Floor Statements

Mr. President, my home State of Rhode Island has the distinction of being home to the oldest Jewish house of worship in the United States, the Touro Synagogue in historic Newport. This synagogue was founded in 1763. Today, the synagogue stands as a handsome landmark, designed by the famous colonial architect Peter Harris, a reminder of historic days past for a community that this year, 2008, will celebrate the 350th anniversary of the first Jewish settlement in Rhode Island and a living expression today of our Jewish community's faith.

But during the infancy of our young Nation, Touro Synagogue played a major political role in defining what religious freedom would come to mean to Americans.

In 1790, the congregation at Touro Synagogue wrote to President George Washington, then in only his second year in office, when he visited Newport on a political tour to rally support for an American bill of rights. The warden of the synagogue, Moses Seixas, sought Washington's assurance that religious freedom would be guaranteed to Jews throughout the country.

In those first tumultuous years of our Republic, there was much uncertainty as to the guaranteed rights of individuals. Our Declaration of Independence had declared certain unalienable rights to be self- evident, but our Constitution did not yet include our Bill of Rights. There was no guarantee of an American's right to freely exercise his or her religion as we have today in the first amendment.

President Washington's public letter to the Touro congregation, coming from a political leader whose word was gold, left no doubt that the United States Government would defend the religious freedoms of all people, including those whose beliefs were different from the common ones, and it assured that this Government would have no part in stifling the beliefs of any who chose to worship as their conscience and traditions directed.

It was, at the time, a revolutionary promise from a revolutionary man, and I am pleased to read the full text of this historic correspondence.

To the President of the United States of America.

Sir: Permit the children of the Stock of Abraham to

approach you with the most cordial affection and esteem for

your person and merits, and to join with our fellow citizens

in welcoming you to NewPort.

With pleasure we reflect on those days, those days of

difficulty and danger, when the God of Israel, who delivered

David from the peril of the sword, shielded your head in the

day of battle: and we rejoice to think, that the same Spirit,

who rested in the Bosom of the greatly beloved Daniel,

enabling him to preside over the Provinces of the Babylonish

Empire, rests and ever will rest, upon you, enabling you to

discharge the arduous duties of Chief Magistrate in these

States.

This was before the Civil War, so it was ``these States'' and not the ``United States.''

Deprived as we heretofore have been of the invaluable

rights of free Citizens, we now with a deep sense of

gratitude to the Almighty disposer of all events behold a

Government, erected by the Majesty of the People, a

Government, which to bigotry gives no sanction, to

persecution no assistance--

You will see in Washington's reply that the wily fox knew a good phrase when he saw one.

--but generously affording to all Liberty of conscience, and

immunities of Citizenship: deeming every one, of whatever

Nation, tongue, or language equal parts of the great

governmental Machine: This so ample and extensive Federal

Union whose basics is Philanthropy, Mutual confidence and

Public Virtue, we cannot but acknowledge to be the work of

the Great God, who ruleth in the Armies of Heaven, and among

the Inhabitants of the Earth, doing whatever seemeth him

good.

For all these Blessings of civil and religious liberty

which we enjoy under an equal benign administration, we

desire to send up our thanks to the Ancient of Days, the

great preserver of Men, beseeching him, that the Angel who

conducted our forefathers through the wilderness into the

promised Land, may graciously conduct you through all the

difficulties and dangers of this mortal life: And, when, like

Joshua full of days and full of honour; you are gathered to

your Fathers, may you be admitted into the Heavenly Paradise

to partake of the water of life, and the tree of immortality.

Done and Signed by order of the Hebrew Congregation in

NewPort, Rhode Island August 17th 1790. Moses Seixas, Warden.

And then came the President's reply.

To the Hebrew Congregation in Newport Rhode Island.

Gentlemen,

While I receive, with much satisfaction, your Address

replete with expressions of affection and esteem; I rejoice

in the opportunity of assuring you, that I shall always

retain a grateful remembrance of the cordial welcome I

experienced in my visit to Newport, from all classes of

Citizens.

The reflection on the days of difficulty and danger which

are past is rendered the more sweet, from a consciousness

that they are succeeded by days of uncommon prosperity and

security. If we have wisdom to make the best use of the

advantages with which we are now favored, we cannot fail,

under the just administration of a good Government, to become

a great and happy people.

The Citizens of the United States have a right to applaud

themselves for having given to mankind examples of an

enlarged and liberal policy: a policy worthy of imitation.

All possess alike liberty of conscience and immunities of

citizenship. It is now no more

that toleration is spoken of, as if it was by the indulgence

of one class of people, that another enjoyed the exercise of

their inherent natural rights. For happily the Government of

the United States, which gives to bigotry no sanction, to

persecution no assistance requires only that they who live

under its protection should demean themselves as good

citizens, in giving it on all occasions their effectual

support.

It would be inconsistent with the frankness of my character

not to avow that I am pleased with your favorable opinion of

my Administration, and fervent wishes for my felicity. May

the children of the Stock of Abraham, who dwell in this land,

continue to merit and enjoy the good will of the other

Inhabitants: while every one shall sit in safety understood

his own vine and figtree, and there shall be none to make him

afraid. May the father of all mercies scatter light and not

darkness in our paths, and make us all in our several

vocations useful here, and in his own due time and way

everlastingly happy.

G. Washington.

I yield the floor.

Madam President, I appreciate very much the courtesy of my chairman in allowing me some time. I should not take more than 10 minutes.

Once more we find ourselves debating President Bush's warrantless wiretapping program, a self-inflicted wound that this administration has visited upon our Government.

The way this Senator sees it at least, the Bush administration broke faith with the American people with its warrantless surveillance program, and now we in Congress are meant to clean up the administration's mess. Unfortunately, we are doing so with a legislative fix that in one critical area--immunity for the phone companies--misapplies the substantial evidence standard, trespasses constitutional boundaries, and breaks dangerous new ground in American law.

We would not be in this position if the Bush administration had sought and received a court order in the first place, as it easily could have. There would be no debate over granting immunity since a company following a court order is protected. Or the Bush administration could have used FISA procedures to seek and receive lawful assistance from telecommunications companies. But the administration chose to go outside the law. I suspect the administration wanted to prove a point about the President's article II authority, so it deliberately avoided these well-established mechanisms. If so, the Bush administration deliberately walked these telecommunications companies into this problem and this litigation to vindicate ideological ambitions. But the problem is now before us.

I have worked diligently and across the aisle to try to develop thoughtful solutions to the problem. In February, with the distinguished Senator from Pennsylvania, Senator Arlen Specter, the learned ranking member of the Judiciary Committee, I offered a bipartisan amendment that would have substituted the U.S. Government for the telecommunications companies if it was determined they acted in good faith and with the reasonable belief that compliance was lawful.

Similarly, I supported an amendment offered by Senators Dianne Feinstein and Bill Nelson, drawn from the Specter-Whitehouse amendment, that offered immunity to those companies that acted, again, in good faith and with the reasonable belief that compliance was lawful.

Good faith is the proper standard here. It is the standard repeatedly referenced by respected Members in this

Chamber who have asserted that any telecommunications company that assisted the Government acted in good faith.

My friend, Senator Martinez, said:

The fact is that these companies acted in good faith, and

they acted in good faith when they were called upon to assist

our intelligence professionals.

My friend on the Judiciary Committee, Senator Kyl, noted:

[t]he general rule that private citizens acting in good

faith to assist law enforcement are immune from suit.

Senator Chambliss, my colleague on the Intelligence Committee, argued that America's telecommunications carriers ``should not be subjected to costly legal battles and potentially frivolous cases . . . merely for their good faith-assistance to the Government.''

Senator Allard said that ``the U.S. Government owes these patriotic companies and their executives protections based on the good-faith effort they made in working with our intelligence community.''

Senator Bond, vice chairman of the Intelligence Committee, noted that ``the intelligence community advised us . . . that these companies acted in good faith, and we in the committee agreed with them.''

We seem to have agreement amongst Members in this body that good faith is the proper standard. So we should let a court, which has available to it the procedural mechanisms necessary to get to the bottom of this in a confidential manner, make the determination, the fundamental determination: Did these companies, if they received Government requests, act in good faith? We may in this body assume it to be true, but it is not our role as Members of Congress to decide on the good faith of an individual litigant in a matter that is before a court.

Many Senators have not even been read into the classified materials that would allow us to reach an informed conclusion about good faith. We as a body are incapable of making an informed conclusion because as a body, we have not had access to the necessary materials. So we should provide a fair mechanism for a finding of good faith by a proper judicial body with the proper provisions for confidentiality.

This simple determination can be made with limited proceedings based largely on the record of any documents provided to the companies. We ask so little--a proper hearing, applying a proper standard. Unfortunately, the Bush administration opposed this option, and I have not had the chance to offer this amendment. For all its talk, the Bush administration was evidently and tellingly not confident that a good- faith threshold could be met.

So instead of requiring a finding of good faith, the bill states that immunity will be granted if the Attorney General's certification is ``supported by substantial evidence.'' It is worth drilling down to some lawyering for a moment to reflect on what ``substantial evidence'' means in this context.

The first point is that ``substantial evidence'' standard is essentially a meaningless standard, given the minimal showing necessary to be granted immunity. The elements as to which substantial evidence must exist are these: The intelligence activity was ``authorized by the President''; ``designed to detect or prevent a terrorist attack''; and ``the subject of a written request or directive . . . indicating that the activity was (I) authorized by the President; and (ii) determined to be lawful.''

That is it. That is achieved by simply putting into evidence the piece of paper containing the Attorney General's certification.

But the substantial evidence standard implies more than that, and it is out of place here. This standard is typically applied in what is called a ``sufficiency challenge''--a judicial inquiry into whether there is substantial evidence to support a jury verdict. I cannot tell you how many sufficiency challenges I have withstood as an attorney general and U.S. attorney. It is standard fare in criminal cases.

The substantial evidence standard is also frequently used for judicial review of an administrative agency's adjudication or rulemaking.

So the substantial evidence standard is used to review the results of adversarial proceedings where the parties had a chance to make their case and build their record, and the court then reviews to determine whether there is substantial evidence to support the agency's or jury's determination.

The substantial evidence standard is a standard used to weigh the result of an adversarial process. Not so here. Here the court will apply the substantial evidence standard to an Attorney General's unilateral certification. That is bad lawyering. That is discouraging, when it would have been so easy to get this right.

Let me close with a few words about the constitutionality of title II. It is a core principle of our system of separated powers that no branch of Government may exercise powers allocated to another branch. The United States Supreme Court has said that the Framers of the Federal Constitution felt in drafting our Constitution ``the sense of a sharp necessity to separate the legislative from the judicial power.'' This sense of sharp necessity, the Court said, was ``prompted by the crescendo''--the words the Court used--``the crescendo of legislative interference with private judgment of the courts.''

If you wish to see a case of legislative interference with private judgment of the courts, look no further than what we are doing today.

Plaintiffs in the telecom litigation have brought causes of action alleging that their core constitutional rights were violated. By providing immunity, Congress is telling the judicial branch: You cannot hear an entire category of constitutional claims. Congress is intruding upon a core function of the judicial power--the resolution of constitutional disputes.

The U.S. Supreme Court has warned on more than one occasion, most recently in the 1988 case of Webster v. Doe, that ``a serious constitutional question would arise if a federal statute were construed to deny any judicial forum for a colorable constitutional claim.''

This statute has as its very purpose to deny a judicial forum to these colorable constitutional claims.

I further note that Congress stepping in to pick winners and losers in ongoing litigation on constitutional rights not only raises separation of powers concerns but it veers near running afoul of the due process and takings clauses. Article II of this bill is the most extreme measure Congress, as best as I can find, has ever taken to interfere in ongoing litigation. Congress usually provides at least a figleaf of an alternative remedy when it takes away the judicial one. For example, in the National Childhood Vaccine Injury Act, Congress put a stop to Federal court actions but provided an alternative path for claims to be heard. The Public Readiness and Emergency Preparedness Act eliminated liability for people who take certain countermeasures during or after a pandemic outbreak. But a special fund for victims was established by Congress.

Today's effort is a naked intrusion into ongoing litigation. Where will that stop? Will Congress be able to rove at will through litigation anywhere in the judicial branch, picking winners and losers as we like? We don't just trespass on the separation of powers; we trespass onto dangerous ground.

If I were a litigant, I would challenge the constitutionality of the immunity provisions of this statute, and I would expect a good chance of winning.

I spoke before the Independence Day recess about article I of this bill, how proud I am of the work that went into it and the exemplary results we have achieved. Chairman Rockefeller, in particular, but many others as well, deserves commendation, first for resisting the Bush administration's unseemly efforts to create a legislative stampede and, second, for thoughtfully crafting an improved and modernized FISA Act that contains many new important protections for Americans. I will incorporate my reference of my previous remarks on that subject, but suffice it to say as an attorney general and a U.S. attorney who has run wiretap vehicles, article I is a fine piece of legislation which makes it all the more disappointing that the Bush administration will not tolerate an amendment to article II that allows for a proper hearing before the proper court set to the proper standard. It would be so easy to get article II right. So close and yet so far.

I close by reiterating my deep anger that the Bush administration unnecessarily created this mess in the first place, my frustration with the solution that Congress has established to the immunity question, and my hope that our great judicial branch will vindicate the error we in the legislative branch make today.

Does the distinguished Senator yield me time to reply?

I have no objection, of course.

Of course, I did say in my remarks that I believed that this body is incapable of making a determination as to the good faith of the telecommunications companies for the reason the distinguished Senator from Pennsylvania has indicated, to wit, very few of us, less than a majority and certainly not all of us, have been briefed as to what the actual facts are, what was provided, if anything, to the telecommunications companies that would support our finding of good faith.

As I said in my remarks, I think essentially every Senator who has spoken to this question has implicitly referred to good faith, directly referred to good faith as the implicit standard.

I view it, although I defer to the far greater experience and learning of my colleague from Pennsylvania--I see it less as a constitutional issue of deference than one of legislative prudence. I think it is not prudent for us as a Senate to take it upon ourselves to make the good-faith determination. I think that is a determination that should be made by a judicial tribunal, it should be made with appropriate provision for confidentiality, and it should be made by the judicial agency that customarily makes good-faith determinations.

It isn't our legislative role to do that. So I agree with the concern of the distinguished Senator about this. I see it less as a constitutional limitation on my ability as a Senator to cast my vote, which I think is untrammeled. I can cast my vote about things I know nothing about, have not studied on, am totally uninformed, if I wish. It would be bad and imprudent for me to do it, but I do not believe the Constitution prevents me from doing it, so I see it more as a matter of legislative prudence.

I am aware of none. I cannot guarantee that our research has been complete and exhaustive. But, certainly, the recent efforts that Congress has done where an immunity from liability has been an issue, either responding to pandemics or responding to vaccines, what Congress has done there is to create an alternative remedy.

I am aware of no precedent for the Congress of the United States stepping into ongoing litigation, choosing a winner and a loser, allowing no alternative remedy. And I believe the constitutional problem with doing that as a separation of powers matter is particularly acute where the cause of action that is being litigated in the judicial branch is a constitutional claim. And Judge Vaughan is listening to constitutional claims. That is the subject matter of the litigation.

So I believe it will be determined by a court that ultimately this section of the legislation is unconstitutional, in violation of the separation of powers, because we may not, as a Congress, take away the access of the people of this country to constitutional determinations heard by the courts of this country.

Madam President, before I discuss for a moment the Foreign Intelligence Surveillance Act, I applaud my colleague, the distinguished Senator from Pennsylvania, for his remarks. In the year and a half we have served together in this body, he has stood out as a powerful advocate for consumers, particularly Pennsylvania consumers. He has always had a very thoughtful, helpful, and productive approach to the solutions he has put forward and espoused. It is an honor for me to follow him on the Senate floor here.

On the question of the Foreign Intelligence Surveillance Act, I will talk about the immunity question for telecoms at another time. It is not yet clear what amendment will be allowed to be offered. I thought I would talk about two other issues at this point. The first is the process that has got us here. I do wish to pay particular tribute to the chairman of the Senate Select Committee on Intelligence, Jay Rockefeller, for how steadfast he has been in pushing through this process.

We in the Senate have also been done a great service by our colleagues in the House of Representatives, who stood fast against the Bush administration efforts to stampede this legislation through without proper negotiation and without the basic process of back and forth that ordinarily improves legislation. It has made for a better piece of legislation. It also makes for a notable contrast with what happened a year ago, when we first took up this legislation.

I wish to talk for a minute about that because it was a very disappointing episode, I believe, in the Senate's history, and it is one I wish to make sure we chronicle because it should not be repeated.

In order to understand what I am going to say, it will be important to remember the schedule at the time. I have just replicated July of 2007, and the early days of August here. The first time the big sort of stampede push began, for me at least, was when the Director of National Intelligence, Admiral McConnell, met with me on July 11 in the secure confines of the Senate Intelligence Committee to tell me what he wanted. There had been a big FISA bill that had everything but the kitchen sink in it. It was clearly going no place. He realized he would have to focus on what he wanted, and he said three things. These are from my notes of that meeting.

No. 1, we need to compel the telecoms to help us; No. 2, we need to get foreign-to-foreign conversations, not Americans, foreign-to-foreign conversations without having to go to the FISA Court; and No. 3, we need a warrant if we are going to wiretap Americans. We accept that.

So I said to him: That is fine, but you do not have any legislation. We are suspicious of what is going to be in this legislation when it shows up, so the sooner you can get it written and the sooner you can get it to us the better, because the devil is going to be in the details and we need a chance to look it over. That was on July 11.

The draft legislation was circulated on July 27. It was circulated, at least to me, by mail, so I didn't get it on July 27. I got it over the weekend, the following Monday, on July 30. The Friday from Monday delivery stunt is one we have seen before. But what concerned me was that once that legislation was delivered, the Bush administration began to whip up everything they could do to try to panic Americans about what was going on.

On July 28, that Saturday, President Bush gave a radio address, saying:

Our intelligence community warns that under the current

statute we are missing a significant amount of foreign

intelligence that we should be collecting to protect our

country. Congress needs to act immediately to pass this bill

so that our national security professionals can close

intelligence gaps and provide critical warning time for our

country.

He asked us to work together to pass FISA modernization now, before we leave town, and said our national security depends on it. That is what he said here.

The Senate promptly picked up the chorus with one of my colleagues saying we would be deaf during August to discussions of threats being carried on by al-Qaida and others seeking to do us harm if we did not pass the legislation.

Another colleague said:

This is a time when the Director of National Intelligence

and the Secretary of the Department of Homeland Security have

said it is a high threat month and it is imperative for

national security that we adopt this now.

Another one of our colleagues said:

Make no mistake, inaction on our part needlessly subjects

every American to increased danger. We need to act.

Those are just several high points of a real campaign to try to drive this issue by public fear.

Well, here is what concerned me. If, when the President spoke on July 28, national security was that vitally affected by the speed of this legislation; if every day that went by we were missing intelligence, because of an intelligence gap, of al-Qaida plots that were being developed then and there to attack us; if that were true also on the 3rd, why wasn't it true back here on July 11 and 12 and 13, 14, 15, and all the way through here when they circulated the draft on July 27?

Here is what they sent us. This. It is 12 pages. That is it. Double spaced. I could write 12 pages of legislation double spaced in 17 hours if our national security depended upon it. It would not take me 17 days. So when it takes them 17 days to write 12 pages of legislation and then deliver it on the Monday before we recess and suddenly there is an explosion of concern about immediate al-Qaida attacks that are being planned that we need to get into, something does not add up. I believe the result was what I call the August stampede, and as a result we passed, bluntly, a very poor piece of legislation, the so-called Protect America Act.

This piece of legislation does a number of very good things to repair some of the damage in the Protect America Act.

The first is protection for Americans when we travel abroad. Americans travel a lot now. They travel on business, they travel on vacation. It is a lot more expensive now given the Bush administration's oil prices, but people still travel a lot. The rule had been, under the Protect America Act, that if you were traveling abroad, you had no statutory or judicial protection of your privacy, none whatsoever. They could listen to your telephone calls, they could take your BlackBerrys, e-mails, anything--it was open season. There were no statutory or judicial protections for Americans once they set foot outside of the country. The only protection was an executive order, 12333, which said that if the Attorney General determined that you as an American were an agent of a foreign power, then they could listen, then they could surveil, then they could intercept, but only if the Attorney General made that determination. So there was a protection, but it was only an executive order--nothing statutory, nothing judicial. Then we looked into the opinions that underlie the Bush warrantless wiretapping program, and here is what I found.

The flaw in the Protect America Act is that it contained no statutory, no judicial protections for Americans once they were traveling abroad and put them at the mercy of the executive branch of Government to be wiretapped at will, protected only by an Executive order. Our discovery, in the course of looking at the classified legal opinions that supported the warrantless wiretapping program, we discovered this rule that had been inserted by the Office of Legal Counsel:

An executive order cannot limit a President. There is no

constitutional requirement for a President to issue a new

executive order whenever he wishes to depart from the terms

of a previous executive order. Rather than violate an

executive order, the President has instead modified or waived

it.

Well, as a theory, I think that is, frankly, deeply flawed legally.

In my examination of Attorney General nominee Mukasey, I asked him what the force of an Executive order was. He answered me saying:

Should an executive order apply to the President and he

determines that the order be modified, the appropriate course

would be for him to issue a new order, or amend the prior

order.

I think that is not only the correct but the obvious solution. But we were left in a situation in which an American traveling abroad, without statutory protection, without judicial protection, and with the only protection from the executive being a protection that the President cannot be limited by and that he can ignore at will--frankly, that was no protection at all.

So we worked very hard in the committee--and it has persisted through the entire lengthy process we have been involved in--to make sure that an American, whether you are in the United States or traveling abroad, has the protection of a judicial order before your Government can wiretap you. And that has been achieved. That has been an important achievement.

A second achievement has been in the area of minimization. I know the Presiding Officer was a prosecutor in Minnesota. I have run wiretap investigations as a U.S. attorney, I have run wiretap investigations as an attorney general, and I have seen firsthand how important minimization is to a wiretap investigation.

Minimization is what happens when you have the authority to wiretap somebody, but because you have the authority to wiretap one person, they could be talking to somebody else who is not part of the criminal or national security activity involved, and if that proves to be the case, you have to minimize that to protect the rights of the third person they are talking to. In the old days, the FBI agents would literally sit there with their earmuffs on listening and flip the switch on and off to see whether the conversation was still an innocent conversation or related to some criminal matter.

Now it is more complex, but those minimization procedures did not previously have any judicial oversight. They only were required to be filed. Under this bill, the Attorney General shall adopt minimization procedures. It is mandatory. But more than that, the Foreign Intelligence Surveillance Court is given authority to review those minimization procedures; specifically, to determine whether those procedures meet the statutory standards we require for minimization procedures. So that is particularly important.

Finally, this statute for the first time recognizes ``the inherent authority of the FISA Court to determine or enforce compliance with an order or a rule of such court.'' So they not only get the minimization procedures, they get to approve the minimization procedures. If it is determined that the executive branch isn't following them, they can check for compliance, and they can enforce the procedure. That is a substantial, additional improvement that brings this in line with the traditions of wiretap surveillance within the United States.

Another significant improvement has been in the area of exclusivity. FISA has always said that ``it shall be the exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electric communications may be conducted.''

That was clearly the intent of Congress, as courts, including in the

Andonian decision, have agreed. However, we have a problem again with the Office of Legal Counsel. The Office of Legal Counsel said this:

Unless made a clear statement in the Foreign Intelligence

Surveillance Act that it sought to restrict presidential

authority to conduct wireless searches in the national

security area--which it has not--then the statute must be

construed to avoid a reading.

I don't know how you get ``which it has not'' out of the clear language of the Foreign Intelligence Surveillance Act saying this is the exclusive means. But once we found out that in these classified opinions the Office of Legal counsel had suggested this language right here either didn't exist or didn't mean anything, it had to be solved. Thanks to the leadership of Senator Feinstein, in particular, there has been great energy put into improving the exclusivity provision. I think it is now an exclusivity provision that would defeat this type of, frankly, improbable legal analysis and clearly define that it is Congress's intent in the FISA statute to take every possible avenue it can to limit executive surveillance activities to those that are performed within the statutory authority of this particular legislation.

The last thing is reverse targeting. There has been considerable concern about allowing the Government to identify a foreigner who is in touch with Americans regularly and target that foreigner with the reverse targeting purpose to actually pick up the conversations of the American and dodge the requirement for a warrant for judicial review vis-a-vis the American. There are strong provisions in here that require that regulations and procedures be developed to prevent that.

I hope to be able to discuss the statute further, as we get to the discussion about immunity. But I will conclude by summarizing that the process we went through to get to this piece of legislation, particularly article I of this bill, was a very proud moment for this Senate and for this caucus, for Chairman Rockefeller. It has been infinitely better than the degraded process we went through last August in the atmosphere of stampede. I think the quality of the underlying legislation shows it. I hope as we continue to work together in the Senate on other issues, we continue to follow the process that took place with respect to this iteration of the FISA bill, and we never go back to the kind of hectic, imprudent stampede we were put through last August. Second, the elements of article I are improved. This is, in article I, a bill we can we very proud of. We will have our dispute about the immunity provisions. I will have my thoughts on that for later. But there is much that has been accomplished and great credit is due particularly to Chairman Rockefeller for those accomplishments.

I yield the floor and suggest the absence of a quorum.

Mr. President, every student of American history knows the story of the Boston Tea Party, the men who crept onto British ships moored in Boston Harbor on December 16, 1773, to destroy shipments of tea that the English sought to tax. They were patriots who yearned for liberty, for ``no taxation without representation,'' and who stepped into history.

Only a few miles south and more than a year earlier, however, another group of men had engaged in another act of patriotism--yet these men are largely forgotten outside my home State of Rhode Island. Every year, in their memory, Rhode Islanders celebrate Gaspee Day. This is their story.

During the buildup to the Revolutionary War, as tensions between England and its American colonies grew increasingly strained, King George III stationed the HMS Gaspee, under the command of LT William Dudingston, in the waters off Rhode Island. Its mission was to search incoming ships for smuggled goods and enforce the payment of taxes.

On June 9, 1772--16 months before the tea party in Boston--the sailing vessel Hannah was traveling from Newport to Providence when it was intercepted by the Gaspee and ordered to stop to allow a search. On board the Hannah, Captain Benjamin Lindsey refused and continued on his course, despite warning shots fired by the Gaspee. The smaller and more maneuverable Hannah then raced up Narragansett Bay and into the safety of Pawtuxet Cove. The hulking Gaspee tried to chase the Hannah but ran aground in the shallow waters of Namquid Point. The Gaspee was stuck, awaiting the higher tides of the following day.

Meanwhile, Captain Lindsey proceeded on his course, and upon arriving in Providence he met with John Brown, a community leader who later founded Brown University. The two men arranged for a meeting of local patriots at Sabin's Tavern, in what is now Providence's East Side, later that day. At the meeting, the assembled group of Rhode Islanders decided that action must be taken. Gaspee was a symbol of their oppression, and she was helplessly stranded in Pawtuxet Cove. In short, the opportunity was too good to pass up.

As night fell on June 9, 1772, there was no moonlight on the waters of Pawtuxet Cove. The Gaspee lay silent on the sand bar at Namquid Point. But just a few miles away in Providence, a team of about 60 men led by John Brown and Abraham Whipple was preparing for an assault that would soon break that silence. They armed themselves, boarded longboats, and set course for the Gaspee.

After paddling the longboats 6 miles down the dark waters of Narragansett Bay, the men reached the Gaspee and surrounded it. Brown called out and demanded that Lieutenant Dudingston surrender his vessel. Dudingston refused and instead ordered his men to fire upon anyone who attempted to board the Gaspee.

True to form, these brave Rhode Islanders seized the challenge. They forced their way aboard the Gaspee, and a struggle ensued. In the melee Lieutenant Dudingston was shot in the arm by a musket ball: Rhode Islanders had drawn the first blood of the American Revolution, right there in Pawtuxet Cove.

Brown and Whipple's men took control of the ship from the British crew and transported the captive Englishmen safely to shore. They then returned to the abandoned Gaspee for one final act of defiance to the crown. The men set fire to the Gaspee and watched as its powder magazine exploded, leaving the whole ship burning down to the water line. The place was eventually renamed Gaspee Point.

If that is not an act that defines the American struggle for independence, then I don't know what does.

Since that night in June when the Gaspee burned, Rhode Islanders have marked the event with celebration. This year, as I do every year, I had the good fortune to march in the annual Gaspee Days parade in Warwick,

Mr. President, after 7 long years of the Bush administration, our country's economy is in the worst condition it has been in decades. In my State of Rhode Island this week, a gallon of gas cost $4.11. Grocery bills are up. Utility bills are up. Affordable housing is scarce. Many homes are in foreclosure. Health care costs remain high. As a blistering hot summer approaches, there seems to be no end in sight. These are difficult times for many families. But for millions of Americans who are looking for a job today, the challenges seem almost insurmountable. Today, Senate Republicans showed yet again that they are more loyal to the failed economic policies of President Bush than to Americans who right now need our help. Majority Leader Reid and Senate Democrats pushed for quick passage of legislation to extend unemployment benefits. But Senate Republicans said no, even though last month the national unemployment rate saw its biggest 1- month increase in over 20 years, reaching a 4-year high of 5.5 percent.

In Rhode Island, things were a bit worse. Last month the unemployment rate in our ocean State exceeded 6 percent. That is one of the highest in the country. These men and women are being forced to deal with both the deep disappointment of losing their jobs and the challenge of trying to make ends meet for their families in an economy that is in recession.

One of these people is Brian Perry. Brian lives in East Providence, RI. He wrote me earlier this month to ask about the possibility of extending unemployment benefits. Brian had been a law clerk at a firm in downtown Providence, but he has been unemployed since January 11.

Since January 11, he has applied unsuccessfully for more than 65 jobs. One of those positions had more than 300 applicants. Brian is receiving unemployment insurance, but it is not enough. Because he couldn't afford to pay both his mortgage and his monthly COBRA payments, Brian has been without health insurance since the end of January.

In the United States of America, a working man trying to find a job without health insurance.

He says it has become more and more difficult just to afford groceries, and some nights he goes to bed hungry. He could go to a food pantry, of course, but he has not yet because he thinks there are too many people who are worse off than he is. Brian's unemployment benefits expire at the end of July.

People such as Brian need our help, and they need it now. What are we here for, if not to help our fellow Americans at times such as this? The Emergency Extended Unemployment Compensation Act would help. It would temporarily extend unemployment benefits

13 weeks beyond the ordinary 26-week eligibility period. In States such as Rhode Island, where people have been hardest hit, jobless workers would receive an additional 13 weeks of unemployment compensation. This critical measure was modeled after a bill introduced in January by Senator Ted Kennedy, a true champion of working Americans. It passed the House of Representatives last week with a strong bipartisan vote.

As my colleagues know, unemployment insurance is just that-- insurance. Millions of Americans go out pounding the pavement each and every day looking for work to support themselves and their families. They find work, they work hard, and they earn their paychecks. As part of an employee's compensation, employers pay into the unemployment insurance system so that workers will be covered if they lose their jobs through no fault of their own. Unemployment benefits help hard- working men and women in this terrible Bush economy cover bills and living expenses while they search for a new job. The Emergency Extended Unemployment Compensation Act could help over 3 million Americans pay the mortgage or the rent or feed their families, as they continue to navigate a perilous job market. In Rhode Island alone, there are more than 18,000 people in need of a job, and their benefits either already have or will soon run out.

I have heard the argument that people would not be motivated to find work if we extend this benefit; that they need this little spur to get off the couch and out into the workforce. In my experience, this is a ridiculous argument, a demeaning argument, one that is completely disengaged from the day-to-day experience of regular Rhode Islanders, from ordinary Americans, a true beltway special of an argument. This is a hard-working country, and it is in tough economic times. Good people are hurting. We should gather together around this legislation, support them as they try to get back into the workforce, and pass this piece of legislation.

I yield the floor and suggest the absence of a quorum.

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

Madam President, I ask unanimous consent that the Senate proceed to a period of morning business, with Senators permitted to speak therein for up to 10 minutes each.

Madam President, I ask unanimous consent the Commerce Committee be discharged from further consideration of H.R. 814, and the Senate proceed to its immediate consideration.

I ask unanimous consent that the bill be read a third time and passed, the motion to reconsider be laid upon the table, with no intervening action or debate, and any statements be printed in the Record.

Madam President, I ask unanimous consent the Commerce committee be discharged from further consideration of H.R. 3403 and the Senate proceed to its immediate consideration.

I ask unanimous consent that an Inouye-Stevens substitute amendment, which is at the desk, be agreed to, the bill as amended be read a third time and passed, the motions to reconsider be laid upon the table with no intervening action or debate, and any statements be printed in the Record.

I ask unanimous consent that the Senate proceed to the immediate consideration of H.R. 5778, which was received from the House.

I ask unanimous consent the bill be read three times, passed, and the motion to reconsider be laid upon the table, with no intervening action or debate, and any statements related to the bill be printed in the Record.

I ask unanimous consent that the Senate proceed to the immediate consideration of S. Res. 595 submitted earlier today by Senator Lincoln.

I ask unanimous consent the resolution be agreed to, the preamble be agreed to, the motions to reconsider be laid upon the table, with no intervening action or debate, and any statements related to the resolution be printed in the Record.

Madam President, I ask unanimous consent that the Judiciary Committee be discharged from further consideration of S. Con. Res. 84 and the Senate proceed to its immediate consideration.

I ask unanimous consent that the concurrent resolution be agreed to, the preamble be agreed to, the motions to reconsider be laid upon the table, with no intervening action or debate, and any statements related to the measure be printed in the Record.

Madam President, I ask unanimous consent that when the Senate completes its business today, it stand adjourned until 10 a.m., Tuesday, June 17; that following the

prayer and pledge, the Journal of proceedings be approved to date, the morning hour be deemed expired, the time for the two leaders be reserved for their use later in the day, the Senate proceed to a period of morning business for up to 1 hour, with Senators permitted to speak for up to 10 minutes each, with the time equally divided and controlled between the two leaders or their designees, with the Republicans controlling the first half and the majority controlling the second half; that following morning business, the Senate resume consideration of the motion to proceed to H.R. 6049, the Renewable Energy and Job Creation Act, and the time until 12:30 p.m. be equally divided between the two leaders or their designees. I further ask that the Senate recess from 12:30 until 2:15 p.m. to allow for the weekly caucus luncheons to meet.

Madam President, under a previous order, at 2:15 tomorrow, the Senate will proceed to a cloture vote on the motion to proceed to H.R. 6049, the Renewable Energy and Job Creation Act.

If there is no further business to come before the Senate, I ask unanimous consent that it stand adjourned under the previous order.