Floor Statements

Mr. President, I strongly oppose S. 2248. This bill is deeply flawed in ways that will have a direct impact on the privacy of Americans. Along with several other Members of this body, I have offered modest amendments that would have permitted the government to obtain the intelligence it needs, while providing the checks and balances required to safeguard our constitutional rights. Unfortunately, under intense administration pressure marked by inaccurate and misleading scare tactics, the Senate has buckled. And we are left with a very dangerous piece of legislation.

The railroading of Congress began last summer, when the administration rammed through the so-called Protect America Act, vastly expanding the government's ability to eavesdrop without a court- approved warrant. That legislation was rushed through this Chamber in a climate of fear--fear of terrorist attacks, and fear of not appearing sufficiently strong on national security. There was very little understanding of what the legislation actually did.

But there was one silver lining: The bill had a 6-month sunset to force Congress to do its homework and reconsider the approach it took. Unfortunately, with far too few exceptions, the damage has not been undone.

This new bill was intended to ensure that the government can collect communications between persons overseas without a warrant, and to ensure that the government can collect the communications of terrorists, including their communications with people in the United States. No one disagrees that the government should have this authority. But this bill goes much further, authorizing widespread surveillance involving innocent Americans--at home and abroad.

Proponents of the bill and the administration don't want to talk about what this bill actually authorizes. Instead, they repeatedly and inaccurately assert that efforts to provide checks and balances will impede the government's surveillance of terrorists. They launched these attacks against the more balanced bill that came out of the Judiciary Committee. And they have attacked and mischaracterized amendments offered on the floor of this body. This is fear-mongering, it is wrong, and it has obscured what is really going on.

What does this bill actually authorize? First, it permits the government to come up with its own procedures for determining who is a target of surveillance. It doesn't need advance approval from the FISA Court to ensure that the government's targets are actually foreigners, and not Americans here in the United States. And, if the Court subsequently determines that the government's procedures are not even reasonably designed to wiretap foreigners, rather than Americans, there are no meaningful consequences. All that illegally obtained information on Americans can be retained and used.

Second, even if the government is targeting foreigners outside the U.S., those foreigners need not be terrorists. They need not be suspected of any wrongdoing. They need not even be a member or agent of some foreign power. In fact, the government can just collect international communications indiscriminately, so long as there is a general foreign intelligence purpose, a meaningless qualification that the DNI has testified permits the collection of all communications between the United States and overseas. Under this bill, the government can legally collect all communications--every last one--between Americans here at home and the rest of the world. Even the sponsor of this bill, the chairman of the Intelligence Committee, acknowledges that this kind of bulk collection is probably unconstitutional, but the DNI has said it would be not only authorized but ``desirable'' if technically possible. Technology changes fast in this area. We have been forewarned, yet the Senate failed to act.

One of the few bright spots in this bill is the inclusion of an amendment, offered by Senators Wyden, Whitehouse and myself in the Intelligence Committee, to prohibit the intentional targeting of an American overseas without a warrant. That is an important new protection. But that amendment does not rule out the indiscriminate vacuuming up of all international communications, which would allow the government to collect the communications of Americans overseas, including with friends and family back home, without a warrant. And those communications can be retained and used. Even the administration's illegal warrantless wiretapping program,

as described when it was publicly confirmed in 2005, at least focused on the communications of particular terrorists. What we are talking about now is potentially a huge dragnet that could sweep up the communications of countless innocent Americans.

Third, the Senate failed to prohibit the practice of reverse targeting; namely, wiretapping a person overseas when what the government is really interested in is an American here at home with whom the foreigner is communicating. The underlying bill simply does not stop this practice and, if there was any doubt, the DNI has publicly said that the bill merely ``codifies'' the administration's view that surveillance of an American is fine, so long as the government is technically wiretapping the foreigner. Even the DNI has said this is unconstitutional, but there is nothing in this bill to stop it.

Fourth, the Senate has failed to protect the privacy of Americans whose communications will be collected in vast new quantities. The administration's mantra has been: ``don't worry, we have minimization procedures.'' Minimization procedures are nothing more than unchecked executive branch decisions about what information on Americans constitutes ``foreign intelligence.'' As recently declassified documents have again confirmed, the ability of government officials to find out the identity of Americans and use that information is extremely broad. Moreover, even if the administration were correct that minimization procedures have worked in the past, they are certainly inadequate as a check against the vast amounts of Americans' private information that could be collected under these new authorities.

This legislation is particularly troubling because we live in a world in which international communications are increasingly commonplace. Thirty years ago it was very expensive, and not very common, for most Americans to make an overseas call. Now, particularly with email, such communications are commonplace. Millions of ordinary, and innocent, Americans communicate with people overseas for entirely legitimate personal and business reasons. Parents or children call family members overseas. Students email friends they have met while studying abroad. Business people communicate with colleagues or clients overseas. Technological advancements combined with the ever more interconnected world economy have led to an explosion of international contacts.

We often hear from those who want to give the government new powers that we just have to bring FISA up to date with new technology. But changes in technology should also cause us to take a close look at the need for greater protections of the privacy of our citizens. If we are going to give the government broad new powers that will lead to the collection of much more information on innocent Americans, we have a duty to protect their privacy as much as we possibly can. And we can do that without sacrificing our ability to collect information that will help protect our national security.

But, the Senate has once again fallen for administration tactics that have become so depressingly familiar. ``Trust us,'' they say. ``We don't need judicial oversight. The courts will just get in our way. You never know when they might tell us that what we're doing is unconstitutional, and we would prefer to make that decision on our own. Checks and balances, judicial and congressional oversight, will impede our ability to fight terrorism.'' And, sadly, these grossly misleading efforts at intimidation have apparently worked.

I have been speaking for some time now about my strong opposition to this bill, and I haven't even addressed one of the most outrageous elements of that bill: the granting of retroactive immunity to companies that allegedly participated in an illegal wiretapping program that lasted for more than 5 years.

This grant of automatic immunity is simply unjustified. There is already an immunity provision in current law that has been there since FISA was negotiated--with the participation of the telecommunications industry--in the late 1970s. The law is clear. Companies have immunity from civil liability when they cooperate with a Government request for assistance--as long as they receive a court order, or the Attorney General certifies that a court order is not required and all statutory requirements have been met.

This is not about whether companies had good intentions. It is about whether they complied with this statutory immunity provision, which has applied to them for 30 years. If the companies followed that law, they should get immunity. If they did not follow that law, they should not get immunity. And a court should make that decision, not Congress. It is that simple.

Congress passed a law laying out when telecom companies get immunity and when they don't for a reason. These companies have access to our most private communications, so Congress has subjected them to very precise rules about when they can provide that information to the government. If the companies did not follow the law Congress passed, they should not be granted a ``get out of jail free'' card after the fact.

Proponents of retroactive immunity have said repeatedly that immunity is necessary if the government is going to have the cooperation of carriers in the future. We do need that cooperation. But we also need to make sure that carriers don't cooperate with illegitimate requests. We already have a law that tells companies when they should and when they shouldn't cooperate, so they are not placed in the position of having to evaluate independently whether the government's request for help is legitimate.

Instead of allowing the courts to apply that law to the facts-- instead of allowing judges to decide whether the companies deserve immunity for acting appropriately--this bill sends the message that companies need not worry about complying with questionable government requests in the future because they will be bailed out after the fact.

This is outrageous. Even more outrageous is that fact that if these lawsuits are dismissed, the courts may never rule on the NSA wiretapping program. This is an ideal outcome for an administration that believes it should be able to interpret laws alone, without worrying about how Congress wrote them or what a judge thinks. For those of us who believe in three independent and co-equal branches of government, it is a disaster.

In the 1970s, Congress learned that the executive branch had been using its immense powers and the advance of technology to spy on its citizens. By passing FISA, Congress faced up to the fact that we can't just trust the executive branch, including the President of the United States, to do the right thing, that judicial oversight of the power to spy was needed, that checks and balances are the best way to ensure liberty, and security.

I have spent a great deal of time on the floor over the past several weeks discussing the details of the bill, offering amendments, and debating the possible effects of the fine print of the statute. But this isn't simply about fine print. In the end, my opposition to this bill comes down to this: This bill is a tragic retreat from the principles that have governed government conduct in this sensitive area for 30 years. It needlessly sacrifices court oversight and protection of the privacy of innocent Americans. It is an abdication of this body's duty to stand up for the rule of law.

We know what is wrong with this legislation. We know that it authorizes unconstitutional surveillance of Americans. We have been forewarned. I urge my colleagues to vote ``no'' on final passage.

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

Madam President, today I want to address several of the pending amendments to the FISA legislation, and I will indicate the amendment number of each one as I discuss it. First is what we call the Feingold-Webb-Tester amendment No. 3979. I wish to address some of the arguments that have been made in opposition to Feingold-Webb-Tester and to set the record straight about what the amendment does. The Senator from Missouri has suggested it would cut off all foreign intelligence collection because the Government would not be able to determine in advance whether communications are foreign to foreign. This is preposterous. The whole point of the amendment is to allow the Government to acquire all communications of foreign targets when it does not know in advance whether they are purely foreign or have one end in the United States.

The administration also argues we should not pass the Feingold-Webb- Tester amendment because it would be difficult and time consuming to implement. That is no reason to oppose the amendment. I understand the amendment imposes a new framework, and that is precisely why the amendment grants the Government up to a year before it goes into effect.

I also wish to make clear that the amendment does not force the Government to determine the location of every person and every e-mail the Government acquires, contrary to what has been suggested. The amendment only requires that the Government determine whether one end of a communication is in the United States where reasonably practicable, based on procedures approved by the FISA Court. In some instances, that would be easy to do, while in others it would not be feasible at all. The court-approved procedures will take those differences into account.

It is also not true that the amendment would harm our nonterrorism foreign intelligence operations. This amendment leaves intact the warrantless acquisition of any foreign-to-foreign communications and any communications where the Government doesn't know in advance whether they are to or from people in the United States. Even for communications where the Government knows they involve Americans in the United States, no court order is actually required for communications relating to terrorism or anyone's safety.

This is much broader than the pre-Protect America Act law. None of this would have been possible 7 months ago. Let's not forget the justification for this legislation has always been about terrorism and foreign-to-foreign communications. Last month, the Vice President defended the Protect America Act by talking about ``one foreign citizen abroad making a telephone call to another foreign citizen abroad about terrorism.'' The Feingold-Webb-Tester amendment allows those calls to be monitored without a warrant.

The Feingold-Webb-Tester amendment allows the Government to get the information it needs about terrorists and about purely foreign communications, while providing additional checks and balances for communications between people in the United States and their overseas family members, friends, and business colleagues. I urge my colleagues to support the Feingold-Webb-Tester amendment.

Let me next turn to Amendment No. 3912, which has been referred to as the bulk collection amendment. I wish to again stress the importance of my amendment prohibiting the bulk collection of Americans' international communications. The bill we are debating is supposedly intended to permit monitoring of foreign-to-foreign communications and the tracking of terrorists overseas without a warrant. It is not supposed to allow the Government to collect all communications into or out of the United States, but

that is exactly what the Government could seek to do with these authorities, which is why this amendment is critical. I have yet to hear any real arguments against it.

The DNI's recent letter opposing the amendment fails to come up with any substantive arguments. Instead, it describes hypothetical situations that clearly wouldn't be affected by the amendment. In order to protect the international communications of innocent Americans at home, the amendment simply requires that the Government is seeking foreign intelligence information from its targets. In the only examples cited in the letter--a neighborhood or group of buildings or geographic area that the U.S. military is about to invade--clearly, the Government has that purpose. The notion that the Government could not make a good- faith certification to the court that it is seeking foreign intelligence, which is all this amendment requires, is simply ludicrous. What is telling about the DNI's letter, besides that it includes no real arguments against the amendment, is what it does not say. It does not refute the danger this amendment is intended to address: the bulk collection of all communications between the United States and Europe or Canada or South America or, indeed, the world.

The DNI has testified that the PAA would authorize that kind of massive, indiscriminate collection of Americans' communications, and the administration has never denied that this bill could, too, unless we pass this amendment. In fact, this letter does nothing to reassure the American people the Government could not and would not collect all their international communications. Worse, the letter argues that a prohibition on that kind of massive collection would not ``appreciably enhanc[e] the privacy interests of Americans.'' If the DNI does not think the privacy interests of Americans would be affected by the collection of all their international communications, potentially vacuuming up their communications not just with foreigners overseas but with Americans overseas as well, then that is all the more reason to be concerned.

Serious constitutional issues are at stake. The administration is effectively telling us it intends to ignore them.

Let me also respond to a statement by the chairman of the Intelligence Committee last week that a dragnet of all international communications of Americans would probably violate the fourth amendment. I am pleased to hear the chairman acknowledge that the surveillance the administration would like to conduct would violate the constitutional rights of Americans, but how could we possibly expect this administration--an administration that has already demonstrated indifference to Americans' privacy and has already said that bulk collection would be ``desirable''--to hold back. Nor should we rely on the FISA Court to stop this, as the chairman has suggested. If Congress believes something is unconstitutional, we have absolutely no business authorizing it. We have been warned, and now we need to act by passing my modest bulk collection amendment.

I reserve the remainder of my time on amendment No. 3902.

As to the Dodd-Feingold immunity amendment No. 3907, I am pleased to join my colleague in offering this amendment to strike the immunity provision. I ask unanimous consent that I be yielded 15 minutes to speak on the Dodd amendment and that the time be charged to the proponents of the amendment.

I thank the Senator from Connecticut.

Amendment No. 3907

I strongly support Senator Dodd's amendment to strike the immunity provision from this bill. I thank him for his leadership on the issue. I offered a similar amendment in the Judiciary Committee, and I supported a similar amendment in the Intelligence Committee when it was offered by the Senator from Florida, Mr. Nelson. Congress should not be giving automatic retroactive immunity to companies that allegedly cooperated with the President's illegal NSA wiretapping program. This provision of the bill is both unnecessary and unjustified, and it will undermine the rule of law. Retroactive immunity is unnecessary because current law already provides immunity from lawsuits for companies that cooperate with the Government's request for assistance, as long as they receive either a court order or a certification from the Attorney General that no court order is needed and the request meets all statutory requirements.

Companies do not need to do their own analysis of the court order or the certification to determine whether the Government is, in fact, acting lawfully. But if requests are not properly documented, FISA instructs the telephone companies to refuse the Government's request and subjects them to liability if they instead decide to cooperate. This framework, which has been in place for 30 years, protects companies that act at the request of the Government, while also protecting the privacy of Americans' communications. Some supporters of retroactively expanding this provision argue that the telephone companies should not be penalized if they relied on high-level Government assurance that the requested assistance was lawful. As superficially appealing as that argument may sound, it utterly ignores the history of the FISA statute.

Telephone companies have a long history of receiving requests for assistance from the Government. That is because telephone companies have access to a wealth of private information about Americans, information that can be a very useful tool for law enforcement. But that very same access to private communications means telephone companies are in a unique position of responsibility and public trust. Yet before FISA, there were basically no rules to help the phone companies resolve this tension, between the Government's request for assistance in foreign intelligence investigations and the companies' responsibilities to their customers. This legal vacuum resulted in serious Government abuse and overreaching.

The Judiciary Committee has heard testimony about this system from Mort Halperin, a former Nixon administration official who was himself the subject of a warrantless wiretap and was involved in the drafting of the FISA law in the 1970s. He testified that before FISA:

Government communication with the telephone company . . .

could not have been more casual. A designated official of the

FBI called a designated official of [the company] and passed

on the phone number. Within minutes all of the calls from

that number were being routed to the local FBI field office

and monitored.

Not surprisingly, this casual ad hoc system failed to protect Americans' privacy. The abuses that took place are well documented and quite shocking. With the willing cooperation of the telephone companies, the FBI conducted surveillance of peaceful antiwar protesters, journalists, steel company executives, and even Martin Luther King, Jr., an American hero whose life we recently celebrated.

So Congress decided to take action. Based on the history of and potential for Government abuses, Congress decided it was not appropriate for telephone companies to simply assume that any Government request for assistance to conduct electronic surveillance was legal.

Let me repeat that. A primary purpose of FISA was to make clear once and for all that the telephone companies should not blindly cooperate with Government requests for assistance. At the same time, however, Congress did not want to saddle telephone companies with the responsibility of determining whether the Government's request for assistance was a lawful one. That approach would leave the companies in a permanent state of legal uncertainty about their obligations. So Congress devised a system that would take the guesswork out of it completely. Under that system, which is still in place today, the companies' legal obligations and liability depends entirely on whether the Government has presented the company with a court order or a certification stating that certain basic requirements have been met.

If the proper documentation is submitted, the company must cooperate with the request and will be immune from liability. If the proper documentation has not been submitted, the

company must refuse the Government's request or be subject to possible liability in the courts.

AT&T, which was the only telephone company in existence at the time in the 1970s, was at the table when FISA was drafted. As Mr. Halperin described in his testimony, the company:

received the clarity that it sought and deserved. The rule,

spelled out clearly in several places in the legislation and

well understood by all, was this: If [the phone company]

received a copy of a warrant or certification under the

statute, it was required to cooperate. If it did not receive

authorization by means outlined in the statute, it was to

refuse to cooperate and was to be subjected to state and

federal civil and criminal penalties for unlawful acquisition

of electronic communications.

The telephone companies and the Government have been operating under this simple framework for 30 years. Companies have experienced, highly trained and highly compensated lawyers who know this law inside and out. In view of this history, it is inconceivable that any telephone companies that allegedly cooperated with the administration's warrantless wiretapping program did not know what their obligations were. It is just as implausible that those companies believed they were entitled to simply assume the lawfulness of a Government request for assistance. This whole effort to obtain retroactive immunity is based on an assumption that does not hold water.

Quite frankly, the claim that any telephone company that cooperates with a Government request for assistance is simply acting out of the sense of patriotic duty doesn't fare much better. Recently, we learned that telecommunications companies actually have cut off wiretaps when the Government failed to promptly pay its bills.

The Department of Justice Office of Inspector General released a report last month finding that ``late payments have resulted in telecommunications carriers actually disconnecting phone lines established to deliver surveillance to the FBI, resulting in lost evidence.'' Since when does patriotic duty come with a price tag? Evidently, assisting the Government's criminal intelligence investigation efforts fell somewhere below collecting a paycheck on the companies' lines of priorities.

Some of my colleagues have argued the telephone companies alleged to have cooperated with the program had a good-faith belief their actions were in accordance with the law. But there is an entire statute in addition to the certification provision that already provides telephone companies with a precisely defined good-faith defense. Under this provision, which is found in section 2520 of title 18, if the company is relying in good faith on a court order or other statutory legislative authorization, they have a complete defense to liability. This is a generous defense, but as generous as it is, it is not unlimited. The court must find that the telephone company determined in good faith that there was a judicial, legislative, or statutory authorization for the requested assistance.

I also wish to address the argument that retroactive immunity is necessary because the telephone companies can't defend themselves in court. When I hear this argument, I can't help but think that this administration has staged the perfect crime: enlist private companies to allegedly provide assistance in an illegal Government program, then prevent any judicial inquiry into the program by claiming a privilege-- the so-called state secrets privilege--that not only shields your own actions from scrutiny but enables the companies to evade judicial scrutiny as well by claiming that they are defenseless. All the administration needs to get away with this is Congress's blessing.

That is exactly why immunity is the wrong solution. Think about what we would be doing. We would be saying that in matters of national security, you can break the law with impunity because the courts can't handle national security materials. This is outrageous. Do we really want to create a law-free zone for crimes that involve national security matters? If the Government's use of the state secrets privilege is interfering with holding companies accountable for alleged violations of the law, the solution isn't to shrug and just give up on accountability; the solution is to address the privilege head-on and make sure it doesn't become a license to evade the laws we have passed.

In any event, the notion that the Federal courts can't handle national security matters is insulting to the judges this body has seen fit to confirm, and it is contrary to the facts. Cases involving classified information are decided routinely by the Federal courts. That is why we have a statute--the Classified Information Procedures Act--to govern how courts handle classified materials. Pursuant to that statute, courts have in place procedures that have successfully protected classified information for many years. There is no need to create a ``classified materials'' exception to our justice system.

That brings me to another issue. I have been discussing why retroactive immunity is unnecessary and unjustified, but it goes beyond that. Granting companies that allegedly cooperated with an illegal program this new form of automatic retroactive immunity undermines the law that has been on the books for decades, a law that was designed to prevent exactly the type of actions that allegedly occurred here. Remember, telephone companies already have absolute immunity if they complied with the applicable law, and they have an affirmative defense if they believed in good faith that they were complying with that law. So the retroactive immunity provision we are debating here is necessary only if we want to extend immunity to companies that did not comply with the applicable law and did not even have a good-faith belief that they were complying with it. So much for the rule of law. Even worse, granting retroactive immunity under these circumstances will undermine any new laws we pass regarding Government surveillance. If we want companies to follow the law in the future, it certainly sends a terrible message, and sets a terrible precedent, to give them a ``get out of jail free'' card for allegedly ignoring the law in the past.

I find it particularly troubling when some of my colleagues argue that we should grant immunity in order to encourage the telephone companies to cooperate with the Government in the future. Let's take a close look at that argument.

Telephone companies are already legally obligated to cooperate with a court order, and as I have mentioned, they already have absolute immunity for cooperating with requests that are properly certified. So the only thing we would be encouraging by granting immunity here is cooperation with requests that violate the law. That is exactly the kind of cooperation FISA was supposed to prevent.

Let's remember why: These companies have access to our most private conversations, and Americans depend on them to respect and defend the privacy of these communications unless there is clear legal authority for sharing them. They depend on us to make sure the companies are held accountable for betrayals of that public trust. Instead, this immunity provision would invite the telephone companies to betray that trust by encouraging cooperation with a legal Government program.

Since 9/11, I have heard it said many times that what separates us from our enemies is respect for the rule of law. Unfortunately, the rule of law has taken it on the chin from this administration. Over and over, the President and his advisers have claimed the right to ignore the will of Congress if and when they see fit. Now they are claiming the same right for any entity that assists them in that effort. It is time for Congress to state clearly and unequivocally: When we pass a law, we mean what we say, and we except the law to be followed. That goes for the President, it goes for the Attorney General, and it goes for the telephone companies. The rule of law is not less important after 9/11. We can and we must defeat al-Qaida without breaking the law or sacrificing Americans' basic rights.

We have a choice. The Senate can stand up for the rule of law and let these cases go forward in the courts or we can decide to give our blessing to an administration that broke the law and the companies that allegedly helped it, and we can signal that we stand ready to bail them out the next time they decide to ignore the law. I urge my colleagues not to take that step. Support the rule of law by voting in favor of the Dodd-Feingold amendment No. 3907.

I again thank my colleague from Connecticut for his tremendous leadership on this issue. It has been extremely helpful in this effort. I sincerely thank him.

I ask unanimous consent that my remaining time be reserved.

Madam President, I yield the floor.

Madam President, last week the Senate adopted, by voice vote, amendment No. 3941 offered by the vice chairman of the Intelligence Committee, which would require the FISA Court to rule on challenges to the Government's directives within a specified timeframe. I opposed the

amendment because it unnecessarily restricts the court's ability to consider important constitutional and statutory issues related to this legislation. The amendment limits the time for the court's consideration of challenges to directives issued under this law to a mere 30 days, unless ``necessary to comport with the due process clause of the Fifth Amendment.'' There would be no other basis for the court to extend its deliberations to a 31st day.

This amendment could have serious unintended consequences. There may be many decisions that the court can, in fact, make in a relatively short period of time. But there may also be issues that the court will have to consider that could take longer. There have been many questions raised about the meaning of many of the provisions of this bill. The court will certainly be required to address some of these complex statutory interpretation issues. There have also been serious constitutional concerns raised about this bill that the court will need to consider.

This is new legislation that radically changes how surveillance is conducted, and there are numerous complex issues that the court will be called on to resolve. And, unlike this body, the court will have to consider in detail the legality and constitutionality of the law as it is implemented, which could involve extensive factual development, as well as review of relevant precedent.

There are many other reasons why the court would want to extend its deliberations that would not implicate fifth amendment due process rights. A party may seek more time to prepare its pleadings. The court may request more information. The Government may wish to prioritize other more pressing issues or may have a host of strategic reasons for seeking delay; or a crisis or national emergency could require the immediate attention of the intelligence personnel and lawyers assigned to present the Government's case to the court and could occupy the court's time and attention. Under those circumstances, we would surely want the court to focus its attention on the emergency at hand. But if there were also a pending challenge to a directive that the court must decide in just 30 days, it could be faced in a terrible dilemma. And only permitting the court to extend its consideration of a challenge if a refusal to do so rises to the level of a violation of the fifth amendment is far too restrictive.

I would also think there might be some concern that if the court does not have enough time to decide whether to enforce a directive issued by the Government, it could very well simply decide not to.

The Judicial Conference of the United States has made many of these same arguments in a letter sent today to Senators Reid and McConnell. The conference warns that the amendment could limit the court's ability to consider complex issues or could force the court to divert its attention from other pressing matters. Indeed, the letter warns that ``the national security significance of the cases before the FISC means there is a chance this provision could force the FISC by statute to forego consideration of another matter of paramount importance.''

This amendment could seriously shortchange the court's ability to determine whether the Government is acting legally or whether the bill is constitutional, on its face or as implemented in a particular situation. For that reason, I opposed this amendment.

amendment no. 3913

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

Madam President, I will support the bipartisan stimulus package today. It is better than doing nothing at all but not as good as we might have made it.

I commend the Finance Committee chair and ranking member, as well as our majority leader, Senator Reid, for their untiring efforts to make improvements to the House-passed stimulus package. In the last few weeks, there has been a broad consensus that a properly crafted fiscal stimulus package could help ease the economic downturn we are experiencing. The measure passed by the House was a step in the right direction, and the amendment we will adopt today will improve on the House bill. Notably, the bipartisan amendment will ensure that 20 million lower income seniors who rely primarily on Social Security will be included in the tax rebate program, and it will do the same for a quarter of a million wounded veterans with lower incomes.

I regret that a particularly effective and desperately needed provision from the Finance Committee proposal was dropped from this agreement; namely, an extension of unemployment insurance benefits for the long-term unemployed. Not only was that provision the right thing to do to cushion the impact of this economic downturn on those who have been out of work for half a year or more, but we know from past experience that such a provision was one of the most effective ways to stimulate the economy. Another provision we should have included in this package, expansion of food stamps benefits, also shares those attributes. I very much hope that soon Congress will act on those two ideas.

Finally, I was disappointed that little or no effort was made to ensure the cost of this stimulus package would not add to our already mountainous public debt that will be borne by our children and grandchildren. Make no mistake; there is no free lunch here. Even though no offsetting savings were included in this package to defray its cost, the bill will be paid--if not by this generation, then certainly by coming generations. Our children and grandchildren will pay for our stimulus package.

Congress owes those future generations some consideration. We should return to the fiscally responsible budgeting of the 1990s, when we actually balanced the Federal books and began to pay down the Federal debt. We need not do so in a way that hurts the present economy, but paying for this stimulus package over the next 5 years or so would not undermine current economic growth, and Congress should consider such an approach.

Mr. President, this is the amendment we call Use Limits Amendment, amendment No. 3915.

This amendment gives the FISA Court the option of preventing the Government from using information on U.S. persons that it has collected using targeting or minimization procedures that are later found to be illegal.

As the legislation now stands, if the Government uses procedures that are later declared unlawful, there is nothing to stop it from using the information it collected illegally. This does not make any sense, and it takes away any incentive for the Government to develop lawful procedures the first time around. It is also not consistent with the approach FISA takes with other illegally collected information.

If the Government conducts emergency surveillance that is later found to be improper, FISA already prohibits the Government from using that information. Importantly, under my amendment, information about foreigners or information that indicates a threat of death or bodily harm could always be used by the Government, even if it were collected under illegal procedures. The FISA Court also has the discretion to allow the Government to use illegally collected information about U.S. persons.

So it is an extremely modest safeguard, a very reasonable amendment. I urge my colleagues to support it.

I yield the floor.

How much time do I have?

Mr. President, I wish to respond to the argument of the Senator from West Virginia that this amendment would somehow impose a burden because it would require the Government to identify information about U.S. persons. I wish to be clear, these use limits kick in only if the Government proposes to disseminate and use the information, in which case the bill's minimization procedures already require the Government to identify information about U.S. persons. So I can't for the life of me figure out what the Senator is referring to when he refers to new burdens. My amendment imposes no additional burden at all.

I yield back the remainder of my time.

Mr. President, the reverse targeting amendment No. 3913 was approved by the Senate Judiciary Committee and is cosponsored by several of my colleagues. It simply ensures that the new authorities contained in this bill are not used to engage in what is known as reverse targeting of Americans here at home. FISA requires the Government to get a court order when it is wiretapping Americans on American soil. Reverse targeting refers to the possibility that the Government will try to get around this requirement by using these new authorities to wiretap someone overseas, when what the Government is trying to do and is interested in is the American with whom that foreign person is communicating.

The bill pretends to ban reverse targeting, but this ban is so weak as to be meaningless. It would allow reverse targeting as long as the Government can claim it has some interest, however minor, in the foreigner it is wiretapping. The amendment says the Government needs an individualized court order when a significant purpose of the surveillance is to acquire communications of a person inside the United States.

The Director of National Intelligence has testified that this practice, reverse targeting, is a violation of the fourth amendment. That is what the DNI says. This amendment merely codifies that constitutional principle.

I strongly urge my colleagues to support this important amendment.

Mr. President, I ask for the yeas and nays.

Mr. President, today I am pleased to reintroduce the Global Service Fellowship Program Act. This important bipartisan bill would provide more Americans the opportunity to volunteer overseas and strengthen our existing Federal international education and exchange system. The U.S. Government needs to be taking a greater role in providing opportunities for U.S. citizens to volunteer overseas, and my bill will enhance U.S. efforts to be a global leader in people-to- people engagement.

People-to-people engagement is one of the United States' most effective public diplomacy tools and, today more than ever, we need to be investing in every opportunity to improve the perception of the U.S. overseas.

I often hear from constituents about their experiences volunteering overseas and how those experiences impacted their lives and the lives of those who they were helping. For example, I received an email from Eric Englund, from my hometown of Middleton, who wrote, ``[My wife Jane and I] have been privileged to participate in international volunteering experiences in 2006 and 2007. In 2006 we spent 4 weeks in China teaching English to Chinese primary and secondary English teachers in Xingping, China. * * * In 2007 we spent two weeks in Tanzania with Habitat for Humanity. . . . We return[ed] from both experiences humbled in the understanding of how lucky we have been and hungry to continue to share with others a cultural exchange that is hopefully symbiotic in helping us grow/learn/appreciate while at the same time sharing our knowledge, compassion and abilities with others.'' This email captures the life-changing effects that international volunteering often has on those who choose to commit their time and resources to volunteering across the globe.

Unfortunately, not enough of my constituents are able to volunteer overseas because of financial or time-related barriers. In an effort to reduce these barriers, I initially introduced, along with my colleague Senator Coleman, the Global Service Fellowship bill. Today, I am reintroducing a new and improved version of the bill.

This new bill builds on the original legislation but now ensures fellowships are not taxed, addresses the importance of geographical diversity in the selection process, and increases collaborative opportunities for the U.S. Agency for International Development and the Department of State in establishing and administering the program.

Additionally, congressional involvement has been changed from the original bill. The new version calls on participants to engage with Members of Congress prior to their departure and again upon their return by providing Members with a brief report of their experiences and impact abroad. The changes are intended to ensure that fellows are selected based on the merits while preserving for Members of Congress the opportunity, if they so wish, to engage directly with constituents who have volunteered for significant overseas work, whether by a personal exchange, a public event or correspondence that recognizes the value of their volunteer efforts.

Studies have shown that in areas where U.S. citizens have volunteered their time, money, and services, opinions of the U.S. have improved. Greater investment in volunteer opportunities has significant potential to improve the image of the U.S. overseas and while we have important programs already in place--the Peace Corps, programs administered through the Department of State's Bureau of Education and Cultural Affairs, and

USAID's Volunteers for Prosperity--we can and should be doing more.

My bill would cost $150 million, which is more than offset by a provision that would require the IRS to deposit all of its fee receipts in the Treasury as miscellaneous receipts. CBO has estimated that this offset will save $559 million over 5 years for net deficit reduction of just over $400 million.

I am pleased that my colleagues, Senators Coleman, Casey, Cochran, Kerry, Voinovich, and Whitehouse have joined me in re-introducing this bill. This program will be a valuable addition to our public diplomacy and our private humanitarian efforts overseas and I encourage my colleagues to support the bill.

Mr. President, today I am pleased to reintroduce the Global Service Fellowship Program Act. This important bipartisan bill would provide more Americans the opportunity to volunteer overseas and strengthen our existing Federal international education and exchange system. The U.S. Government needs to be taking a greater role in providing opportunities for U.S. citizens to volunteer overseas, and my bill will enhance U.S. efforts to be a global leader in people-to- people engagement.

People-to-people engagement is one of the United States' most effective public diplomacy tools and, today more than ever, we need to be investing in every opportunity to improve the perception of the U.S. overseas.

I often hear from constituents about their experiences volunteering overseas and how those experiences impacted their lives and the lives of those who they were helping. For example, I received an email from Eric Englund, from my hometown of Middleton, who wrote, ``[My wife Jane and I] have been privileged to participate in international volunteering experiences in 2006 and 2007. In 2006 we spent 4 weeks in China teaching English to Chinese primary and secondary English teachers in Xingping, China. * * * In 2007 we spent two weeks in Tanzania with Habitat for Humanity. . . . We return[ed] from both experiences humbled in the understanding of how lucky we have been and hungry to continue to share with others a cultural exchange that is hopefully symbiotic in helping us grow/learn/appreciate while at the same time sharing our knowledge, compassion and abilities with others.'' This email captures the life-changing effects that international volunteering often has on those who choose to commit their time and resources to volunteering across the globe.

Unfortunately, not enough of my constituents are able to volunteer overseas because of financial or time-related barriers. In an effort to reduce these barriers, I initially introduced, along with my colleague Senator Coleman, the Global Service Fellowship bill. Today, I am reintroducing a new and improved version of the bill.

This new bill builds on the original legislation but now ensures fellowships are not taxed, addresses the importance of geographical diversity in the selection process, and increases collaborative opportunities for the U.S. Agency for International Development and the Department of State in establishing and administering the program.

Additionally, congressional involvement has been changed from the original bill. The new version calls on participants to engage with Members of Congress prior to their departure and again upon their return by providing Members with a brief report of their experiences and impact abroad. The changes are intended to ensure that fellows are selected based on the merits while preserving for Members of Congress the opportunity, if they so wish, to engage directly with constituents who have volunteered for significant overseas work, whether by a personal exchange, a public event or correspondence that recognizes the value of their volunteer efforts.

Studies have shown that in areas where U.S. citizens have volunteered their time, money, and services, opinions of the U.S. have improved. Greater investment in volunteer opportunities has significant potential to improve the image of the U.S. overseas and while we have important programs already in place--the Peace Corps, programs administered through the Department of State's Bureau of Education and Cultural Affairs, and

USAID's Volunteers for Prosperity--we can and should be doing more.

My bill would cost $150 million, which is more than offset by a provision that would require the IRS to deposit all of its fee receipts in the Treasury as miscellaneous receipts. CBO has estimated that this offset will save $559 million over 5 years for net deficit reduction of just over $400 million.

I am pleased that my colleagues, Senators Coleman, Casey, Cochran, Kerry, Voinovich, and Whitehouse have joined me in re-introducing this bill. This program will be a valuable addition to our public diplomacy and our private humanitarian efforts overseas and I encourage my colleagues to support the bill.

Mr. President, I will use some of my time on a couple of these amendments. I know it must be difficult for the Chair to figure out which time to apply to which amendments, but I will try to identify them.

First, I will speak with regard to Feingold-Webb-Tester amendment No. 3979, which the Senator from Missouri was addressing. He referred to our concern that the rights and privacy of Americans could be affected by this bill as a ``tired accusation.'' I object to that characterization. I think this is clearly the kind of thing we should be worried about. I will tell you what is a tired accusation: the notion that somehow our amendment would affect the ability of the Government to listen in on Osama bin Laden. That is a tired and false accusation. The Senator has said that if bin Laden or his No. 3 man-- whoever that is today, because we killed the last No. 3 man--calls somebody in the United States, we cannot listen in to that communication unless we have an independent means of verifying that it had some impact on threats to our security from a terrorist threat. That is what he claims, that we would not be able to listen in on that conversation. That is false.

The Feingold-Webb-Tester amendment specifically does not require a FISA Court warrant to acquire and disseminate the communications of any foreigner overseas who is suspected of terrorism. Mr. President, there is no separate threat requirement. The amendment merely requires that the Government label terrorism-related communications that have one end in the United States so they are traceable for subsequent oversight. And it simply requires that when the Government accesses and disseminates terrorist-related communications that it has already acquired that the court just be informed with the brief certification. I don't know where the Senator gets this bizarre idea that somehow you cannot listen in on a conversation of Osama bin Laden. I don't think it is credible to anybody that that would be the case.

Finally, he raises the concern that somehow we are insulting the FISA Court, saying they are not doing a good job. To the contrary, we are trying to give them the power to enforce their will. We are trying to give them the ability to say: Wait a minute. You guys are not doing what you said you were going to do. That is not an insult. That is essential for the court to be able to do its job. Let's worry less about the alleged and, frankly, false notions about the feelings of a secret court and worry more about the rights and privacy of perfectly innocent Americans.

Mr. President, I turn now to amendment No. 3915, another amendment I offered known as the use limits amendment. As I explained earlier this week, my amendment simply gives the FISA Court the option of limiting the Government's use of information about information about U.S. persons that is collected under procedures the FISA Court later determines to be illegal. That is about as minimal a safeguard as you can get.

It is unfortunate that some of those who oppose my amendment are mischaracterizing what it does. The Attorney General and the DNI sent the majority leader a letter yesterday in which they expressed their objections to this amendment. Twice in the letter, they stated that this amendment would place limits on the use of information that doesn't concern U.S. persons. That is flat-out false, Mr. President. The use limits proposed in this amendment specifically apply to ``information concerning any United States person.'' That is what it says. Use limits in this amendment apply only under those circumstances. There is nothing ambiguous about this language. These patently false claims that the amendment applies to information about non-U.S. persons just show the lengths to which opponents of the amendment will go to generate opposition to this or any other reasonable amendment.

We have also heard that the amendment would create a massive operational burden. Mr. President, that also just isn't true. The Government already does what is necessary to implement the use limits in the amendment.

First, declassified Government responses to oversight questions of the Congressional Intelligence Committees reveal that the Government is already labeling communications obtained under the so-called Protect America Act. So the Government already tracks which communications are acquired under these particular authorities, which would be the first step here.

Second, the Government already has to comply with minimization requirements that are supposed to protect information about U.S. persons. These requirements kick in whenever the Government wants to disseminate any acquired communications that include information about U.S. persons. That means intelligence analysts already have to determine, before any communications collected under these authorities can be used in any of the contexts we are talking about here, whether they contain any information about U.S. persons. Indeed, the administration constantly reminds us of this fact when claiming that minimization requirements do enough to protect Americans.

Mr. President, given that the Government is already required and equipped to examine any communications it proposes to use in order to determine whether U.S. person information is present, the argument that the amendment somehow imposes a massive new burden is very difficult to understand.

Perhaps the explanation lies in the administration's repeated statements

that the amendment would put limits on the use of information about non-U.S. persons. If this were true, then it is conceivable that my amendment would create an additional operational burden. But those statements are completely and utterly false, as I have explained. The amendment explicitly states that the use limits apply to ``information concerning any United States person''--information that is already subject to minimization requirements.

I want to also address the argument the chairman of the Intelligence Committee made that this amendment is somehow different than the existing use limits for emergency surveillance. The chairman argued that the amendment, unlike the emergency use limits, could affect ``thousands'' of communications. As I pointed out yesterday, the amendment addresses that concern by creating a huge exception to the use limitations, an exception that is not present in the emergency use limits provision. Under the amendment, the FISA Court can allow the Government to use even information about U.S. persons that is obtained by unlawful procedures, as long as the Government fixes the problem with the procedures. So, in fact, this amendment is far less restrictive than the use limits for emergency surveillance, despite the claim of the chairman otherwise.

Even more important, we have to remember what these thousands of communications are. The only information that would be subject to use limits is information about U.S. persons collected under illegal procedures--procedures that failed to reasonably target people overseas. The underlying bill prohibits the Government from collecting this information in the first place. My amendment gives this prohibition some teeth by limiting the use of information that has been illegally collected.

The opponents of this amendment may argue that the government has no intention of doing anything that would be unreasonable under the law. My response is, if it does, there ought to be some enforcement. There ought to be a way to make sure that doesn't happen, not just the assurance of the chairman and vice chairman.

Moreover, if the Government has collected thousands of communications illegally, isn't that all the more reason to try to contain the damage and limit the impact on innocent Americans? That is not hamstringing the Government; it is just requiring the Government to comply with the law that we are actually passing.

My amendment simply provides an incentive for the administration to follow the law as it is written. If we pass a law that has no meaningful consequence for noncompliance with the law, I think we are taking a real gamble as to whether the administration will choose to comply. I am not personally willing to accept the odds on that one.

Once again, I urge my colleagues to support this amendment, and I reserve the remainder of my time and yield the floor.

Mr. President, I will speak with regard to amendment No. 3913, the one about which the chairman just spoke, the so-called reverse targeting amendment I have offered. Reverse targeting is what happens when the Government wiretaps persons overseas when what they are really interested in is the Americans with whom these foreigners are talking. I think most of my colleagues would agree that this bill should not open up a backdoor to get around the requirement in FISA for a warrant to listen in on Americans at home.

The lack of any substantive arguments against my amendment is made clear by the letter the DNI sent on Tuesday. The arguments just offered by the chairman were almost identical to the arguments offered by the DNI and by the Attorney General. In fact, that letter, which severely mischaracterizes the amendment, actually underscores why the amendment is good both for civil liberties and for national security.

First, the letter confirms that reverse targeting is not, in fact, prohibited by the underlying bill. We keep hearing the chairman and vice chairman say it is already prohibited. It is not. The DNI writes that the Intelligence Committee bill only prohibits warrantless collection when the American is ``the actual target.'' That cannot be read as a prohibition on reverse

targeting. That is just a prohibition on direct targeting of an American at home, and it does nothing to protect Americans from what the DNI himself has said is unconstitutional.

Second, the letter cites ``operational uncertainties and problems,'' but it does not bother to identify what those are. Yes, my amendment would require a new procedure, just like everything else in this bill, but the Government should already have procedures to protect the constitutional rights of Americans. If it does not, that is all the more reason to adopt the amendment.

Third, the letter actually makes one of the strongest arguments in favor of my amendment when it warns of insufficient attention to the American end of an international terrorist communication. If a foreign terrorist is talking to an American inside the United States, the intelligence community should get a FISA warrant on that American so it can listen in on all his communications, and it certainly would have no problem getting that warrant. Without that warrant, the Government will never get the full picture of what that American is doing or plotting. Yet the DNI's letter seems to argue that the Government would not want to get a FISA Court warrant to listen in on all the communications, including the domestic communications, of a terrorist inside the United States. I do not believe this is a serious argument, but if it were, it would suggest that our Government is not doing everything it can do to track down terrorists.

Finally, the letter seriously mischaracterizes the amendment. The amendment does not bar acquisition of communications between terrorists overseas and their associates in the United States. It does not in any way affect the Government's ability to discover and collect those communications. It does not apply to incidental collection of communications into the United States, and it does not even apply when the Government has identified a known individual with whom the foreign terrorist is communicating. Only when a significant purpose of the surveillance is to get information on a person inside the United States does the Government need to get a court warrant. That is not just required by the Constitution of the United States, it is how the Government can most efficiently and effectively protect us.

I hope my colleagues will support this modest proposal to prevent these new powers from opening a huge loophole to the requirement in FISA that the Government get a court order to target Americans in the United States.

Mr. President, I reserve the remainder of my time on this amendment, and I yield the floor.

Yes.

Mr. President, I ask unanimous consent that the pending

amendment be set aside so that I may call up an amendment.

Mr. President, I call up amendment No. 3913.

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

Mr. President, this amendment, approved by the Senate Judiciary Committee, assures the new authorities contained in this bill will not be used to engage in what is known as ``reverse targeting of Americans.'' FISA requires the Government to get a court order when it is listening in on Americans on American soil. Reverse targeting refers to the possibility that the Government will try to get around this requirement by using these new authorities to wiretap someone overseas when what the Government really wants to do is listen to the American with whom that foreign person is communicating.

The Director of National Intelligence has testified that reverse targeting is a violation of the fourth amendment. This amendment merely codifies that constitutional principle. Specifically, the amendment says the Government needs an individualized court order when a significant purpose of the surveillance is to acquire communications of a person inside the United States. Now, this language is critical if we are to protect the constitutional rights of Americans because the underlying bill merely requires a court order if the purpose of the acquisition is to target the American.

A member of the Intelligence Committee, the Senator from Georgia, has said the underlying bill only prohibits surveillance when the Government is targeting a foreigner solely--solely--to listen to the American with whom that foreigner is communicating. Now, what does this mean? That means if the Government has any passing interest at all in the foreigner being wiretapped, it could intentionally conduct ongoing, long-term surveillance of an American inside the United States without a warrant. Now, the DNI says that would be unconstitutional, but it appears to be permissible under the current bill.

Recently declassified exchanges between the administration and congressional intelligence committees demonstrate why the issue of reverse targeting is a very real problem.

According to the administration, ``if valid collection of the foreign intelligence target indicates that the person in the United States is of intelligence interest,'' NSA would disseminate an intelligence report to the FBI, which can request the identity of that person and ``which could''--I repeat, could--``seek a FISA court order to conduct electronic surveillance in the United States.''

Mr. President, I ask unanimous consent to have printed in the Record the declassified documents to which I am referring.

Mr. President, this confirms that when the Government has an interest in an American, it is entirely up to the discretion of the FBI to decide whether the Government will seek a warrant to listen to that American's communications. But the FBI may not seek a warrant for any number of reasons, including lack of resources, insufficient coordination with other elements of the Government, or simple incompetence. A recent Justice Department inspector general report finding that the FBI's court-approved surveillance was disrupted because the Bureau failed to pay the telecommunications company on time should give us cause for concern.

In this case, this amendment would actually help us to stop terrorists by requiring that when a foreign terrorist talks to a person in the United States and that communication prompts a significant interest in the American, it can't just plain fall through the cracks.

Now, of course, the FBI might also choose not to seek a warrant because it doesn't have a real case against the American or because the Government doesn't want to tell the FISA Court the real reason it is interested in that American. So if the FBI doesn't seek a court order, can the NSA just listen in indefinitely to the communications of Americans so long as they are communicating with a person overseas? I am afraid to say, Mr. President, the answer appears to be yes. According to the administration, the FBI, upon receipt of the identity of the American, ``can decide whether or not to follow up. NSA surveillance against the foreign target would continue.''

The Government's apparent authority to continue indefinitely its surveillance of the international communications of Americans is not limited to terrorism cases where the Government should at least have an incentive to seek warrants against an American. It applies to all foreign intelligence. That includes the communications of an American who is talking to a person overseas who is not a terrorist suspect, is not suspected of any wrongdoing, and is not even an agent of a foreign power. Yet, no matter how interested the Government is in what that innocent American has to say, if the FBI doesn't think it is worth its while to seek a court order or if the FBI knows it couldn't get the order, the surveillance continues nonetheless.

This raises serious constitutional concerns, which is why the Rockefeller-Levin bill, the alternative to the Protect America Act that the Senate considered back in August, required procedures to seek a court order if electronic surveillance was ``of the nature or quantity as to infringe on the reasonable expectations of privacy of persons within the United States.'' Yet, in a recently released letter, the DNI complained about this requirement, saying it would take months to make this determination, that they couldn't determine in advance what such a procedure would say. In other words, even as the administration sought and obtained broad new authorities to collect communications of Americans, the administration refused to even consider when it might be violating the Constitution.

If the administration can't assure us that they respect the Constitution, Congress needs to step in. For all their promises that reverse targeting is not occurring, the record is clear there is nothing to stop it, and the administration has resisted establishing procedures to protect the rights of Americans. At the same time, it has sought to remove the FISA Court's ability to protect those rights.

This bill denies the FISA Court any role whatsoever in determining or monitoring why a person overseas has been wiretapped, which, of course, would help indicate whether the Government is conducting reverse targeting of an American. The bill denies the court the ability to monitor what becomes of the communications of Americans that are collected.

Mr. President, it is clear this administration won't protect the constitutional rights of Americans, and unfortunately, in the PAA, Congress passed legislation denying the courts any oversight role. It is critical Congress act to remedy this great problem. We have a unique opportunity to protect the Constitution and stop abuses before they happen. I hope my colleagues will support this amendment.

Mr. President, it appears there is no opposition to it, but nonetheless I will retain the remainder of my time.

Mr. President, I ask unanimous consent that the pending amendment be set aside so that I may call up another amendment.

Mr. President, I call up amendment No. 3912.

Mr. President, this amendment ensures that in implementing the new authorities provided in this bill, the Government is acquiring the communications of targets in whom it has some foreign intelligence interest and is not conducting bulk collection of all communications between the United States and overseas. This amendment was also approved by the Judiciary Committee.

This amendment is necessary because of the vast and overbroad authorities provided by the PAA and this bill. In public testimony, the DNI stated that the PAA would authorize the bulk collection of all communications between the United States and overseas. Now, that could cover every communication between Americans inside the United States and Europe or South America or the entire world. It could also include a communication between Americans overseas and their family and friends back home.

This bill is understood to allow the warrantless targeting of a terrorist suspect overseas even when that person is communicating with an American at home. The bill does not simply apply to terrorist suspects, however. It permits warrantless collection of communications between law-abiding Americans and people overseas who are not suspected of doing anything wrong at all. That is a problem that needs to be addressed. But this bill does not just allow the targeting of conversations of people who are not suspected of any wrongdoing; this bill actually allows the Government to capture all international communications to or from the United States in bulk, for no good reason. I think it is safe to say no one in this country expects that all of their international communications can be collected by the Government. That kind of communications dragnet would offend anyone who has ever communicated with friends, family, or professional associates in other countries. It raises serious constitutional questions. It would completely overwhelm the already inadequate minimization procedures that are the only bump in the road to completely uncontrolled dissemination of information about Americans. And there would be no court oversight whatsoever.

Bulk collection poses yet another serious constitutional danger. By collecting all international communications, the Government would be collecting communications between Americans overseas and their friends and family back home.

Senators Wyden and, Whitehouse and I have fought hard to ensure that Americans overseas cannot be intentionally targeted without a warrant, but bulk collection is a backdoor way to conduct the same warrantless wiretapping. Imagine the number of Americans' communications, not with foreigners but with other Americans--with other Americans, Mr. President--that would be acquired by the Government through bulk collection of, say, communications between the United States and Britain. That means Americans studying and working abroad, tourists passing through, and even U.S. troops stationed there.

Nothing--nothing--would prevent their communications from being collected and retained, and nothing would prevent those communications from being disseminated so long as the Government decided there was foreign intelligence value.

I ask my colleagues: At what point do we draw the line? At what point does the Constitution mean something? I am sure some of my colleagues will say we should trust the Government not to do this, not to abuse this. Yet the DNI has testified that while bulk collection is not needed:

It would certainly be desirable, if it was physically

possible to do so.

This is not a short-term piece of legislation. It is not reassuring that the intelligence community cannot currently collect all international communication. This bill does not sunset for years. What is technically possible in this area changes rapidly. Given the potential impact on the privacy and constitutional rights of Americans posed by bulk collection, Congress needs to act now. The DNI has put us on notice that bulk collection is both authorized and, in his words, desirable. Legislative silence on this issue is consent. This body must take a position on this issue. Should the Government be able to sweep up all international communications involving Americans at home and abroad? We cannot avoid that question. The bill, combined with the DNI's comments, places it squarely before us.

The amendment I have offered here is extremely modest. It merely requires the Government to certify to the court

that in using these broad new authorities to conduct warrantless surveillance, it is collecting the communications of foreign targets from whom it expects to obtain foreign intelligence information. The Government does not have to explain its foreign intelligence interests to the Court; it does not even have to identify its target. It merely has to say that an interest exists, and the court cannot challenge this certification. Because this amendment is so modest, opponents have raised an absurd hypothetical argument against it, and this is what it is: that it would somehow prevent the collection of communications into or out of an enemy-occupied city that the U.S. military is about to invade.

This argument is plain silly. My amendment requires that there be a foreign intelligence purpose for collection. This hypothetical posited by opponents of the amendment--and all individuals in a city our troops are about to invade would clearly have foreign intelligence value. That is what distinguished this case, in which the Government can easily make the certification required by the amendment and, on the other hand, the bulk collection of all communications between, say, the United States and Europe.

The reason absurd scenarios such as this have been raised as ``unforeseen consequences'' is that opponents of this amendment do not want to address the consequences of not passing it, the consequences of the Government collecting all communications between the United States and Canada or Europe or South America, the consequences of millions of innocent Americans' communications being collected, the consequences of already inadequate minimization procedures being overwhelmed by the collection.

These are not even unforeseen consequences. The DNI testified that if this were physically possible, bulk collection would certainly be desirable. The DNI envisions a country where the Government, if it were technologically feasible, would listen in on every international phone call made by its citizens and read every international e-mail. That is a police state, not the United States of America.

This amendment will help put to rest another concern that has been expressed about this legislation. In August, after the enactment of the PAA, the DNI stated:

Now, there is a sense that we are doing massive data

mining. In fact, what we are doing is surgical. A telephone

number is surgical. So if you know what the number is, you

can select it out.

And the DNI then added:

We have got a lot of territory to make up with people

believing that we are doing things that we are not doing.

The best way to assure Americans that the Government is not doing massive data mining of their international communications is not to authorize the massive collection of their international communications. The DNI cannot have it both ways. He cannot complain that people believe the Government is doing things it is not doing, and then oppose amendments to the law that would prohibit the Government from doing those very same things, especially when he has also said that bulk collection would be ``desirable'' if it were physically possible.

Finally, my amendment would help resolve a serious constitutional question surrounding this bill. When Americans are on the line, the constitutionality of the surveillance depends in part on how it is conducted. Bulk collection of millions of Americans' communications of which the Government has no interest in the person on the other end of the line could very well be unreasonable under the fourth amendment. We can eliminate this particular constitutional problem with the adoption of this very modest amendment.

I challenge anyone who opposes this amendment to stand up on this floor and explain to the American people why the Government should have the authority to engage in bulk collection of their private communications. Let's tell the American people the truth for once. Do not rely on hypothetical, unintended consequences that are easily answered. Explain why this very modest protection of the privacy of our citizens cannot be granted.

I believe this amendment brings this bill into line with its actual intent. It gives Congress a say in how far these vast new authorities will be taken, and it protects the civil liberties of Americans.

I urge my colleagues to support it.

I yield the floor and I reserve the remainder of my time.

The PRESIDING OFFICER (Mr. Salazar.) The Senator from Missouri.

It is sort of odd that we are debating these two amendments together. But there is one advantage. Under our system of government, the way we make sure that abuses don't occur is by passing laws to make it absolutely clear that abuses aren't occurring and can't occur. We are supposed to accept the say-so of one Senator who says we are not doing these things. We are not conducting bulk collection. We are not doing reverse targeting so don't worry. Yet he resists two amendments that simply make it clear you can't do these things. What is the objection on the merits to these two amendments? They would apply to an administration that initiated an illegal wiretapping program in disregard of the statutes. We have reason to believe that maybe they would do things we don't know about and don't like and don't think are legal, but we are supposed to simply take the word of one Senator instead of passing a law to clearly protect the American people.

With regard to reverse targeting, the Senator asserts that somehow having a provision that says ``the'' purpose would have to be targeting an American before a court order is required is going to protect us. But that doesn't protect us. That language would mean that any incidental reason for targeting a foreign person when the government wants to listen to the American would be a sufficient basis for ongoing warrantless surveillance of the American. In fact, the Senator from Georgia has indicated that what this means is that the sole purpose of the collection would have to be to obtain information on the American before a court order is required. If that is true, then it would be very easy for the government to bootstrap any incidental interest in a foreign target so that they can listen in on an American.

The DNI has said that reverse targeting is unconstitutional. What is the legitimate objection to making it absolutely clear that this can't be done in this statute? There is no substantive objection. The same thing goes for bulk collection. Again, one Senator assures the American people that the government is not doing bulk collection. That might be right. We may not be doing it now. But the DNI has said it would be desirable. He would love to do it. Yet the Senator will not permit a simple amendment that says that something that the DNI has also said is not actually needed but would raise serious constitutional problems, should be prohibited.

This is an amazing moment. Instead of legislating, we are supposed to trust. With regard to all of our international communication, we are supposed to simply trust one Senator's assurance that there is nothing to worry about. I suggest the American people deserve better than that.

To show the complete lack of content to these arguments, I addressed what the Senator, who was not out here at the time, has called the Fallujah example. He keeps saying that under this provision, you couldn't get information about what was going on in Fallujah when we were attacking al-Qaida and others there. That is absolutely false. I laid it out. As long as the Government says there is a foreign intelligence information purpose, of course they can do it. If there is a terrorist hotbed, they can do it. They just have to assert that. This argument that somehow this would interfere with that collection flies directly in the face of the bill and the amendment. There is no truth to that argument at all. The amendment is absolutely clear in cases of conflict, where the government merely needs to assert that it has a foreign intelligence purpose for conducting surveillance in that area. In that situation, the purpose is clear.

Because of the floor situation, the arguments related to these two amendments have merged, but it sort of works in a way because both of them are such straightforward, simple protections that a majority of the Judiciary Committee agreed had to be included in this bill to protect the rights of the American people.

I reserve the remainder of my time.

Briefly, Mr. President, it is important to put in the Record that the Judiciary Committee, after carefully considering this not just in the context of intelligence--and I do serve on the Intelligence Committee as well--but in the context of the relationship between intelligence and civil liberties, came to the opposite conclusion on both reverse targeting and bulk collection and voted by a majority to adopt the very sort of amendments I am proposing. With regard to the vice chairman's assertion that I had not put forward any concerns about the impact of these authorities on the civil liberties of Americans, I, in fact, sent a classified letter to the DNI in December expressing serious concerns about the implementation of the Protect America Act and its effect on the rights of Americans. I can't discuss classified specifics here. But the fact is, these aren't merely theoretical concerns.

One final point: The thrust of our concern about reverse targeting and bulk collection doesn't have to do necessarily with what has already occurred but what could occur, what abuses could occur if we do not clarify in the law that they should not be done. This is especially important in light of the fact that, as I have indicated, the Director of National Intelligence has said it would be desirable to do this bulk collection. If the DNI says that, wouldn't that be a reason to be a little concerned and to make sure it is clearly prohibited?

I reserve the remainder of my time.

Mr. President, is it necessary for me to ask that the pending amendment be set aside?

I ask unanimous consent that the pending amendment be set aside.

Mr. President, I call up amendment No. 3979.

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

Mr. President, the Protect America Act we passed last year was sold repeatedly as a way to allow the Government to collect foreign-to-foreign communications without needing the approval of the FISA Court. Last week, the Vice President defended the Protect America Act by talking about the need to wiretap without a court order ``one foreign citizen abroad making a telephone call to another foreign citizen abroad about terrorism.''

Now, this is something all of us support, every one of us. But what the Vice President did not mention--and what rarely gets discussed--is the Protect America Act actually went much further. It authorized new sweeping intrusions into the privacy of countless Americans. The bill the Senate is considering to replace the PAA does not do nearly enough to safeguard against Government abuse. So this amendment--the Feingold- Webb-Tester amendment--would provide those safeguards, while also ensuring that the Government obtains the information it needs to fight the terrorists who threaten us.

I am, of course, extremely pleased to have the support and cosponsorship of Senators Webb and Tester, as well as Senators Biden, Sanders, Kennedy, Menendez, Akaka, Dodd, and Obama. We have worked closely together to develop a workable solution to a difficult problem--a solution I hope the Senate can support.

Now, this is not about whether we will be effective in combating terrorism. This amendment in no way hampers our fight against al-Qaida and its affiliates. This is about whether Americans at home deserve more privacy protections than foreigners overseas. This is about whether anyone outside the executive branch will have a role in overseeing what the Government is doing with all the communications of Americans it collects inside the United States.

We all know the stakes are very high. I want my colleagues to understand the impact the Intelligence Committee bill being considered on the Senate floor could have on the privacy of Americans, because that is exactly what our amendment addresses. This bill does not just authorize the unfettered surveillance of people outside the United States communicating with each other; it also permits the Government to acquire those foreigners' communications with Americans inside the United States, regardless of whether anyone involved in the communication is under suspicion of any kind of wrongdoing at all.

There is no requirement the foreign targets of this surveillance be terrorists, spies, other types of criminals or even agents of a foreign power. The only requirements are that the foreigners are outside the country and that the purpose of the surveillance is to obtain ``foreign intelligence information,'' a term that has an extremely broad definition covering anything involving the foreign affairs of the United States.

The key, of course, is that no court reviews these targets individually. Only the executive branch decides who fits these criteria. So the result is 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 and virtually no judicial oversight. That is astounding, isn't it? Yet there has been very little discussion of it.

The administration has told us over and over this law is needed to capture foreign-to-foreign, terrorism-related communications. In the State of the Union last week, President Bush defended this law by saying:

To protect America, we need to know who the terrorists are

talking to, what they are saying, and what they are planning.

Even the administration's illegal warrantless wiretapping program, as described when it was publicly confirmed in 2005, at least focused on particular al-Qaida terrorists. But what we are talking about now is different. This is the authority to conduct a huge dragnet that will sweep up innocent Americans at home, combined with an utter lack of oversight mechanisms to prevent abuse.

These incredibly broad authorities are particularly troubling because we live in a world in which international communications are increasingly commonplace. Thirty years ago, it was very expensive and not very common for most Americans to make an overseas call. Now, though, particularly with e-mail, such communications are commonplace. Millions of ordinary and innocent Americans communicate with people overseas for entirely legitimate personal and business reasons. Technological advancements, combined with the ever more connected world economy, have led to an explosion of international contacts. Americans call family members overseas; students e-mail friends they met while they were studying abroad; businesspeople communicate with colleagues or clients overseas.

In fact, recently released declassified responses to congressional oversight questions highlight how broad these authorities are. The executive branch was asked whether it could acquire all the calls and e-mails between employees of a U.S. company and a foreign company the U.S. Government is targeting, with no requirement to get a warrant and no requirement that there be some link to terrorism or a specific threat against the United States. The administration did not deny this would be entirely legal under the PAA.

So any American who works at a company that does business overseas should think about that.

Americans should also think about the testimony of the DNI himself, in which he said the PAA would authorize the collection of all communications between the United States and overseas. In other words, the Government

has the authority to collect all international calls and e-mails into and out of the United States--every last one.

We often hear from those who want to give the Government new powers that we just have to bring FISA up to date with new technology. But changes in technology should also cause us to look closely at the need for greater protection of the privacy of our citizens.

If we are going to give the Government broad new powers that will lead to the collection of much more information on innocent Americans, we in the Senate have a duty to provide the necessary safeguards against abuse. That, of course, is what the Feingold-Webb-Tester amendment would do. It allows the Government to acquire all the communications of foreign targets communicating with other foreigners overseas. It also allows the Government to acquire all the communications of overseas terrorists, but it sets up additional safeguards--additional checks and balances--for communications of foreign targets the Government ultimately determines involves someone in the United States.

The amendment has several components. But let me reiterate that the amendment would permit the Government to freely acquire and share all foreign-to-foreign communications without any court oversight. This is, in fact, an enormous change from the pre-PAA law, and this amendment leaves those new authorities intact.

Let me quickly describe how the amendment would work. First, when the Government knows in advance that a foreign target is communicating with someone in the United States, it permits the Government to acquire, without a court order, those communications involving terrorism or suspected terrorists or if someone's safety is at stake. It permits the Government to acquire any other communications into the United States with a court order. The FISA Court would review and approve procedures for making these determinations. As I said, the Government could continue to acquire and use any communications its foreign targets have with other foreigners overseas. That surveillance would continue, again, without any court oversight. Our amendment permits that.

The second part of this proposal recognizes it is frequently not possible for the Government, in advance, to determine whether a particular communication is a purely foreign communication or involves one end in the United States. Thus, the amendment specifies that when the Government does not know in advance with whom a foreign target is communicating, it can acquire all the target's communications without an individualized court order--all of them.

But at some point--and this is one of the keys to our amendment--the Government may realize it has acquired a communication with one end in the United States based on procedures that are developed by the executive branch and reviewed and approved by the FISA Court. Under our amendment, it must then tag or segregate the U.S.-end communication in a separate database.

Now, we know this tagging process is feasible because the Government recently declassified the fact that it does something similar with information obtained under the PAA. The Government can then access, analyze, and disseminate any of these tagged U.S. communications if they involve terrorism or a suspected terrorist or if someone's safety is at stake. All they have to do is this: They have to simply notify the FISA Court after the fact and provide a brief certification that one of these circumstances apply. There is no requirement that these communications be destroyed, in case they include information that may later prove to be useful. The other tagged communications can also be accessed, analyzed, and disseminated if the Government obtains a court order.

The amendment also ensures there is independent oversight of this process. If the FISA Court has any concerns that the terrorism or emergency certifications are being abused, it has authority to ask for additional information, and to limit future access to certain communications if it ultimately determines the Government's certifications to the court are clearly erroneous.

Now, I do understand this amendment imposes a new framework that may take some time to implement. That is why the amendment would not require the Government to implement this new system for up to a year after enactment. I think that is plenty of time to work out any problems and get these procedures up and running.

The amendment also contains a critical oversight provision. It directs the inspectors general of the Department of Justice and the Department of Defense to audit the implementation of compliance with this amendment. These IGs as well as the FISA Court will have access to the American communications that the Government has acquired to make sure the authorities are not being abused.

Taken together, these provisions ensure that we know when Americans' communications are being collected so there is some baseline information available to the FISA Court, Congress, inspectors general, and other independent monitors for tracking impact of the legislation on Americans' privacy.

Tracking this type of information is also good for national security. We have heard the President tell us repeatedly in defense of his so- called terrorist surveillance program that if there are people inside our country who are talking with al-Qaida, we want to know about that. This amendment takes him at his word, and it requires him to set up procedures for identifying those communications in the United States where it is reasonably practical.

We have been hearing for years now that the U.S. Government needs authority to wiretap foreign terrorists outside the United States without individual court orders. This amendment permits that. To take one example, if the U.S. Government has targeted a member of al-Qaida overseas, under this amendment it can acquire all of that target's communications--all of them. If it determines the particular communication is with someone in the United States, the Government would tag it and it could access and disseminate it as long as the FISA Court is simply notified after the fact with a brief certification. That kind of focused, terrorism-related surveillance--the type of surveillance we most want our Government to be engaging in--would continue absolutely unabated. On the other hand, the amendment provides safeguards in case the Government is, in fact, conducting massive dragnet surveillance of communications with people in the United States. In that situation, yes, this amendment would then impose the oversight that is desperately needed. It will make sure that in situations not involving terrorism or personal safety, the FISA Court will play its important role in overseeing the Government's use of communications involving Americans. In other words, it will make sure these authorities are not abused.

We have heard a lot today about minimization procedures, which are supposed to protect against unnecessary disclosure of information about Americans' communications the Government collects, and the importance of giving the FISA Court power to enforce compliance with them. I strongly support that effort. I tried to initiate this issue in the Intelligence Committee. It has been very effectively taken up in the Judiciary Committee by the Senator from Rhode Island as well as the Senator from New York, and it is extremely important that we prevail in that amendment to get those protections. But the supporters of the Intelligence Committee bill claim that minimization procedures are enough to protect Americans' privacy. In fact, the minimization requirements in the Foreign Intelligence Surveillance Act are quite weak. They permit the widespread disseminations throughout the U.S. Government of information about U.S. persons if it is deemed foreign intelligence information which, again, is very broadly defined, and they permit dissemination of the identities of these U.S. persons if ``necessary to understand foreign intelligence information or assess its importance''--also a very loose standard.

Now, we know from our experience in the nomination hearing of John Bolton to be United Nations Ambassador how easy it is for Government officials to obtain access to those identities. And when the FBI receives reports referring to a U.S. person, according to recently declassified Government documents, it

will ``likely request that person's identity'' and will ``likely be'' the requirements for obtaining it. There are other minimization requirements and Government regulations, the details of which are classified. We know in any event that those can be changed at any time. Minimization is simply inadequate in the context of these broad new authorities. More is needed.

The amendment I have developed with Senator Webb, Senator Tester, and others is an extremely balanced and reasonable approach to addressing one of the most serious problems with this legislation. It gives the Government full access to foreign-to-foreign communications without any court oversight. And it provides access to communications between a foreigner and an American, if there is a terrorism link or if someone's safety is at stake, without the requirement of a court order. In other words, this amendment gives the administration what it asked for when it demanded these massive new powers. So when the Vice President says we need to pass legislation that permits warrantless wiretapping of ``one foreign citizen abroad making a telephone call to another foreign citizen abroad about terrorism,'' this amendment totally permits that. When the minority leader says the Government needs to be able to ``freely monitor new terrorist targets overseas,'' this amendment totally permits that as well.

But this amendment also provides safeguards to make sure that Americans' basic rights are being protected. Too many communications of innocent Americans are going to end up in Government databases under the PAA and under the Intelligence bill for us to ignore this very serious problem.

Any Senator who believes that Americans here at home deserve more privacy protections than foreigners overseas should support this amendment, and any Senator who believes the executive branch should not be granted far-reaching surveillance authorities involving Americans without independent oversight should support this amendment as well.

At this time I ask unanimous consent that the Senator from Montana, Senator Tester, be recognized to speak on this amendment, and after he has concluded his remarks, that the Senator from Virginia be recognized. Both of these presentations would be allocated from the time I control on this amendment.

Mr. President, let me say how grateful I am to the Presiding Officer, Senator Webb, and the next speaker, Senator Tester, new Members of the Senate who have delved into this very difficult subject and who have tried to achieve the right balance. I don't know of any Senators who are more concerned about protecting the lives of Americans from terrorists, but they also want to make sure that we get this right while protecting the privacy of Americans. So I thank both of them.

I yield to the Senator from Montana.

I ask the Senator if I can quickly respond to the Senator from Missouri.

Mr. President, responding to the comments just made, the Senator from Missouri, in responding to the Feingold-Webb-Tester amendment, tried to indicate that this will prevent us from going after spies and others from foreign states. First, under our amendment, of course the FISA Court can grant permission to wiretap spies. And, if it is a foreign state that is involved in terrorism, there would be no permission required under our amendment to wiretap the officials involved. It would not affect that.

It was also suggested this would somehow be very cumbersome. That suggests we are requiring permission for all foreign communications, but that is not true. Our amendment only affects, and only in a minimal way, communications from a foreign place to someone in the United States. That is not cumbersome.

Third, the Senator from Missouri suggests we will have to make the Government sift through all kinds of e-mails to figure out whether they can get at individual communications. That is the opposite of the way this works. This amendment creates an assumption in favor of collection. In other words, if the Government does not know for sure if a communication is foreign or domestic, the assumption is it is foreign until there is some indication that it is domestic. It is only then that the limited oversight provided by this amendment kicks in.

The final example the Senator from Missouri used shows how questionable these arguments are. If you can believe it, the Senator argued that if Osama bin Laden called someone in the United States, somehow our amendment would affect that. That is obviously false. Our amendment specifically allows an exception for any conversation by anyone in the United States with a terrorist overseas, without any special FISA Court permission. That argument shows the weakness of the opposition. The idea that the Senators from Virginia and Montana and I would suggest an amendment to not allow us to listen in on Osama bin Laden gives you a little clue that the arguments against this amendment are not based on the amendment we offered.

I thank the Senator from Vermont very much for understanding. I wanted to quickly respond to those arguments. I yield the floor and reserve the remainder of my time.

I thank the Senator from Maryland for his leadership on the sunset issue. I ask unanimous consent that the pending amendment be set aside.

Mr. President, I call up amendment No. 3915.

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

Mr. President, this amendment is a provision that was part of the Judiciary Committee bill. It was included in a larger substitute amendment adopted in that committee that was sponsored by Senator Leahy and cosponsored by Senator Feinstein, Senator Schumer, and others.

This amendment puts no additional limits on the Government's ability to target people overseas under this legislation or to collect information about those people. All it does is help ensure that the Government's procedures follow the requirements that are laid out in the bill. It fixes an enormous problem in the Intelligence Committee bill: the complete lack of any incentive for the Government to do what the bill tells it to do, namely, target people overseas rather than people in America.

There are many aspects of this bill that have generated strong disagreement, but one thing on which everyone in this Chamber should agree is that the Government should not be using these authorities to target the conversations of innocent Americans in their homes and offices in the United States. For that, the Government should have to get an individualized court order, as it always has.

The bill requires the Attorney General, in consultation with the Director of National Intelligence, to adopt targeting procedures that are reasonably designed to ensure that only people outside the United States are targeted. The bill also requires the Attorney General, in consultation with the Director of National Intelligence, to adopt minimization procedures to govern the retention and dissemination of information about Americans that is captured in the course of the surveillance.

All of this sounds good. The targeting procedures, in particular, are one of the few safeguards built into this legislation. Yet, remarkably, the Intelligence Committee bill does nothing to ensure the Government will follow them. They are basically non-binding. The FISA Court does not have to approve the procedures before they are

implemented. If the Government develops procedures that target Americans in this country, in violation of the law, the FISA Court can reject those procedures and require them to develop new ones but only after those procedures have already been in effect.

The bill does nothing to stop the Government from continuing to use and share the information it collected under those illegal procedures. Think about that. The Government develops and implements procedures the FISA Court later finds out are not reasonably designed to target people who are outside the United States, meaning the procedures likely permit the targeting of Americans here at home--something we all agree should not be permitted under this bill. Yet if the Government has been using those unlawful procedures while the FISA Court reviews them, it can keep and freely share any communications it gathered. In theory, the Government could play this game indefinitely, periodically revising its procedures and all the while using and disseminating information that has been illegally collected under prior procedures rejected by the court.

My amendment would solve this problem, at least in part, by allowing the FISA Court to put limits on the use of information about Americans the Government has gathered using procedures the court later finds do not comply with the requirements of this legislation.

These types of use limitations are not a new concept. Indeed, they are borrowed from another part of FISA. Under current law, if the Government in an emergency starts surveillance of an American without a court order and the court later determines the surveillance was not lawful, FISA places limits on how the Government can use that unlawfully gathered information. It is simple common sense: If the Government wasn't supposed to obtain this information under the law, then the Government shouldn't be permitted to use this information except in a true emergency. Otherwise, the limit on obtaining the information in the first place isn't worth the paper it is printed on-- it's just there for show.

This amendment adopts the same basic idea, but with significantly more leeway for the Government. Under the amendment, if the Government collects information using unlawful procedures, the default is that the Government may only use the information regarding U.S. persons--namely, the information the Government was never supposed to collect in the first place--in an emergency involving a threat of death or serious bodily harm to any person. But the Government can continue to freely use information collected on foreign persons.

The amendment also provides significant additional flexibility. It gives the FISA Court discretion to allow the Government to use even information about U.S. persons--information collected illegally--as long as the Government ultimately fixes the defective procedures. That is a very broad exception to the use limitation, but importantly, it is an exception that is overseen and applied by the FISA Court.

This is the bare minimum we could possibly do to encourage the Government to adopt and adhere to lawful targeting and minimization procedures in the first place. The practical effect of this amendment is simply to give the FISA Court the option of prohibiting the use of information about U.S. persons obtained illegally--in violation of the very act we are debating. Given the FISA Court's history of overwhelming deference to the executive branch, it is quite clear the court will exercise this option, if ever, only in the most egregious cases of Government excess or abuse. And as I said before, the Government will always have the ability to use information about foreign persons and any information that indicates a threat of death or serious bodily harm.

Just to be clear, no one is talking about holding the Government to a standard of perfection. The bill we are debating does not require the Government to develop procedures that ensure that in every instance, only people overseas are targeted. Instead, it requires the Government to develop procedures that are reasonably designed to target people who are reasonably believed to be outside the United States. So the use limitation I am proposing would come into play only if several things happen: First, the Government failed to get court clearance for its procedures before implementing them; second, the procedures were not even reasonably designed to meet the modest goal of targeting people reasonably believed to be overseas; third, the Government failed to correct the problem when given a chance to do so, or the FISA Court decides not to allow the use of the illegally collected information despite the procedures being fixed; fourth, the information involves a U.S. person; and fifth, the information does not indicate a threat of death or serious bodily harm. All these things have to be true in order for there to be any limitation here at all.

This is an extremely modest safeguard against unlawful procedures and one that gives the Government ample leeway to develop sound targeting procedures while simultaneously getting and using the information it needs.

It comes down to a very simple question: Do we mean what we say when we declare that Americans in this country should not be targeted under the powers we are giving the Government in this legislation? If we do mean what we say, we should have no problem saying that the use of information obtained through procedures that target Americans can be blocked by the FISA Court, since that information should never have been obtained in the first place. If we don't say that, then the targeting and minimization requirements are really just suggestions, and the supporters of the bill are not serious when they say they only want to go after foreigners overseas.

This amendment is based on a commonsense provision that already exists in FISA, with significant additional flexibility for the Government. It gives the Government a modest incentive to comply with the law, without taking away any of the legitimate tools it needs to respond to foreign threats. And it was already adopted by the Judiciary Committee.

I urge my colleagues to support the amendment, and I reserve the remainder of my time.

Madam President, let me agree with the Chair that it is important to clarify what these amendments do and do not do, not only for purposes of voting on the amendment, but for any court consideration of this issue.

The arguments of the chairman and ranking member do not relate, in many cases, to the amendment that has been put forward. The Senator from Missouri just made the argument that my amendment differs from the use limit provisions for emergency surveillance because my amendment would limit the use of information about foreign targets. But that is not true. That is not the amendment I offered. My amendment only puts limits on information about U.S. persons. The Government can always use information about foreign persons.

With regard to the comments of the Chair of the committee, the supposed burden of identifying which communications involved U.S. persons only comes up if the Government starts its targeting procedures before it gets court approval, and then fails to keep track of what it is collecting during that time. And it only comes up if the Government procedures are targeting Americans in the United States, in which case I think there are overwhelming policy and constitutional reasons why this information needs to be retrieved and its use limited.

Moreover, if the intelligence community is concerned about this potential burden, it can do what it says it already does with information gathered using the PAA, and that is to label it. Then it shouldn't have any problem finding it later on; it shouldn't be cumbersome.

The arguments of the chairman and ranking member would yield the following result: We set up rules for the Government, the Government doesn't follow the rules, and there is simply no consequence at all. The law has no teeth. There is no incentive for the Government to follow the rules.

Again, under my amendment, the Government can use information even about U.S. persons if it indicates a threat of death and serious bodily harm, and the FISA Court can allow the Government to use any information if the Government fixes the defective procedures. On that point, I am very troubled by the arguments of the Senator from Missouri. He says that my amendment will not even allow the Government to fix the problem with its procedures. That is absolutely false. I specifically stated that the Government is given an opportunity to fix the problem. If it fixes the problem, the FISA Court can allow it to use the information.

If the Government gets a complete free pass and faces no consequence whatsoever for adopting and implementing unlawful procedures, then the law's requirements for targeting and minimization procedures and the FISA Court's oversight of these procedures have no meaning. The Government would be allowed to intrude on the private conversations of Americans with no consequences.

This amendment contains a very modest series of provisions. It gives the court and the Government tremendous flexibility. If the Government makes even a reasonable effort to address the concerns of the FISA Court, there will be no disruption of the information the Government needs--and, of course, none is intended.

I reserve the remainder of my time.

Madam President, in response to the Senator from West Virginia, it is true that the use limits in my amendment would apply to any information about U.S. persons gathered under unlawful procedures, other than information indicating a threat of bodily harm. That is why the amendment provides significantly more flexibility to the Government than the use limits for emergency surveillance. The FISA Court can allow the Government to use even information about U.S. persons as long as the Government corrects the defective procedures. That is a huge exception that is not present in the emergency use limits provision.

Mr. President, I thank the chairman of the Intelligence Committee.

The Senate should not be having a cloture vote on this legislation today. What we should be doing is considering and voting on the amendments that I and my colleagues tried to bring up last week, and other amendments that have been proposed to improve this badly flawed bill. But the minority does not think we should have the right to actually legislate here. They expect this body to rubberstamp that bill.

I am afraid I have to say the conduct of the minority has been very disturbing on this. They insisted for weeks that it is absolutely critical to finish the FISA legislation by February 1, even going so far as to object repeatedly to efforts by the majority leader to extend for only 1 month the Protect America Act--a law they rammed through this Chamber in August--and they still don't want to give us another month so the Senate can carefully consider changes to it.

So the majority leader brought to the floor the Intelligence Committee bill, the legislation that the minority wanted to consider and urged the Senate to stay in session through the weekend to complete work on it. I criticized the majority leader for bringing the Intelligence Committee bill to the floor because I thought the Senate should be working from the much better bill reported by the Judiciary Committee, on which I also serve, but I would have thought the minority would be pleased by the majority leader's decision.

So what have they done in response? They have obstructed all efforts to actually work on this bill. They will not allow me to get a vote on the one amendment I have offered--an amendment cosponsored by Senator Hagel--and they will not allow me or anyone else to offer any other amendments. They filed for cloture the day this Senate began working on the bill, after allowing only a single amendment to be called up. They have effectively halted Senate consideration of this bill, despite the fact they are the ones--they are the ones--who are arguing that the February deadline is so critical. They seem to think that scare tactics peddled by administration officials, such as the Vice President, will be enough to pressure the Senate into letting them have their way. I certainly hope they are wrong.

Mr. President, as you well know, this legislation is in serious need of fixing. It authorizes widespread surveillance involving Americans at home and abroad. Yes, it does. Despite what the Senator from Missouri said, it certainly does do that. I have a number of amendments I want to offer, both to ensure that the FISA Court has more authority to oversee these authorities, and to guarantee Americans their fourth amendment rights. But I cannot even get a vote on the one, simple, straightforward, and extremely modest amendment I offered last week. This demonstrates how brazen these tactics are. This bipartisan amendment would merely require that the Government provide copies of important FISA Court orders and pleadings for review to the committees of jurisdiction in a classified setting, so that Members of Congress can understand how FISA has been interpreted and is being applied. You would think this amendment would be, as they say, a no-brainer, and yet the minority will not even consent to a vote on that.

But at least that one amendment is pending, and we will get a vote eventually. If the Republicans succeed in cutting off debate on this legislation, the Senate will not be able to vote on any other amendments, including the amendment Senator Dodd and I wish to offer to deny retroactive immunity to telecom companies that allegedly cooperated with the administration's illegal wiretapping program. It is unconscionable to think that the Senate should have to make a final decision on this legislation without even having an opportunity to debate and vote on whether to grant retroactive immunity to companies that allegedly cooperated with an illegal program.

And why are we in this situation? Because the minority and the administration think they are entitled to ram the deeply flawed Intelligence Committee bill through the Senate without any changes. It seems they are worried the Senate might actually pass some of the very reasonable amendments I and others would like to offer if they give us a chance to do so or perhaps they are trying to sabotage the bill and then figure out a way to blame that outcome on Democrats.

No Senator--no Senator--should go along with these cynical, strong- arm tactics. We have to stand up to the administration and stand up for our rights.

I strongly urge my colleagues to oppose cloture. Invoking cloture on this bill would be an abdication of our responsibility to consider legislation that will have a huge impact on the

American people for years to come. I hope even those who support the Intelligence Committee bill will think twice before voting to make this body a rubberstamp.

I yield the floor.

Mr. President, just over 1 month ago, in the days before the December 27 president election, I

noted that it had become the closest political contest in that country's history and that the two leading candidates were running robust, active campaigns. Although I also acknowledged the persistence of a deeply entrenched culture of corruption, I was encouraged by the growing engagement of Kenyan citizens and civil society organizations during the relatively peaceful, well-run, and competitive campaign season. I joined many others in hoping that the presidential and parliamentary elections held on that day would confirm Kenya's place among the world's most promising emerging economies and young democracies. Instead, that hope turned to dismay as we watched a blatant disregard for democratic principles and processes by the ruling party and an extraordinary disrespect for rule of law and human rights by both leading candidates' parties. The serious allegations of vote rigging, the rushed declaration of a presidential winner, and the destructive violence that have ensued are not only hurting the Kenyan people--they are jeopardizing Kenya's previous democratic progress.

With Somalia, Ethiopia, Sudan, and Uganda as neighbors in the volatile Horn of Africa, Kenya has long been regarded as a stable country making slow but persistent progress towards democracy. Kenya's press and courts seemed to be asserting their independence from the president-dominated government, and the mere fact that all pre-election opinion polls put the incumbent president neck-and-neck with his challenger from the main opposition party seemed to be an encouraging sign of a vibrant democracy. But on December 27 and in the days that followed, this progress came to a grinding halt. The Kenyan election suffered a fate all too common in Africa, with the votes tallied behind closed doors and the results finally announced by Kenya's Electoral Commission suggesting significant rigging.

The resulting frustration and deadlock have sparked violence, looting, destruction of property, and disruption of normal activity, creating an economic and humanitarian emergency on top of the current political crisis. Hundreds have been killed--some of them because of disproportionate use of force by Kenyan police as they seek to quell protests--and tens of thousands have fled their homes. Trust in the government, law enforcement, and even in one's neighbor has been seriously undermined.

The rival political leaders--incumbent President Mwai Kibaki and leader of the Orange Democratic Movement opposition party, Raila Odinga--can work to end this violence and destruction by refraining from using, inciting or condoning violent tactics. In recent days, Mr. Odinga and his supporters have demonstrated noteworthy restraint and it is essential that both parties respect the importance of a peaceful resolution as they begin to participate in an internationally brokered dialogue, led by former U.N. Secretary General Kofi Annan.

It is early days yet, and it remains unclear how committed these leading candidates are to seeing the negotiation through to the finish line. Although he has agreed to participate in an internationally brokered meeting with Mr. Odinga, Mr. Kibaki has been less than cooperative by rushing to appoint his own cronies to top cabinet positions and declaring he will follow the recommendations only of the Kenyan courts, which are also packed with his supporters. A political settlement is a key element in working through this electoral crisis but it must be part of a greater initiative that includes institutional reform. The road ahead is long, and I remain concerned that while both leading candidates have come to the table for negotiations, they could still decide to abandon the effort.

The past few weeks have shown how superficial Kenya's democratic gains may really have been. Now the international community--and the United States in particular--must live up to its rhetoric in favor of free and fair elections and institutional building. Many of the other countries that have suffered botched elections had a long history of such fraud but if this relatively stable and prosperous country is allowed to abandon its democratic experiment, the appeal of democracy will inevitably dim around the world. The citizens of Kenya as well as those from around the world had higher expectations for Kenya.

Resolving Kenya's current political, humanitarian, and economic crisis will require a coordinated international effort to engage all players in identifying and addressing the deeper problems that allowed the election fraud to occur and to ignite such a wave of outrage. Although a power-sharing agreement will likely be part of the solution, serious underlying problems need to be addressed. The challenges facing Kenya include an over-concentration of power in the office of the president, insufficient independence of the judiciary and electoral institutions, the need for professionalization of police and armed forces, and a persistent lack of transparency and inclusiveness throughout the political system. Only by addressing these root causes of the recent conflict will Kenya be able to truly restore stability and emerge from this crisis a stronger and more prosperous nation. Such a task will not be quick, easy, or cheap, but the alternative--not seizing this chance to bring about essential political reform--would be enduring, complex, and costly.

Last week, along with my ranking member on the Senate Subcommittee on African Affairs, Senator Sununu, and Senators Cardin and Kerry, I introduced a resolution to encourage the United States and the wider international community to resist the temptation for a quick fix in Kenya and to instead pursue a more intensive, encompassing plan for political transition and transformation. I hope the Senate will pass this resolution shortly. The administration has played an active role-- sending Assistant Secretary Frazer to Nairobi shortly after the elections to meet with both leading candidates--and I know Ambassador Ranneberger has been actively engaged in-country. But we need to see greater collaboration from all donors--with one consistent message that helps move Kenya to the next stage. I hope that Members of Congress from both parties will come together to support this initiative and the diplomatic and humanitarian efforts in Kenya that must follow in the coming weeks and months.

The U.S.-Kenya partnership is a longstanding and important one, but I can-not condone a continued relationship with a government that has apparently stolen an election and uses tactics of fear and intimidation to address dissent. This is not the Kenya I have come to know, and I am sure, not the Kenya its citizens want to know. We must close this devastating chapter by addressing the reasons for the electoral crisis and ensuing violence. Without such vital work, our historic partnership will deteriorate. There is a window of opportunity to ensure this does not happen, and I encourage all key actors to seize upon this opening. Above all, I want to see violence end and hope restored in Kenya.

Mr. President, I ask unanimous consent that Augustine Ripa, a legal intern in my Judiciary Committee office, be granted floor privileges for the remainder of the Senate's consideration of the pending FISA legislation.

Mr. President, I ask unanimous consent that following my remarks, the Senator from Florida, Mr. Nelson, be recognized for his remarks.

Mr. President, I strongly support Senator Leahy in his effort to replace the Senate Intelligence Committee bill with the version passed by the Judiciary Committee. I am a member of both of these

committees. As a member of both committees, I have been deeply involved in the process of having looked at those two products.

Having been involved in helping shape them, I urge my colleagues to support the Judiciary Committee version of this legislation. Indeed, I had hoped very much that the Senate would take up that bill to begin with rather than the flawed Intelligence Committee bill.

In December, I along with 13 other Senators, urged the majority leader to make the Judiciary Committee bill the base bill on the Senate floor. Unfortunately, our request was denied. So it is very disappointing that we are now forced to fight an uphill battle of offering the Judiciary bill as an amendment.

I would like to lay out the reasons the Senate should support the Judiciary Committee bill rather than the Intelligence Committee bill. One obvious reason is the Judiciary Committee bill, unlike the Intelligence Committee bill, does not contain unjustified retroactive immunity for companies alleged to have participated in an illegal wiretapping program.

I do not want to spend a lot of time on this today because there will be an opportunity to debate this issue as the Senate's consideration of this legislation moves forward. But I will say that having spent the last year and a half studying what happened at the NSA from 2001 to 2006, I strongly oppose immunity.

Under current law, telecom companies already get immunity as long as they follow certain requirements that are clearly spelled out in the law. I see no reason for Congress to change the rules this late in the game.

Today, I would like to focus on the other significant parts of these bills, the part contained in title I of each bill that contains sweeping new changes to the FISA law for years to come. Let me start off by pointing out that there are a number of similarities between title I of the Intelligence Committee bill and title I of the Judiciary Committee bill. Their basic structure is the same.

Title I of both bills authorize the Government to conduct surveillance of individuals reasonably believed to be overseas without court approval for individualized warrants. Both bills authorize the Government to develop and implement procedures to govern that type of surveillance and provide the procedures to the FISA Court for review after they have gone into effect.

Now, let's be clear. These are extraordinary powers that both bills give to the executive branch. And there is no difference between these two bills in terms of the intelligence they permit the Government to acquire. No difference between the bills as regards to the effort to go after those who may be trying to do us harm in this respect. Rather, the differences between these two bills comes in the form of critically important checks and balances on those powers.

The Judiciary bill contains a number of important changes to improve court oversight of these broad new executive branch authorities and to protect the privacy of law-abiding Americans--the privacy of law- abiding Americans. The Intelligence Committee bill, on the other hand, leaves it up to the executive branch to police itself, an approach that has all too often proven to be a bad idea throughout American history. I would say particularly under this administration.

Let me state as clearly as I can the differences between these two bills have nothing--nothing--to do with our ability to combat terrorism. They have everything to do with ensuring that the executive branch follows the rule of law and does not unnecessarily listen in on the private communications of Americans who are doing absolutely nothing wrong.

This debate is about whether the court should have an independent oversight role and what protections should apply to the communications of Americans that somehow get swept up in these broad new surveillance powers. If you believe the courts should have a meaningful oversight role with regard to Government surveillance, then you should support the Judiciary bill.

If you believe that Congress should safeguard the communications of Americans at home that could be swept up in a broad new surveillance program that is supposed to be focused on foreigners overseas, then you should support the Judiciary bill. It is as simple as that.

That said, the Judiciary Committee bill is not perfect. More still needs to be done to protect the privacy of Americans. That is why it should be an easy decision to support the Judiciary Committee bill as our starting point on the floor of the Senate as we work on this legislation.

Let me also remind my colleagues that the process by which the Judiciary Committee considered, drafted, and amended and reported out its bill was an open one, allowing outside experts and the public at large the opportunity to review and comment. With regard to legislation so directly connected to the constitutional rights of Americans, the result of this open process should be accorded great weight, especially in light of the Judiciary Committee's unique role and expertise in protecting those rights.

I also point out that several of the administration's criticisms of the Judiciary Committee bill have been based on technical drafting concerns. But in the version that Chairman Leahy has brought to the Senate floor, he has made the changes necessary to address those technical concerns. So I hope we do not hear any arguments in this floor debate about these issues that have already been addressed.

Exactly what are the differences between these two bills? First, the Judiciary bill gives the secret FISA Court more authority to operate as an independent check to the executive branch. For example, one provision in the Judiciary bill fixes an enormous problem with the Intelligence Committee bill; that is, the complete lack of incentives for the Government to target people overseas rather than to target people in the United States.

The Judiciary bill solves this problem by giving the FISA Court the discretion to limit the use of information concerning Americans when that information is obtained through procedures that the FISA Court ultimately finds are not--are not--reasonably designed to target persons overseas.

Another provision of the Judiciary bill ensures that the FISA Court has the authority to oversee compliance with what are called minimization procedures. Minimization procedures have been held up as the primary protection in the Intelligence Committee bill for the privacy of Americans whose communications get swept up in this new surveillance authority.

Now, I do not think current minimization procedures are strong enough to do the job. But to the extent that minimization can help protect Americans' privacy, its implementation surely needs to be overseen by the court. So that means giving the court the authority to review whether the Government is complying with the minimization rules and to ask for the information it needs to make that assessment.

Now, without this provision from the Judiciary bill, the Government's dissemination and use of information on innocent law-abiding Americans will occur without any checks and balances whatsoever, no checks and balances at all.

Once again, ``trust us'' will have to do. Now, I believe in this case, as in so many others, ``trust us'' is not enough. The Judiciary bill offers other types of oversight, as well. For one thing, it requires relevant inspectors general to conduct a complete review of the President's illegal wiretapping program, which, frankly, is long overdue.

It improves congressional access to FISA Court orders. The Intelligence Committee bill required the Congress to be provided with orders, decisions, and opinions of the FISA Court--that includes significant interpretations of the law--within 45 days after they are issued.

Now, that is good as far as it goes. But the Judiciary Committee bill adds that Congress should be provided with the pleadings, the pleadings filed with the court associated with the opinions that contain significant interpretations of law.

At times, the court's opinions merely reference and approve arguments made in the Government's pleadings. In that case, the pleadings may be critical to understanding the reasoning behind any particular decision. It is not enough just to have the cursory court opinion.

It also requires that significant interpretations of law not previously provided to Congress over the past 5 years

be provided. Congress needs to have the full story of how the law has been interpreted in the past in order to make the right decisions on what changes in the law should be made in the future.

The Judiciary bill also does a better job of protecting Americans from widespread warrantless wiretapping. First, it provides real protection against what is called reverse targeting. It ensures that if the Government is wiretapping a foreigner overseas in order to collect the communications of the American with whom that foreign target is communicating, it gets a court order on the American. Specifically, the Judiciary Committee bill says the Government needs an individualized court order when a significant purpose of its surveillance is, in fact, listening to an American at home.

The Director of National Intelligence himself said reverse targeting violates the fourth amendment. All this provision that I am raising does is simply codify that principle. The administration continues to oppose this provision.

I have a simple question: Why? Why is it opposed to a provision that prohibits a practice that its own Director of National Intelligence says is unconstitutional?

The Judiciary Committee bill also prohibits something called bulk collection. Now, that is this sweeping up of all communications between the United States and overseas. The DNI said in public testimony that this type of massive bulk collection would be--would be--permitted by the Protect America Act that is currently in effect. But he has also said that what the Government is seeking to do with these authorities is something very different.

It is, he said:

Surgical. A telephone number is surgical. So, if you know

that number, you can select it out.

So if the DNI has said he does not need broader authorities, there should be no objection to this modest provision which, again, simply holds the DNI to his word.

The prohibition against bulk collection ensures that the Government has some--some--foreign intelligence interest in the communications that it is collecting and not just vacuuming up every last communication between Americans and their friends and business colleagues overseas.

Targets do not need to be known or named individuals; they can be phone numbers, which is how the DNI has described how the Government collects. And the Government does not have to identify or explain its interest in the targets to the FISA Court. It merely has to make a general certification that individual targets exist.

As was already alluded to on the Senate floor, the Judiciary Committee bill also has a sunset of 4 years rather than 6 years, ensuring that Congress will reevaluate this law at least once before the end of the next Presidential term. And, critically, it contains a strong statement that Congress intends for FISA to be the exclusive means by which foreign intelligence surveillance is conducted. It also closes purported statutory loopholes that the Justice Department relied on to make its torture arguments that the congressional authorization for the use of force in Afghanistan authorized the President's illegal wiretapping program. The Judiciary bill makes clear, once and for all, that the President must follow the law.

For all of these reasons, the Senate should support the Judiciary Committee's product. Let me repeat what I said at the outset. The differences between these two bills have nothing to do with our ability to combat terrorism. Nothing. They have everything to do with ensuring that the executive branch adheres to the rule of law and does not necessarily listen in on the private communications of Americans. The fact that the administration is so strongly resisting these commonsense protections really says a lot. It ought to give pause to those who are considering opposing it.

It is time for Congress to stop being an enabler when it comes to this administration's indifference to the rule of law and, instead, start being a protector of the rights and freedoms of our citizens.

I urge my colleagues to support the Judiciary Committee bill.

I yield the floor.

Mr. President, I ask unanimous consent that the pending amendment be set aside and I call up amendment----

Mr. President, I call up amendment No. 3909.

Mr. President, I ask unanimous consent that Senator Dodd be added as a cosponsor.

Mr. President, this amendment is a straightforward reporting requirement that is critical if Congress is to understand how the foreign intelligence surveillance laws it passes, including this one, are being interpreted and applied. The issue is very simple. If the FISA Court makes a significant interpretation of the law, I think Congress should know about it. Congress can't conduct oversight of intelligence unless it knows what the court is and is not permitting the administration to do. Congress can't pass new legislation without knowing how the court has interpreted current law.

This issue is absolutely fundamental to our constitutional system. Congress has a responsibility to understand the impact of the laws it is passing. The courts should have the assurance that when they interpret the law, those interpretations will be communicated to the legislature. This isn't some unusual idea; this is how our system of

government has operated from its inception.

Specifically, this amendment does two things. First, it requires that when the court issues an opinion that includes a significant legal interpretation, the Government must provide the Government's pleadings associated with that decision to Congress. Now, these pleadings are often critical to understanding the legal interpretations of the court. This is in part because at times the court's opinions merely reference and approve the Government's arguments made in those pleadings. So it is really necessary to be able to review the pleadings themselves if you are going to understand the court's decision. They are also necessary to understand how the Government interprets and seeks to implement the law.

Neither Congress's oversight of the intelligence community nor any responsible legislating in the area of foreign intelligence surveillance can be effective without these documents. Yet, even today, as Congress considers this FISA legislation, the administration continues to refuse to provide Congress with important FISA Court pleadings.

The other reason is this: The amendment requires that the Government provide Congress with FISA Court orders that include significant interpretations of law over the last 5 years. Now, this is necessary because there was an enormous loophole in previous statutory reporting requirements that would be closed for the first time by this Intelligence Committee bill.

The Government didn't previously have to provide Congress with significant interpretations of law if they were included in court orders rather than court decisions or opinions. But we know from the administration's public announcement in January about the President's wiretapping program that such legal interpretations are, in fact, found in orders. For Congress to have any sense of how the court has interpreted the FISA statute, therefore, it is critical to understand recent jurisprudence. Congress needs to have access to FISA Court orders not just going forward but for the past 5 years as well.

This is not theoretical. The administration has refused to provide to Congress orders containing significant interpretations of law, and that is just what we know of. Without this amendment, we might never know what other important legal interpretations are out there.

To be clear, I first offered an amendment to require that FISA Court orders and other documents be provided to Congress through the intelligence authorization bill. It was approved on a bipartisan basis. It was later removed from the authorization bill, and only a watered- down version was included in the Intelligence Committee FISA bill. What my amendment today does is merely put the language back that has already been given the support of a bipartisan majority of the Intelligence Committee.

The most appropriate arrangement for Congress to obtain information related to the FISA Court would be for the court to provide it directly, without the involvement of the executive branch. So granting the executive branch any role in an exchange between the two other branches of Government, which is what my amendment actually allows, is, in fact, already a compromise.

But this amendment is a direct response to the administration's assertion that it can withhold FISA Court opinions and documents that include significant interpretations of law from Congress--not letting us read these things. Imagine if the administration tried to keep Supreme Court decisions from Congress. Even worse, imagine if the administration tried to keep from Congress a decision like Hamdan v. Rumsfeld, which rejected the administration's military commissions, just as Congress was considering the Military Commissions Act. Congress wouldn't stand for it. Yet that is exactly what is happening in the world of intelligence.

There are really no serious, substantive reasons to oppose this amendment. Orders and pleadings will be provided to the Intelligence Committee in a classified and, if necessary, redacted manner, just as FISA Court decisions are now. This is the furthest thing from an onerous reporting requirement. If there are FISA Court orders that include significant interpretations of law, Government lawyers certainly know what they are and where to find them.

It is sometimes said that intelligence in technical terms ``belongs'' to the executive branch. I disagree. But in any case, such an argument simply doesn't apply here. This amendment relates to the documents of an article III court. Just last month, that court confirmed in a rare public opinion that it has ``inherent power'' over its own records--in other words, they do not belong to the executive branch.

Finally, let me stress the scope of the information Congress needs before it can conduct effective oversight and legislative responsibility.

While the public is understandably focused on the FISA Court's involvement with regard to the President's warrantless wiretapping program, the FISA Court is actually responsible for interpreting all of the FISA statutes. Now, that includes the electronic surveillance issues we are considering here today but also physical searches of Americans' homes and the collection of sensitive business records, including library and medical records. Just as Congress should know how the Protect America Act and this FISA bill will be interpreted, it should have similar information with regard to the FISA provisions related to the PATRIOT Act and any other legislation that governs surveillance and affects the rights of Americans.

This simple reporting requirement is critical to congressional oversight, and I urge my colleagues to support it.

Not only is it assumed, but I just stated specifically on the floor a few minutes ago that it would exist.

Correct.

Mr. President, I rise to oppose the second-degree amendment. This is a classic example of people hiding behind a tragedy in this country to make arguments that have no merit. This argument, that the provision of pleadings, legal arguments by the Government, will somehow compromise sources and methods and bring down the intelligence system, has no merit.

When the Senator from Arizona asked me specifically whether my amendment allows for certain sensitive information to be redacted, my answer was yes, and he didn't respond. In fact, I had already stated that in my opening statement. Everything the Senator from Missouri referred to--confidential information, sensitive information about individuals we are going after, critical intelligence--all of that can be redacted. What the Senator wants to help the administration do is prevent Members of Congress--and by the way, these are kept classified; it is only people who have certain clearances who can see them--from seeing the pleadings provided to an article III court. That is the basis for their arguments.

As I pointed out in my statement, a lot of times the court just refers to the pleadings in its orders. So if we don't have the pleadings, we have no idea what the order is about.

Listen very carefully because this kind of argument is going to be used with regard to every aspect of this bill.

Everything is a red line. I want to tell you something, Mr. President, it is not a red line for the duly elected representatives of the people of this country in a classified setting to be able to review documents from a court proceeding. That is a ridiculous notion and disrespectful to the United States Congress that has an oversight role.

I was involved in the debate, as the Senator from Missouri knows, in the Intelligence Committee. We won fair and square on this vote by a majority bipartisan vote when it was first offered to the Intelligence Authorization bill. Because of various issues and pressures relating to other matters, we later had to compromise, and ultimately they said, why don't you do it on the FISA bill, which is exactly what I am doing. But the idea that somehow this endangers America to allow certain Members of Congress and a few staff members who have been cleared to look at the pleadings of the Government in a court proceeding takes this way too far.

There are no substantive arguments against doing this, and I urge Senators to reject the second-degree amendment and adopt the underlying amendment.