do that in order to protect our national security. But this surveillance does not just affect foreign targets; it also affects the privacy rights of potentially millions of American citizens. That is why it is so important that we get this right. And that is why I support Senator Cardin's amendment, which would reduce the sunset provision of this bill from 6 years to 4 years.

We are dealing with untested procedures; we have no assurance that what we are doing now will properly protect national security or the privacy rights of Americans. Many questions remain about how the new authorities that Congress is prepared to grant will be implemented, whether they will be effective, and--equally important--the extent to which they will intrude on innocent conversation of Americans. As we understand more about these authorities--and perhaps as technology allows us to improve our approach to this important surveillance--the executive branch and the Congress should reevaluate these sensitive authorities.

There is too much here that is new and untested to allow the authorities to go longer than even expiration of the next President's term before requiring a thorough review. A 4-year sunset makes sense. It will allow the next President 3 years of experience under these authorities to monitor how these new powers are being carried out. And it is an appropriate time for the Congress to evaluate whether the legislation strikes the right balance between national security needs and Americans' civil liberties.

Madam President, I remember being on the Senate floor on September 12, 2001. That was the day after the horrendous attack on our Nation. It was the only time in my 33 years here that I can remember the public galleries being closed. There was an unprecedented amount of security around the Capitol. But every Senator came onto the floor of the Senate that day. We wanted to indicate to the world that this symbol of democracy would not close. I especially remember

that the closed visitors galleries, however, contained two people: former Ambassador James Spain and my wife Marcelle.

This memory, and so many more, came back to me in January of this year when Ambassador Spain's son Stephen informed me that my dear friend Jim had died on January 2 in Wilmington, NC.

It is hard to think of anyone in public life I have met during my years as a Senator who is as memorable as Jim Spain. He has touched me with his dignity, his sense of humanity, and his honesty as no one else could. He was the truest of public servants--one who cared for his country and those his position influenced actually more than he cared for himself.

I first met Jim decades ago when he was the Ambassador to Turkey and I visited him in Ankara. Even though Turkey was under military rule at that time, he invited people from across the political spectrum to meet with the two of us at his residence. It was there I saw the abilities of one of the finest Ambassadors to ever represent our great country as he brought these sometimes adversaries together to talk in what he called his ``game room'' or play room.

Turkey was under a dusk-to-dawn curfew at that time, but I had to leave in the middle of the night to get back to the United States. Jim arranged for a military escort to take me and to open the airport so that my military plane I was using could leave. I still remember ``His Excellency,'' as so many of the Turks called him, waving goodbye from his front door in his pajamas, his bathrobe, and his slippers about 2 a.m.

We kept in close touch when he returned to Washington, through his ambassadorship in Sri Lanka and later retirement. He and Marcelle and I once sat up talking half the night when he was a guest in our house. After every one of these meetings, I would tell others that I felt I had been with a close member of my own family and my conscience had been touched in a very special and very helpful way.

I wish every member of the Foreign Service could read Ambassador Spain's book entitled ``In Those Days.'' I was privileged to write, along with John Kenneth Galbraith and Father Andrew Greeley, a cover blurb for that book. In my blurb I said:

From boyhood glimpses of a strutting Al Capone, to post-war

Japan, a stint with the CIA, and a fascinating foreign

service career--this is a life worth living. History is

shaped by extraordinary people like Ambassador Spain. His

Irish eloquence makes the difficult look easy while his

humanity touches your soul.

Another wrote:

Jim Spain's contribution in assisting CIA Director Allen

Dulles to make President Eisenhower get the pronunciation of

Prime Minister Nehru's first name right during the latter's

official visit to Washington is a typical foreign service

moment. ``Heady stuff for a 28-year-old,'' noted Jim Spain.

Even today I cannot pronounce former Prime Minister Nehru's first name correctly. I cannot think of the number of times when traveling with Ambassador Spain he whispered in my ear to make sure I got the names correct.

In the end, it was his humanity that touched us all. It was as though his great intelligence and ability was only the pedestal to allow the humanity to shine through.

Tissa Jayatilaka--and I do wish Ambassador Spain was here to make sure I come anywhere close to pronouncing this name correctly--wrote:

News reached us over the weekend past that Jim Spain's time

on earth had run out. Heaven knows this world of ours cannot

afford to do without human beings of his caliber and yet

there is only so much that an individual can do for humanity

before he, too, moves unto the dusty descend.

Ambassador Spain was one of the most decent, gentle,

caring, and perceptive human beings I have known to-date.

He was unfailingly generous and kind to his fellow-

companions on this bittersweet journey on earth that we

travel on for a while. It was indeed a privilege to have

worked with him briefly and shared a long and fruitful

friendship with him thereafter.

I first came to know him during my days in The Colombo Plan

Bureau in the 1980s. He had arrived in Colombo some time in

1985 to head the U.S. Mission here. Until then, Sri Lanka was

the only South Asian country he had not lived in before.

He was to make up for this in the years ahead, when in

1989, consequent to his retirement from the U.S. foreign

service, he made Sri Lanka his home.

This decision of Ambassador Spain was all the more

remarkable because the last several years of the 80s was a

period when most Sri Lankans were seeking to run away from

their land of birth.

Jim Spain not only stayed behind, but also did a great deal

discreetly to assist this beleaguered country of ours to save

itself from self-destruction.

This person goes on to write:

. . . It was several years later that I came to know that

only a couple of years prior to his coming to Colombo that

Ambassador Spain himself had suffered a monumental personal

loss.

Consequent to a memorable family reunion after some years

during Thanksgiving 1983 at a resort in West Virginia, Jim

Spain, his wife Edith and daughter Sikandra bade farewell to

their sons and brothers Patrick, William and Stephen and

began to wend their way through country roads back to

Washington.

Near Leesburg, Virginia, their light fiber-glass car was

hit by a huge old station wagon going 85 miles per hour,

driven by a local football player who was not wearing the

glasses his license prescribed. He was not even scratched,

but the Spains had to be evacuated to the Washington Hospital

Trauma Center by helicopter.

By next morning, Sikandra was dead, Edith was clinging to

life in an intensive-care unit and Jim was immobilized with a

variety of fractures and bruises.

A few weeks later, Edith died.

With the help of his sons and his strong spirituality, Jim

Spain bore his irreparable loss with fortitude.

I read all that into the Record so my colleagues would know what a man he was.

I have lost a good friend. Marcelle and I send our condolences to his sons Patrick, Stephen, and William; their wives, Barbara, Beth, and Anu; to his grandchildren Jeanne, James, Aidan, Katherine, and Rachel; and to all within his family.

For my part, I know I have gained more from knowing him than I could ever say.

I ask unanimous consent to have printed in the Record Ambassador Spain's biography.

Mr. President, I want to take this opportunity to commend Indonesian President Susilo Bambang Yudhoyono for his statements on December 10, 2007, at the Bali Climate Conference, concerning the Ministry of Forestry's ``Strategy and Action Plan for National Conservation of Orangutans.''

The President said ``the survival of the orangutan is inextricably linked to the survival of its natural habitat: the rainforests. . . . [T]o save orangutans, we must save the forests. And by saving, regenerating, and sustainably managing forests, we are also doing our part in reducing global greenhouse gas emissions, while contributing to sustainable economic development of Indonesia. Successful orangutan conservation is the symbol of responsible management of the earth's resources.''

President Yudhoyono's eloquent words represent an important recognition by the Indonesian Government that preserving orangutan habitat is an environmental imperative, not only to protect this magnificent species from extinction but to help reduce carbon emissions resulting from the destruction of Indonesia's forests.

A decade ago I included funds in the Foreign Operations Act to support programs administered by the U.S. Agency for International Development to protect the orangutan. Those initial funds have evolved into an ongoing program implemented through grants to nongovernmental organizations and for training of Indonesian police, and has begun to show encouraging results. Not only are the entities involved in this effort working more cooperatively together, the Indonesian Government is taking steps to curb illegal logging which poses the greatest threat to the orangutan's survival.

The orangutan's fate is far from certain. Far more needs to be done to protect the forests of Borneo and Sumatra where these great apes live. But by recognizing the opportunities this challenge presents for Indonesia and the world, President Yudhoyono has done a great service to this effort and gives us hope that the orangutan can be saved.

I ask unanimous to have an article in the Telegraph about President Yudhoyono's announcement of Indonesia's new Strategy and Action Plan printed in the Record.

Mr. President, I know the Senator from Connecticut has the floor at this point, but I wonder if he will yield to me for about another minute.

Mr. President, I appreciate the comments of the distinguished senior Senator from Pennsylvania. I have enjoyed my work with him. Of course, we have been friends from the time we first met when we were both young prosecutors.

I note that my amendment on the Judiciary Committee bill does not preclude a debate on the question of immunity for the telecommunications carriers. It speaks to what the FISA Court can or should do with this new surveillance authority.

If my amendment is voted down, several parts of it will be debated again. Many parts of this amendment will be germane after cloture, and we will be debating those as separate amendments. On the immunity issue, there will be an amendment by the distinguished Senator from Pennsylvania and the distinguished Senator from Rhode Island on the issue of substitution. We will vote either up or down on that amendment. My amendment is about the oversight of the FISA Court and Congress.

I understand the position of the Senator from Pennsylvania, but I hope he will look carefully at a number of the provisions in this bill. If he is unable to vote for the overall amendment, I hope he will support many of its provisions in separate amendments.

I have taken the time of the Senator from Connecticut who has worked with me and has been one of the leading voices on the important issue of oversight for electronic surveillance. We all want to be able to collect as much intelligence as we can against those who would act against the United States of America, but we have also lived long enough to see the danger when there are not enough checks on the government. We remember COINTELPRO and other circumstances where the government has used the great resources of this country not against enemies but against Americans. No voice in this body has been stronger on that issue than the distinguished senior Senator from Connecticut.

I yield the floor.

Mr. President, what is the parliamentary situation?

Mr. President, obviously I disagree with the description of the Senate Judiciary Committee's amendment. I spoke on this yesterday, but I am going to take a few minutes to describe what is in the Judiciary Committee's bill.

I support the Judiciary Committee amendment to the FISA Amendments Act of 2007. The Judiciary Committee amendment would make important improvements to the Intelligence Committee bill, at the same time maintaining its structure and its authority.

The so-called Protect America Act was rushed through the Senate last summer in an atmosphere of fear and intimidation. We even saw a key member of the administration make commitments to numerous Senators, Republicans and Democrats, on that bill and then break his word, first to us and then on national television.

It was a bad bill that has provided sweeping new powers to the Government. It imposes no checks on the Government and provides no oversight or protection for Americans' privacy.

The Intelligence Committee did important work last fall in crafting a bill that begins to walk back from the excesses of the Protect America Act. I commend both Senator Rockefeller and Senator Bond for that. But two committees in the Senate have jurisdiction over FISA the Intelligence Committee and the Judiciary Committee.

The Intelligence Committee acted first to establish a good structure for conducting critical overseas surveillance. The Judiciary Committee's amendment maintains that structure and the authority for surveillance. But in my view and in the view of many Senators, the Intelligence Committee bill does not do enough to protect the rights of Americans. Indeed, many members of the Intelligence Committee voted for that bill knowing that the Judiciary Committee would have an opportunity to improve it, and they expected us to do that.

FISA is among the most important pieces of legislation this Congress has passed. It is there to provide a mechanism to conduct surveillance, it is critical to our security, but also protect the privacy and civil liberties of all Americans.

Let's be clear, this new authority expands FISA to allow more flexibility to conduct surveillance. If we are going to expand surveillance, we have to take great care to protect American civil liberties, and that is what the Judiciary Committee adds.

I praise the members who serve on both the Judiciary and Intelligence Committees--Senators Feinstein, Feingold, and Whitehouse, who contributed so much to the Judiciary Committee's efforts to improve this legislation. These Senators and others on the Judiciary Committee worked hard to craft amendments that preserve the basic structure and authority in the bill reported by the Select Committee on Intelligence, while adding crucial protections for Americans.

The Judiciary Committee bill makes about 12 changes to the Intelligence Committee bill. Let me address a few of them.

First, the Judiciary Committee bill contains a very strong exclusivity provision. This provision makes clear that the Government cannot claim authority to operate outside the law--outside of FISA-- from measures that were never intended to provide such exceptional authority.

This administration argues that the Authorization for the Use of Military Force, passed after September 11, provided the justification for conducting warrantless surveillance of Americans for more than five years. No, what it did was authorize going into Afghanistan to get Osama bin Laden--the man who masterminded the attacks on 9/11. Not only did the administration fail to do that, it took our troops out of Afghanistan--when they had bin Laden cornered--to invade Iraq.

When we authorized going after Osama bin Laden, we did not authorize explicitly or implicitly the warrantless

wiretapping of Americans. Yet this administration still clings to this phony legal argument. The Judiciary Committee bill would prevent that dangerous contention with strong language reaffirming that FISA is the exclusive means for conducting electronic surveillance for foreign intelligence purposes. The Senate Intelligence Committee's bill would do nothing to preclude the AUMF argument in the future.

We also provide a more meaningful role for the FISA Court in this new surveillance. This court is a critical independent check on Government excess in the sensitive area of electronic surveillance.

The fundamental purpose of many of the Judiciary Committee changes is to ensure that this important independent check remains meaningful, while maintaining the flexibility of ``blanket'' orders, which we all agree are necessary. The Intelligence Committee bill would give the FISA Court only a very limited role in overseeing surveillance.

The Judiciary Committee bill would give the FISA Court the authority it needs to assess the Government's compliance with minimization procedures. It would allow the Court to request additional information from the Government, and allow the Court to enforce compliance with its orders. The amendment would also give the court discretion to impose restrictions on the use and dissemination of Americans' information if it is collected unlawfully.

The Judiciary bill would make other important changes. It reduces the sunset for this new law from 6 years to 4 years. This was Senator Cardin's amendment. There is too much here that is new and untested to allow the authorities go longer than even the next President's term before requiring a thorough review. It clarifies that the bill does not allow bulk collection that would simply sweep up all calls into and out of the United States. It also clarifies that the Government may not use this new authority to target Americans indirectly if they are not allowed to do it directly. The administration says it would never do this. They have no credibility. The Judiciary Committee's bill would make sure they keep their word.

Finally, the Judiciary Committee bill includes a requirement that inspectors general, including the Department of Justice inspector general, conduct a thorough review of the so-called Terrorist Surveillance Program and report back to the Congress and, to the extent it can in an unclassified version, to the American people.

The Department of Justice inspector general will have the responsibility to look at, among other things, the process at the Department of Justice that limited knowledge and review of important legal decisions to a tiny group of like-minded individuals, at great cost to the rule of law and American values. This is a key measure that would finally require accountability for this administration. We have not yet had anything close to a comprehensive examination of what happened and how it happened. We cannot expect to learn from mistakes if we refuse to allow them to be examined.

I strongly oppose a provision in the Intelligence Committee bill that would grant blanket retroactive immunity to telecommunications carriers for their warrantless surveillance activities from 2001 through earlier this year. That provision goes even beyond the so-called Protect America Act. It would insulate this administration from accountability for its lawbreaking. The Judiciary Committee bill does not have that provision. I know that will be a separate debate on this floor.

With the authority of a majority of the Judiciary Committee members, I made a few changes to the amendment as we reported it in November. There are no major additions or deletions. The original 12 changes are still there. The revised version makes some changes to address technical issues and concerns the administration raised about our substitute. We have considered the Statement of Administration Policy from last December and we have talked with the administration. We have listened and made changes that we think address some legitimate concerns.

For example, we have revised the exclusivity provision. The provision in the earlier version of the Judiciary Committee amendment could have been read to extend the scope of FISA in a way that was not intended. We corrected that.

Another concern we addressed was about the issue of staying FISA Court decisions pending appeal. The Intelligence Committee bill would automatically stay FISA Court decisions, thereby requiring possibly illegal surveillance to continue throughout a lengthy appeal process. The original Judiciary Committee amendment left the decision about a stay to the discretion of the FISA Court judges--which is how it is typically done in courts. The administration was concerned that this left too much power to stop surveillance in the hands of a lone judge. We listened and made a change that would permit the stay decision to be made--promptly--by a panel of the FISA Court of Review.

Another change we made to address an administration concern was the important IG audit provision. That provision now makes it clear that no department inspector general has the authority to conduct a review of another department.

These revisions make the Judiciary Committee's product stronger. I think overall the Judiciary Committee's bill dramatically improves the Intelligence Committee bill. As the distinguished chairman of the Intelligence Committee said, we included a number of items he supports. If this gets voted down, these are changes that Senators will have to offer piece by piece, and will. Most of it will be germane after cloture. If we really want to conclude this FISA debate quickly, adopting this amendment will save the Senate countless hours of debate. I urge my colleagues to support this amendment. Now, Mr. President, what is the parliamentary situation?

Mr. President, let me just talk about this a little bit.

Incidentally, I ask for the yeas and nays on my amendment.

Mr. President, we all want to be able to collect intelligence on terrorists. When I came here, during the Cold War, we wanted to be sure we could collect on our adversaries. We still want to be sure we can do that. That is why I have voted for dozens of changes to FISA over the years, requested by both Republican and Democratic administrations. I voted for them because the administrations made a clear and convincing case each time that we needed a change to keep up with the technology or to keep up with a changing threat.

But let's not be so frightened by terrorists that we go back to the situation we had during the Watergate era, when we found our Government was spying on people who disagreed with it. The government spied on people who had legitimate concerns about, for example, the war in Vietnam or the excesses of J. Edgar Hoover. The government could do that back then because there were no checks and there was no oversight. We do not want to go back to that time. We can do our intelligence gathering and protect Americans at the same time.

Now, Mr. President, has my time expired?

Is that the only time anybody has?

I yield back all time.

Mr. President, I support Senator Feingold's amendment to provide Congress with additional materials from the FISA Court to enable Congress to conduct more effective oversight. This amendment is one of the many improvements to the Senate Intelligence bill adopted by the Judiciary Committee and included in the Judiciary Committee's substitute amendment. Regrettably, that substitute was tabled by the full Senate earlier today. But I urge Senators to reconsider their votes with respect to this simple but critically important reporting requirement.

Under current law, semi-annual reporting requirements allow the government to wait up to a year before informing the Congress about important interpretations of law made by the FISA Court. The Senate Intelligence bill took a step in the right direction by requiring that Congress be provided with the orders, decisions and opinions of the FISA Court that include significant interpretation of law within 45 days after they are issued.

Senator Feingold's amendment would go a step further to ensure sound oversight by Congress of the activities of the FISA Court. It would require that, when the FISA Court issues an opinion containing a significant legal interpretation, the government must provide Congress with the government's pleadings related to the case. This is critically important because, where the FISA Court simply adopts the government's reasoning in one of its decision, Congress will have no way of knowing the true basis for the court's ruling without access to the government's pleadings.

The Feingold amendment would also require that Congress now be provided with any significant interpretations of law by the FISA Court that were not provided to Congress over the past 5 years. Access to past jurisprudence, as well as current decisions, is critical to Congress's understanding of how FISA is being interpreted and implemented.

Opponents of this amendment say that it may create additional ``paperwork.'' But if Congress can be better informed about the workings of the FISA Court--a court Congress created--and can more effectively oversee the government's advocacy in that Court, then any incremental additional paperwork is clearly in the best interests of the American public. Opponents also say that the pleadings may reveal sources and methods, and therefore cannot be turned over to the Congress. This is a red herring. As Senator Feingold has stated repeatedly, this amendment is not intended to compel disclosure of this kind of information, and nothing in the amendment could be construed to change the time-tested practice of redacting information that could reveal sources and methods.

I urge all Senators to support the Feingold amendment, and to reject any attempts to water down this important reporting requirement by way of second-degree amendments.

I yield the floor.

Mr. President, Senator Kennedy and I have offered an important amendment to ensure that there will be some measure of accountability for the unlawful actions of this administration in the years following 9/11. Regrettably, those opposing this commonsense review have so far succeeded in stopping the full Senate from even considering its merits.

It is a sad day for the American public when its elected officials stonewall a measure designed to shed light on the Government's efforts to unlawfully spy on its own citizens. I urge Senators across the aisle to allow this amendment to be called up, debated, and given an up-or- down vote.

As we all now know from press accounts, in the years after 9/11, the Government secretly conducted surveillance on its own citizens on a massive scale through what has become known as the Terrorist Surveillance Program, TSP. It was done completely outside of FISA, the law specifically drafted to regulate such conduct. And it was done without the consent or even the knowledge of the Congress. It is crucial that Congress and the American people understand why and how these decisions were made, both in the months after 9/11, and in the several years following that difficult time. This inspector general review amendment will provide that accountability.

This review would be conducted jointly by the Offices of Inspectors General of each component of the intelligence community that may have played any role in the TSP, including the inspector general of the Department of Justice. It will examine the circumstances that led to the approval of the TSP, as well as any procedural irregularities that may have taken place within the Department of Justice Office of Legal Counsel--the part of the Justice Department that is supposed to give unvarnished legal advice to the President. It will result in a final report to be submitted to the Intelligence and Judiciary Committees in the House and Senate within 180 days, containing recommendations and a classified annex. There has been no such comprehensive review to date.

This amendment is particularly important because the administration and some of its allies in Congress are relentlessly arguing for retroactive immunity for the 40 or so lawsuits against those telecommunications companies that may have assisted in conducting this secret surveillance. They are trying to shut down avenues for investigating and determining whether their actions were lawful. This amendment will ensure that there will be an objective assessment of the lawfulness of the secret spying program and the manner in which the Government approved and carried out the program.

Critics of the amendment claim that Congress has already conducted sufficient oversight of the TSP, and that no further review is warranted. That is simply not true. Only a small number of Senators and Representatives have been granted access to classified documents related to the TSP. Those of us who have been granted access can provide a measure of oversight by reading through documents to try to piece together how the Government decided to spy on its own citizens, for years, and how the Justice Department came to bless this unlawful conduct. But the documents don't tell the full story. As we learned from Jack Goldsmith, the former head of the Office of Legal Counsel, the President's program was a ``legal mess'' when he took over. It is crucial to understand how this ``legal mess'' got approved in the first place. Who was responsible? Were the normal procedures followed at the Office of Legal Counsel? And, perhaps most importantly, how can we stop something like this from ever happening again?

This amendment is one of the many improvements to the Senate Intelligence bill that were adopted by the Judiciary Committee and included in the Judiciary Committee's substitute amendment. Regrettably, that substitute was tabled by the Senate earlier today. I urge Senators to reconsider their votes with respect to this simple but critically important accountability measure.

If the critics succeed in quashing not only the outstanding lawsuits seeking accountability, but also congressional efforts to arrive at the truth through a comprehensive review of the TSP, the American public will never forgive us. This administration is hoping it will end its time in office without any meaningful review of its more than 5 years of illegal surveillance. We must not let this happen. I urge all Senators to support this commonsense amendment to ensure accountability.

Mr. President, our great Nation was founded on the fundamental principle that all persons are created equal. We have long committed, and recommitted, ourselves to ensuring that all persons have the

right to prosper through hard work and ingenuity. However, for many Americans, those rights still remain illusory. Today, we introduce a comprehensive bill to vindicate our founding principles and make the promise of equal opportunity in the workplace a reality for all Americans.

I am proud to cosponsor the Civil Rights Act of 2008, and I thank Senator Ted Kennedy for his leadership in the Senate on this issue, and Representative John Lewis for his leadership in the House. I have been a long-time supporter of efforts to rid the workplace of unlawful discrimination, and I believe the Civil Rights Act of 2008 is critical to achieving that important goal. We must continue to fight to end all workplace discrimination, including discrimination based on sexual orientation.

This legislation we are introducing today responds to several disappointing decisions by conservative courts. These court rulings have misconstrued congressional intent, and have had the effect of limiting important civil rights protections provided by Congress.

A 2000 decision from the Supreme Court of the United States greatly restricted the capacity of workers who suffer age discrimination to sue for full relief. In Kimel v. Florida Board of Regents, the Supreme Court ruled that, contrary to Congress's original intent, State employers do not have to provide back pay or other monetary damages when workers are discriminated against based on age. As a result, millions of State workers who are 40 or over lost the right to back pay. This bill would restore Congress's original intent that State employers give workers full relief for age discrimination, including back pay.

The bill would clarify the standard for challenging employment practices that have an unjustified discriminatory impact on older workers. It would make clear that the standard of proof in cases alleging a disparate impact based on age is the same as in cases alleging a disparate impact based on race, color, gender, national origin, or religion.

The bill would also restore the rights of victims of discrimination-- in the workplace or otherwise--to challenge practices that have a disparate impact on certain communities based on race, national origin, sex, age, or disability. Since the Supreme Court's decision 7 years ago in Alexander v. Sandoval, individuals can no longer challenge discrimination by entities that receive Federal funding without facing the high burden of proving purposeful discrimination.

Currently, only the Federal Government has the right to challenge sophisticated forms of discrimination--by federally funded entities-- that fall disproportionately on certain minority groups. So if a State decided to administer a driver's license exam only in English, rather than administering the exam in multiple languages, a non-English speaker would be denied his or her right to have their day in court. This measure returns the Federal law to our original intentions by allowing individuals a right to challenge such practices:

These added protections provide a significant step forward in the fulfillment of our goal to eliminate the footprint of unlawful discrimination from the workplace and broader society. Civil rights legislation over the last 44 years--including antidiscrimination in the workplace laws--represents some of Congress's greatest achievements. With the passage of the Civil Rights Acts of 1964 and 1991, the Age Discrimination Act of 1975, and the Rehabilitation Act of 1973, Congress gave victims of discrimination a way to address the wrongs that they have suffered and put teeth into the sanctions faced by those who unlawfully discriminate against their victims.

Despite these gains, efforts to eliminate bias from the workplace and larger society have been largely eroded by decisions from conservative jurists on the Supreme Court and other Federal courts. Year after year, conservative courts have rolled back rights by denying certain types of relief and taking certain tools--designed to fight intentional and sophisticated forms of workplace discrimination--from individual workers. This bill would reverse that rollback, and restore the rights of victims to have their day in court and to have meaningful remedies when those rights are violated.

Discrimination on the basis of certain personal characteristics has no place in any workplace or in any State in America. It is long overdue for Congress to reinforce Americans' protections against bias in the workplace and eradicate barriers to full and equal participation in our society.

The time for this bill is now. It is particularly important that, on the week our Nation observes and honors the legacy of Dr. Martin Luther King, Jr., Congress has introduced this bill. We must remain vigilant in ensuring our precious civil rights, which generations of Americans fought and bled to protect, remain available for our children and grandchildren.

Mr. President, our great Nation was founded on the fundamental principle that all persons are created equal. We have long committed, and recommitted, ourselves to ensuring that all persons have the

right to prosper through hard work and ingenuity. However, for many Americans, those rights still remain illusory. Today, we introduce a comprehensive bill to vindicate our founding principles and make the promise of equal opportunity in the workplace a reality for all Americans.

I am proud to cosponsor the Civil Rights Act of 2008, and I thank Senator Ted Kennedy for his leadership in the Senate on this issue, and Representative John Lewis for his leadership in the House. I have been a long-time supporter of efforts to rid the workplace of unlawful discrimination, and I believe the Civil Rights Act of 2008 is critical to achieving that important goal. We must continue to fight to end all workplace discrimination, including discrimination based on sexual orientation.

This legislation we are introducing today responds to several disappointing decisions by conservative courts. These court rulings have misconstrued congressional intent, and have had the effect of limiting important civil rights protections provided by Congress.

A 2000 decision from the Supreme Court of the United States greatly restricted the capacity of workers who suffer age discrimination to sue for full relief. In Kimel v. Florida Board of Regents, the Supreme Court ruled that, contrary to Congress's original intent, State employers do not have to provide back pay or other monetary damages when workers are discriminated against based on age. As a result, millions of State workers who are 40 or over lost the right to back pay. This bill would restore Congress's original intent that State employers give workers full relief for age discrimination, including back pay.

The bill would clarify the standard for challenging employment practices that have an unjustified discriminatory impact on older workers. It would make clear that the standard of proof in cases alleging a disparate impact based on age is the same as in cases alleging a disparate impact based on race, color, gender, national origin, or religion.

The bill would also restore the rights of victims of discrimination-- in the workplace or otherwise--to challenge practices that have a disparate impact on certain communities based on race, national origin, sex, age, or disability. Since the Supreme Court's decision 7 years ago in Alexander v. Sandoval, individuals can no longer challenge discrimination by entities that receive Federal funding without facing the high burden of proving purposeful discrimination.

Currently, only the Federal Government has the right to challenge sophisticated forms of discrimination--by federally funded entities-- that fall disproportionately on certain minority groups. So if a State decided to administer a driver's license exam only in English, rather than administering the exam in multiple languages, a non-English speaker would be denied his or her right to have their day in court. This measure returns the Federal law to our original intentions by allowing individuals a right to challenge such practices:

These added protections provide a significant step forward in the fulfillment of our goal to eliminate the footprint of unlawful discrimination from the workplace and broader society. Civil rights legislation over the last 44 years--including antidiscrimination in the workplace laws--represents some of Congress's greatest achievements. With the passage of the Civil Rights Acts of 1964 and 1991, the Age Discrimination Act of 1975, and the Rehabilitation Act of 1973, Congress gave victims of discrimination a way to address the wrongs that they have suffered and put teeth into the sanctions faced by those who unlawfully discriminate against their victims.

Despite these gains, efforts to eliminate bias from the workplace and larger society have been largely eroded by decisions from conservative jurists on the Supreme Court and other Federal courts. Year after year, conservative courts have rolled back rights by denying certain types of relief and taking certain tools--designed to fight intentional and sophisticated forms of workplace discrimination--from individual workers. This bill would reverse that rollback, and restore the rights of victims to have their day in court and to have meaningful remedies when those rights are violated.

Discrimination on the basis of certain personal characteristics has no place in any workplace or in any State in America. It is long overdue for Congress to reinforce Americans' protections against bias in the workplace and eradicate barriers to full and equal participation in our society.

The time for this bill is now. It is particularly important that, on the week our Nation observes and honors the legacy of Dr. Martin Luther King, Jr., Congress has introduced this bill. We must remain vigilant in ensuring our precious civil rights, which generations of Americans fought and bled to protect, remain available for our children and grandchildren.

Mr. President, I ask unanimous consent that the Committee on Agriculture, Nutrition, and Forestry be authorized to meet during the session of the Senate on Thursday, January 24, 2008, at 3:30 p.m. in room 328A of the Russell Senate Office Building in order to consider the nomination of Ed Schafer, of North Dakota, to be Secretary of Agriculture.

Mr. President, I ask unanimous consent that the Committee on Energy and Natural Resources be authorized to meet during the session of the Senate on Thursday, January 24, 2008, at 9:30 a.m., in room SD366 of the Dirksen Senate Office Building in order to conduct a hearing. At this hearing, the Committee will hear testimony regarding Reform of the Mining Law of 1872.

Mr. President, I ask unanimous consent that the Committee on Environment and Public Works be authorized to meet during the session of the Senate on Thursday, January 24, 2008, at 10 a.m. in room 406 of the Dirksen Senate Office Building in order to hold a hearing entitled, ``Oversight of EPA's Decision to Deny the California Waiver.''

Mr. President, I ask unanimous consent that the Committee on Finance be authorized to meet during the session of the Senate on Thursday, January 24, 2008, at 10 a.m., in room 215 of the Dirksen Senate Office Building, in order to conduct a hearing entitled ``Strengthening America's Economy: Stimulus That Makes Sense.''

Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on Thursday, January 24, 2008, at 2:30 p.m. in order to conduct a hearing on climate change negotiations.

Mr. President, I ask unanimous consent that the Committee on Health, Education, Labor, and Pensions be authorized to meet during the session of the Senate, in order to conduct a hearing entitled ``The Fair Pay Restoration Act: Ensuring Reasonable Rules in Pay Discrimination'' on Thursday, January 24, 2008. The hearing will commence at 10 a.m. in room 430 of the Dirksen Senate Office Building.

Mr. President, I ask unanimous consent for the Committee on Veterans' Affairs to be authorized to meet during the session of the Senate on Thursday, January 24, in order to conduct an oversight hearing on the Report of the Veterans' Disability Benefits Commission. The Committee will

meet in room 562 of the Dirksen Senate Office Building, at 9:30 a.m.

Mr. President, I ask unanimous consent that the Permanent Subcommittee on Investigations of the Committee on Homeland Security and Governmental Affairs be authorized to meet during the session of the Senate on Thursday, January 24, 2008, at 10 a.m., in order to conduct a hearing entitled, ``United Nations Development Program in North Korea: A Case Study.''

Mr. President, I ask unanimous consent that the Committee on Homeland Security and Governmental Affairs' Subcommittee on Federal Financial Management, Government Information, Federal Services, and International Security and the Subcommittee on Oversight of Government Management, the Federal Workforce, and the District of Columbia be authorized to meet during the session of the Senate on Thursday, January 24, 2008, at 2:30 p.m. in order to conduct a hearing entitled, ``Management and Oversight of Contingency Contracting in Hostile Zones.''