Kit Bond

Mr. BOND

Mr. BOND. Madam President, with the sufferance of the minority leader, I thank my colleagues, especially Senator Rockefeller, and all those who worked with us. We have had to make a number of very tough votes. We made some good changes in the bill. I thank, particularly, Senators Wyden, Feinstein, and Whitehouse for working with us to achieve their objectives in a way that would allow the program to continue. Approximately 10 months ago, the DNI, Admiral McConnell, came to Congress and asked that we update FISA. Changes in technology had resulted in the FISA Court rulings or interpretations that impeded the effective use of electronic surveillance against terrorists overseas. This problem came to a head in May 2007, when there was a FISA Court ruling causing significant gaps in our intelligence collection against foreign terrorists. Throughout the summer of 2007 and amid growing concern of increased threats to our security in light of these gaps, Congress was asked by the DNI to act. And Congress, in August, passed the Protect America Act, a short-term fix that did what it was supposed to do. It was lacking in one important aspect; it did not provide civil liability protection to those private partners who assisted the intelligence community. Following passage of the PAA, Chairman Rockefeller and I immediately set to work to come up with a bipartisan permanent solution. We worked closely with the intelligence community. In the end, after many hearings, briefings, debate, and visits to the facility, we did pass it on a 13-to-2 vote. We concluded that those electronic communication service providers that assisted with the President's TSP acted in good faith and deserve civil liability protection from frivolous lawsuits. As indicated by the chairman, this bill goes further than any legislation in history in protecting the privacy of U.S. persons, mostly Americans, whose communications may be acquired incidentally to this foreign targeting. For the first time in history, it requires the FISA Court to approve targeting of U.S. persons, American citizens, overseas to obtain foreign intelligence information. This bill was a series of delicate compromises. Both sides had to give. Many of us would have preferred to have all litigation related to the TSP terminated as the DNI originally requested. Again, we agreed, for reasons set forth on the floor, that cases against Government officials--and all criminal cases--could go forward. Others believed the FISA Court should not approve targeting of Americans abroad, particularly when these same protections are not afforded in ordinary criminal cases. In the spirit of compromise, we created a process that allows sufficient flexibility while addressing privacy concerns. In the end, I am proud to say we have accomplished our collective goals of making sure we have a bill with clear authorities for foreign targeting, with strong protections for Americans, and with civil liability protection for those providers who may have assisted with the President's terrorist surveillance program. We have heard debate over the past several weeks on a number of amendments that I believe would have proved harmful to our intelligence collection efforts. Some would have shut down, or severely impeded, intelligence collection against foreign terrorists. That is one of the reasons we worked so closely with the intelligence community to ascertain what could be done to increase protections without harming their ability to collect. We now have a solid bill. The DNI will support it and the President can sign it into law. I urge my colleagues to send this bill to the House with a strong bipartisan vote. It gives our intelligence operators and law enforcement officials the tools they need to conduct surveillance of foreign terrorists in foreign countries who are planning to conduct attacks against the U.S., our troops, and our allies. It is a balance we need to protect our civil liberties, without handcuffing our intelligence professionals. I hope we can do the right thing and pass the bill. I thank all our colleagues who helped. I yield the floor.

Mr. BOND. I ask for the yeas and nays.

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

Mr. BOND. Madam President, is there time remaining on this side prior to the vote?

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

Mr. BOND. Madam President, again I rise to thank Chairman Rockefeller, the members of the committee on both sides, and our very able staffs for a lot of hard work, particularly by members of the committee but by many Members who are not on the committee, who took their time to learn what the electronic surveillance capabilities are, to learn what guidelines and protections there are to protect the privacy rights and constitutional rights of American citizens and help us pass this bill. This is a bill which I hope we will at least, in large part, find the House agreeable to and that we can send it to the President. This has been a very long procedure. The chairman just pointed out that we have been working on this almost a year. We worked very hard after the August recess to come up with a good bill. I know we had some very warmly felt and vigorously argued amendments, but the fact that these would make it difficult for the intelligence community to collect the intelligence necessary to protect our interests, our allies, our troops abroad, and us here at home led a significant bipartisan majority to improve it. Again, my sincere thanks to the leadership on both sides for allowing us to get to this important measure. We hope we will have a conference report, if necessary, or a measure from the House that we can pass before the end of the week. So, Madam President, my sincere thanks to Members on both sides and particularly our great staffs on both sides. I thank the Chair, and I yield the floor.

Mr. BOND

Mr. BOND. Mr. President, first of all, we thank all our colleagues for coming to this point where we can have votes and finally get this bill out, which we started in December. It is a very important bill. We have worked together on a bipartisan basis and resolved almost all issues. The amendment offered by our colleague from Rhode Island has been modified in a way that I believe improves it, makes it effective, makes it work for the intelligence community, and achieves the very important goals that the Senator from Rhode Island has sought to achieve. I ask that I be added as a cosponsor to this modified amendment. I believe, Mr. President, we can accept it by voice vote.

Mr. BOND. I move to lay that motion on the table. The motion to lay on the table was agreed to. Amendment No. 3910

Mr. BOND. Mr. President, the bill before us, S. 2248, already has an exclusive means provision that simply restates the congressional intent back in 1978 when FISA was enacted to place the President at his lowest ebb of authority under the Constitution, which gives him power over foreign intelligence. Unfortunately, this amendment is a significant change of the bipartisan provision in the Intelligence Committee bill, and therefore I would urge my colleagues to oppose it. During the next attack on our country or in the face of an imminent threat, Congress may not be in a position to legislate an authorization. Yet the bottom line is, we just don't know what tomorrow will bring. This provision would raise unnecessary legal concerns that might impede the effective action of our intelligence community to protect this country. Further, because this amendment does not address warrantless surveillance in times of war and national emergency following an attack on our country, it does not provide enough flexibility for intelligence collectors. I am concerned this will cause operational problems. Mr. President, I urge the defeat of this amendment.

Mr. BOND. Mr. President, I would note that the Intelligence Committee debated this and accepted a return to the original FISA exclusive means provision, which I think we should maintain, and I urge opposition. S. 2248 already has an exclusive means provision that is identical to the first part of this amendment. That provision simply restates Congress's intent back in 1978 when FISA was enacted to place the President at his lowest ebb of authority in conducting warrantless foreign intelligence surveillance. The current exclusive mean provision in S. 2248 was acceptable to all sides because it maintains the status quo with respect to the dispute over the President's constitutional authority to authorize warrantless surveillance. Unfortunately, this amendment is a significant expansion of the bipartisan provision in the Intelligence Committee's bill. It goes further by stating that only an express statutory authorization for electronic surveillance, other than FISA or the criminal wiretap statutes, shall constitute additional exclusive means. This attempts to prohibit the President's exercise of his judicially recognized artic1e II authority to issue warrantless electronic surveillance directives. It also would require that future authorizations for the use of military force, AUMFs, expressly state that they authorize the use of additional electronic surveillance. I am concerned that this amendment would tie the President's hands following a national emergency or imminent threat of attack on our country--and prevent actions or intelligence collection that may be necessary for our safety and survival. While FISA currently has provisions that allow the President to conduct electronic surveillance, physical searches, or install pen register/trap and trace devices for 15 days following a declaration of war, these authorities are simply insufficient against the current terrorist threats our country faces. Let's think this through for a minute. During the next attack on our country, or in the face of an imminent threat, the Congress may not be in a position to legislate an express authorization of additional means. We may not be in a position to formally declare war against an unknown enemy. What if there is intelligence information about an imminent threat of attack, but Congress is in a lengthy recess, over a holiday? What if there are simultaneous terrorist attacks across the country, impeding air travel so that Members cannot return to Washington, DC? The bottom line is, we just don't know what tomorrow will bring. Yet this provision would raise unnecessary legal concerns that might impede effective action by the executive branch to protect this country. I have the utmost respect for Senator Feinstein. She has played a key role in this FISA modernization process. While our views on the President's constitutional authority may differ, she did convince me that a bipartisan FISA bill should restate the exclusive means concept in the originally enacted FISA statute. And over the past several weeks, Senator Feinstein and I tried to come up with a further compromise, one that would expand this simple restatement but would also allow the President to act in the event of a national emergency, or following an AUMF or declaration of war. Unfortunately, we could not reach an agreement. I believe that if we are going to declare that the President should follow the current FISA framework, then we need to make sure that that framework is flexible enough to address the grave threats of terrorism that threaten our country--and that means giving the President the ability to conduct warrantless electronic surveillance, physical searches, or installing pen register/trap and trace devices, for a reasonable period of time. This amendment does not provide this flexibility. I have other concerns with this amendment. It would make members of the intelligence community who conduct electronic surveillance at the direction of the President subject to the FISA criminal penalty provisions of a $10,000 fine and imprisonment for not more than 5 years. Also, it is likely these criminal penalties would apply to any service provider who assisted the government in conducting such electronic surveillance. I don't care what the skeptics and critics have said about the President's Terrorist Surveillance Program; the Constitution trumps the FISA statute. If a government employee--or a provider--acts under the color of the President's lawful exercise of his constitutional authority, that employee should not be subject to criminal penalty. In my opinion, the current restatement of exclusive means is fair and keeps the playing field level. Ultimately, the Supreme Court will decide whether Congress has the authority to limit the President's authority to intercept enemy communications. Until then, it is my hope that we don't try to tilt the balance in a way that we may someday come to regret. I urge my colleagues to vote against this exclusive means amendment.

Mr. BOND. Mr. President, the purpose of this bill is to make sure we are able to get information when we target a foreign terrorist overseas. This applies a different standard to someone in the United States who may be picked up on one of those calls than we apply within our own country. If the FBI gets a warrant to listen in on a drug dealer and that drug dealer has lots of conversations, if the drug dealer is talking about a criminal operation, then the FBI acts on it. If it is innocent, the FBI, the interceptors minimize or suppress that evidence, they do not sequester it, they do not have to go through the hoops that are required for a recipient of a telephone call from a foreign terrorist overseas. There is no reason why, when we have no challenges and no question that minimization is adequate to protect innocent Americans, that they need a higher level of protection when they are talking to a foreign terrorist than when they are talking to a U.S. drug dealer. I urge the defeat of this amendment.

Mr. BOND. Mr. President, this carrier liability provision is an essential part of this bill. If we permit lawsuits to go ahead against carriers alleged to have participated in the program, there will be more disclosures in discoveries and pleadings of the means of collecting information, disclosing our most vital methods of collecting information. Secondly, if we permit the carriers that may or may not have participated to be sued in court, then the most important partners the Government has--the private sector--will be discouraged from assisting us in the future. The Intelligence Committee--the one committee that has looked at this--reviewed it and said these companies acted in good faith and, therefore, we should give them retroactive immunity. I yield the remainder of my time to the distinguished chairman.

Mr. BOND. I move to reconsider the vote.

Mr. BOND. Mr. President, with the distinguished chairman of the committee, we offer this amendment responding to a request made by the Director of National Intelligence when he sent up his recommendations to us last April. He and the Attorney General strongly support this amendment because it adds proliferators of weapons of mass destruction to the definition in FISA of agent of a foreign power, foreign intelligence information, use of information, and physical searches. This amendment applies only to non-U.S. persons. Making these definitional changes will allow the Government to target for surveillance those who seek to spread this dangerous technology and will enable the intelligence community to share information with other agencies. It remains a central concern for our national security, whether done by terrorists, criminals or other nations. I believe we can accept this amendment on a voice vote. I turn to my distinguished chairman for his comments.

Mr. BOND. I move to reconsider the vote.

Mr. BOND. Mr. President, I move to reconsider the vote.

Mr. BOND. Mr. President, the FISA Court was not set up to make judgments about the operation of foreign intelligence. As a matter of fact, they said specifically, in a case released in December, that is a matter for the executive branch. Now, there are some people who say there ought to be a court challenge to the President's terrorist surveillance program. Let me remind my colleagues that there are seven cases proceeding against the Government and Government employees which will not be impacted by this bill. Every day that litigation continues, whether it be in a FISA court or in open court, there is a danger of leaking of information. There could be disclosure of our methods, and there could be risks to employees of the companies in areas of the world. Certainly their bottom line could be impacted. As Senator Durbin pointed out last week, leaks of classified information caused severe harm to a company in his State. I urge the defeat of this amendment.

Mr. BOND

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

Mr. BOND. Mr. President, we are back on the floor beginning the third week of debate on the very important Foreign Intelligence Surveillance Act, also known as FISA. We have had a great deal of good debate. We have had a few votes. Thanks to our leadership--Senator Reid and Senator McConnell--we now have a plan to conclude debate and go to the critically important votes on Tuesday. I thank all Members for participating. I know there are some who have comments they wish to make today and Monday. Chairman Rockefeller and I have spent 2\1/2\ weeks so far on the floor, and we understand the importance of moving quickly to get this measure adopted--gain approval from the House on a measure we can send to the President for his signature. I truly hope we can make that. I express my thanks to Chairman Rockefeller, his assistant Melvin Dubee, all members of the committee, Louis Tucker of my staff, and others for bringing us to this position. It is important to realize the magnitude of the danger we continue to face from radical Islamic terrorists. Probably no place was it better outlined than in testimony in open hearing by the leaders of the intelligence community. Director McConnell, head of the intelligence community, outlined the major areas of concern, backed up by CIA Director Michael Hayden; Defense Intelligence Agency Director General Maples; FBI Director Mueller, and Under Secretary of State Randy Fort for the INR. A couple things that came out may have been missed by Members who were not fortunate enough to hear the testimony of Admiral McConnell and the intelligence community. I thought I would repeat a few of them for you. First, Admiral McConnell made it clear that even though our intelligence analysts had the availability of collection, which indicated there had been a halt in 2003 to the weaponization program for nuclear weapons in Iran, the threat that Iran poses remains great. Admiral McConnell pointed out that there is no question Iran continues to try to enrich uranium, which can be used for nuclear weapon production. He also indicated they have the skills and the facilities to turn out biological and chemical weapons, and they are working on a missile program. The halt in 2003 came, not surprisingly, after the United States went in and opposed the dangerous dictator, Saddam Hussein. It was the capture of Saddam Hussein that led Muammar Qadhafi, leader of Libya, to decide he didn't want to be pulled out of a spider hole by American forces. He gave up his nuclear weaponization program. Personally, I think it is no accident that the same activity in Iraq convinced Iran that, for the time being, it was better to shut down their weaponization program. The top French Defense Minister indicated he was not sure they had not restarted their weaponization program. In any event, we need to continue to be concerned about Iran and its potential threat not just to our allies in the Middle East, particularly Israel, which Iran's elected leader, Ahmadi Nejad, vowed to annihilate. Specifically, regarding threats to the United States, General Hayden outlined for us in open hearing--and more specifically in classified information--the number of threats that have been avoided, the plots that have been deterred by our resolute action. And what helped us deter the threats was, first, the active, aggressive move by the U.S. military to disrupt the Taliban and take Afghanistan out from under the control of the Taliban. Afghanistan was a great threat and much planning was going on by al- Qaida there. There are some on the news who continue to say Iraq had nothing to do with the war on terror. For those others who have looked at the information, that is an unbelievably naive point of view. David Kay, who went into Iraq to conduct a survey of our inadequate intelligence information, said that Iraq was a far more dangerous place even than we knew. Terrorists were running wild there, Abu Mus'ab al- Zarqawi, head of Ansar al Islam was active there, and later became the AQI, leader of al-Qaida there. Al-Zarqawi became famous when he beheaded victims who didn't agree with him; he cut their heads off on television. Iraq has been designated time and time again by leaders of al-Qaida, Osama bin Laden and Ayman al-Zawahiri, as the target for their headquarters. They want to establish the land between the rivers--the Tigris and Euphrates--as their caliphate. They stated that is their objective. Were we to leave Iraq precipitously, not only would it lead to chaos, genocide, and possible Mideast sectarian wars, but also it would ensure that al-Qaida would have the opportunity to reestablish their headquarters with recruitment, training, and command and control that would significantly increase the threats to the United States. This is why it is essential to continue our military support in the war against terror and also provide the intelligence tools to the intelligence community needed to keep our country safe. I thought it might be helpful to repeat a few comments that were made at that hearing. Director McConnell, along with FBI Director Mueller, outlined terrorist threats here at home--most recently, in New Jersey, Illinois, and abroad in Spain, Denmark, France, Germany, and the United Kingdom. Admiral McConnell also said: Al-Qaida remains the preeminent terror threat against the United States, both at home and abroad. Despite our successes over the years, the group has retained or regenerated key elements of its capability, including its top leadership, operation lieutenants, and de facto safe haven . . . in the Pakistani border area with Afghanistan known as the Federally Administered Tribal Areas or FATA. To expand on that further, I will explain that people who think we are not doing enough to capture Osama bin Laden and al-Zawihiri, I cannot tell you how it is happening, but it is happening in collaboration with our allies. But we have regularly captured or killed the operational head of al-Qaida, the No. 3 man. Most recently, Abu Laith al-Libby, the operational head, was killed in some kind of bomb or missile strike. At the time, of course, he had a U.S. citizen with him, apparently, Adam Gadahn, who had been cooperating actively with the al-Qaida leadership. Now, it is a fact that Gadahn was a top terrorist target. But do you know something. Without having a FISA Court order, we were able to go in and kill him--inadvertently, of course, but we would not have been, without the FISA law--particularly as we have updated it--able to listen in on his conversations. That is the one great shortcoming we learned in Iraq when we met with the head of our Joint Special Operations Command, GEN Stan McCrystal. He said the greatest threat to our troops on the battlefield was not being able to listen in on their electronic communications and see what directions they were giving to the terrorist groups threatening our troops in Iraq. That is why the outmoded, old FISA law we changed with the Protect America Act had to be revised. In addition to the terrorist threat, there is no question that rogue nations around the world continue to seek dangerous weapons that threaten America's security. Admiral McConnell also said: The ongoing efforts of nation-states and terrorists to develop and acquire dangerous weapons, and the ability to deliver those weapons, constitute the second major threat to our safety. After conducting missile tests and its first nuclear detonation in 2006, North Korea returned to the negotiating table last year. We see that North Korea has signed on to the six-party agreement, supposedly getting themselves out of the nuclear business, but some of us have grave doubts whether he will follow through. We need good information on not only the intentions of terrorist groups, such as al-Qaida, but potentially on nations with nuclear weapons that have developed missiles and the ability and the potential of delivering by missiles the nuclear weapons against U.S. targets. I close on the discussion of the threats by quoting from General Hayden, the Director of CIA, who said: We face an enemy that is clearly ruthless, but it's also one that's very adaptive, one who shuns traditional hierarchical structures, who learns from mistakes and therefore demands that we be no less resilient and creative. Suffice it to say that all of the members of the Intelligence Committee said we must have the FISA bill Senator Rockefeller and I negotiated and passed out of the Senate Intelligence Committee 13 to 2 on a strong bipartisan vote. That is what we are here to pass, I hope, this coming week and send to the President by the end of the week. Admiral McConnell said: The authorities granted by the amendments to FISA, the Protect America Act, which temporarily closed some gaps in our ability to conduct foreign intelligence, are critical to our intelligence efforts to protect the nation from current threats. Briefly, some of those important benefits in the bill that was signed last August include: better understanding of international al Qaeda networks, more extensive knowledge of individual networks, including personnel and planning for suicide bombers; and most importantly, greater insight into terrorist planning that has allowed us to disrupt attacks that intended to target U.S. interests. He also put in a very strong pitch for the Rockefeller-Bond bipartisan bill to extend the FISA through the FISA Amendments Act of 2008. He thanked us and all the members of the committee for the leadership and hard work, and he said: . . . and I would emphasize ``over many months''--in drafting and passing draft legislation that governs and enables this community. Your bill--draft bill provides the needed updates to the Foreign Intelligence Surveillance Act. He also went on to warn against dismantling that bill. He said: Over the past several weeks, proposals to modify your draft bill have been discussed. At the request of members, the attorney general and I have submitted a detail letter that addresses each of those issues, and it will be delivered to you this morning. I would ask members to consider the impacts of such proposals on our ability to warn of threats to the homeland security and on our interests abroad. We have received that letter. We have quoted from that letter and will continue to quote from that letter on amendments which have been proposed that the intelligence community believes would hamstring their efforts. As a sidenote, we were able, working on a bipartisan basis, to provide significant new protections for Americans at home and Americans abroad who might be engaged in terrorist activities and are working for foreign powers as agents or officers or employees. These threats from American citizens are sometimes as deadly, as dangerous as threats from terrorists abroad. We need to be able to listen in on them. Finally, speaking about the civil liability protection for carriers which we included, he said: Well, I would say, in protecting the homeland it's absolutely essential. In this--it's absolutely essential that we have the support, willing support of communications carriers. In this day and age, our ability to gain intelligence on the plans, the plots of those who wish to attack us is dependent upon us obtaining information relating to cell phones, the Internet, e-mail, wire transfers, all of these areas. My concern is that if we do not have this immunity, we will not have that willing support of the communications carriers. That quote was from Robert Mueller, Director of the Federal Bureau of Investigation, at a hearing. General Hayden went on to say: These are very fragile relationships. We lost industrial cooperation, at CIA, with partners on the mere revelation of the SWIFT program in public discourse. Not because they were doing anything related to the program whatsoever but just the fear that the vulnerability they would have to their smooth functioning of their business had caused people, who are otherwise patriotic and committed, to back away from their totally lawful cooperation with our agency. One other point. When there is talk about substituting the United States as a party in litigation brought against carriers alleged to have participated, we ought to take into account some very compelling comments made yesterday by the distinguished deputy majority leader, Senator Durbin of Illinois. He pointed out that the release of a supposedly confidential letter from the Department of Justice to the Treasury about the operation of one of the major exchanges in Chicago had caused a $6 billion drop in the market value of that exchange. That means that people holding stock, many of them through pension funds or individual accounts, lost a large share of money. As I pointed out yesterday, having the substitution of the Government for carriers, while it may remove them from the possibility of financial liability in a lawsuit, does not prevent significant damage to their business relationships here and abroad. The hit on any carriers sued under a substitution agreement, even though it is supposed to be reviewed in classified session by the CIA--everybody around here knows that if carriers are brought before the FISA Court, somebody will be talking about it, it will become news. They will suffer great harm to their business interests and potentially expose their employees and facilities here and abroad to violent attacks by terrorists or other radicals who wish to do them harm. As a result, those carriers that have cooperated in the past or considered cooperating in the past are going to be advised by their general counsels that they cannot do so willingly because they would be subjecting their employees and their shareholders to great loss. I think this is unacceptable. This is why I believe we have a good FISA Amendments Act before us, and we need to pass it. We look forward to the debates today and Monday and voting on the amendments and, I hope, passing the bill on Tuesday so the House will have an opportunity to act. It is critical to the defense not only of our interests abroad but for the protection of American citizens at home that, with the protections we have added in the bill that came out of the Senate Intelligence Committee, we also have the ability of the intelligence community to collect vitally needed intelligence information. We have learned that tremendously valuable information has been collected by high-valued detainees, less than 100 of them that the CIA has captured. Less than a third of that 100 have been subjected to enhanced interrogation techniques. Three of them, as General Hayden outlined, were weatherboarded, and they provided in a cooperative spirit the most important information. Beyond that, electronic surveillance is the best weapon we have to defend ourselves, to defend major population centers, tourist attractions, sporting events, and outdoor events from a terrorist attack. I hope all Members will keep that in mind as they consider the amendments which will be brought before this body on Tuesday for a final vote. Mr. President, I yield the floor, and I suggest the absence of a quorum.

Mr. BOND

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

Mr. BOND. Mr. President, I understand that the bill is to be called back up, the FISA bill; is that correct?

Mr. BOND. If the proponent of the amendment is ready, I would suggest that we begin the final lap on these amendments.

Mr. BOND

Mr. BOND. Mr. President, we have made our point that it makes no sense to exclude the use of information simply because there is a deficiency, any deficiency in the certification and procedures used to target foreign terrorists overseas. I ask for the yeas and nays.

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

Mr. BOND. Mr. President, I call up amendment No. 3941, as modified, the Rockefeller-Bond amendment.