Kit Bond

Mr. BOND

Mr. BOND. Mr. President, I thank my good friend from Connecticut for the kind words. We are delighted to have him back, although some would wish that he were otherwise occupied tonight. But we welcome him back and welcome him to the debate. I express my appreciation for the kind words he said about me in Iowa. It didn't do much good in Iowa, but I always appreciate them. On this debate, however, I respectfully say that my good friend, with whom I have worked on many measures and intend to work with on many more, is dead wrong. He is correct that the FISA law was passed in 1978, but the problem is it has been superseded by technological changes. The technology of transmission of signals changed significantly. He probably was not here when I mentioned it earlier, but when the terrorists struck on 9/11, there was a question of how we could prevent further attacks that were planned and some of them were under way. The appropriate intelligence community officials recommended electronic surveillance and noted that since the laws had not changed, but technology had changed, it was quite likely that FISA, as it existed from 1978, even with minor tweaks, would not accommodate the collection that was needed. The intelligence community leaders and the administration leaders addressed this with the Gang of 8, the leaders of both parties, both Houses, and both sides of leadership on the Intelligence Committees, and they concluded that there was not time to change the law, so the President went ahead, using his article II powers as enhanced by the authorization for the use of military force. The President issued orders and, for the most part, the Attorney General signed off on it when he was available. The Director of National Intelligence issued them, and companies, understanding the urgency of providing collection against foreign terrorists--this was directed against foreign terrorists calling into the United States-- complied. Now, the fact that one or two may not have complied speaks no praise for those companies, because if they failed to comply with what I have reviewed and believe to be valid orders of the Federal Government, and as a result, communications that might have tipped off an imminent attack on the United States of America were missed, then it would be a great shame for those companies. Now, I cannot speak for the other body. I do say that the Judiciary Committee, which has broad jurisdiction over many important things--and I respect the leadership of that Committee--doesn't spend the time that we in the Intelligence Committee do on intelligence matters--going out to NSA, having people come before us, being briefed, going through laboriously technical operations that allow these searches and surveillance, and going through and listening and observing the means of assuring that these functions are carried out in compliance not only with constitutional directions but the regulations and the statutes of the United States is very important. We have seen the oversight. There is the supervisor and the inspector general who act as an independent check; the Department of Justice lawyers who come and review it from their standpoint; but also the Intelligence Committees in both Houses, which have not only the right but the responsibility to oversee this. Based on that, our committee determined and reported out a measure saying it was absolutely essential for the continued security of this country to eliminate lawsuits that had been filed against a number of carriers alleging that they may have participated in this activity. Now, why is that a problem? Well, today, we had open hearings involving the DNI, the Director of the FBI, the Director of the CIA, the Director of the Defense Intelligence Agency, and the Deputy Secretary of State for the INR Division. We asked all of them why it was essential that they provide retroactive liability protection. The first and most important concern raised was that allowing these lawsuits to continue against the company--my colleague from Connecticut is right. We permit cases to go forward against the Government or Government officials. We are just protecting private companies. It is the pleadings, the discovery, and the testimony that would inevitably tell us, and the terrorists, much more about the operations of the program than the terrorists ought to know. In May of 2006, after the disclosures of this terrorist surveillance, GEN Mike Hayden came before our committee for confirmation. I asked him: What impact has the disclosure of our terrorist surveillance program had on the collection of intelligence from foreign terrorists and suspected terrorists? He smiled and said, ruefully: We are applying the Darwinian theory to terrorists. We are only collecting the dumb ones. I can assure you the people we want to listen in to are the very clever, very witty, very diabolical, murderous heads of al-Qaida and other terrorist organizations who want to do great bodily harm to the United States. They think, what we can do to tell them more about it, which would tell them how to evade even the means of collection that we have left available, that would leave our intelligence community deaf and blind to threats not only to this country, which is most important to all of us but to our allies and our troops overseas. All the heads of the intelligence agencies I mentioned said one of the most important things we can do is provide this retroactive liability protection because, without it, then the private carriers-- the telecom companies--will no longer participate voluntarily to requests from Government entities. We have many areas where the telecommunications companies work with the Federal Government--whether it is tracking a missing child, tracking down a sex offender or, on another level, breaking up a drug cartel or, on another level, protecting against cyber attacks from other countries. If litigation is allowed to proceed against these companies, not only will it likely describe in detail the means that our intelligence community uses to collect information, it will put the companies in such dire straits in terms of business reputation here and abroad that it will be a very serious blow to the shareholders, to the pension funds that own the companies, and it will lead the counsel for those companies to say: never participate with the Federal Government again. This could be a disaster for effective collection. I believe it was the consensus of those present at our hearing today--the Director of the FBI, the Director of CIA, the general in charge of the Defense Intelligence Agency, Under Secretary in charge of INR, and Admiral McConnell, the DNI--that retroactive liability protection for any carriers that may have participated, as well as carriers that are getting sued that didn't participate, that cannot exercise the state secrets to protect them, it will ensure that we don't get protection, don't get the cooperation from these telecommunications carriers when we need it. We have worked hard on this measure. After reviewing all the information available to us, including opinions and authorizations that we reviewed in the executive office, the committee determined, on a strong bipartisan basis, that the providers acted in good faith pursuant to representations from the highest level of the Government, that the TSP was lawful. We worked hard to fashion a limited liability protection provision that serves the dual purpose of ending the litigation against the providers while allowing the cases against the Government to continue. Go ahead and attack the Government. There is no shortage of that in this body. I have heard it previously earlier today. That is part of our role on a partisan basis. We exchange criticism of the other party and particularly the administration when it is of the other party. We can make our best arguments. But we need to stop investigations, for example, by State public utility commissions of the providers' conduct under the TSP. These investigations involve very sensitive, classified information that no public service commission or public utility commission is competent to handle, maintaining the secrecy, the confidentiality we need of our collection methods. We know this program has inflicted no harm on our citizenry and has protected us from harm. I invite my colleagues, once again, to go to the fourth floor confidential classified hearing room or come to the Intelligence Committee's offices in Hart, if they want to see, from the Director of National Intelligence, a list of things that have been accomplished under the Protect America Act because collecting this electronic information is vitally important. It is right up there with interviewing detainees--high-value detainees--in providing us our most valuable information. To strike this provision of retroactive liability protection from the bill would significantly lessen our ability to collect intelligence and will make our country much less safe. I ask that my colleagues vote against it. I will shortly yield time to my colleague and the chairman of the committee. At this point, I ask unanimous consent that the pending amendment be temporarily set aside.

Mr. BOND. Mr. President, I call up amendments numbers 3938 and 3941 and ask unanimous consent that they both be modified with the changes at the desk.

Mr. BOND

Mr. BOND. Mr. President, I thank the Chair. I appreciate the opportunity to share a few views on the amendment. Again, on this measure, as on the others, I have a number of my colleagues who have indicated a desire to speak on it, so I am only going to take a very few minutes. But let's be clear: When this issue came before the Intelligence Committee, we worked on a bipartisan basis to compromise. I think we had, as I have said before, a very good compromise. Everybody gave. I did not want any sunset. I felt providing our intelligence community the ability to establish a good, strong, adequately protected but yet effective means of intercepting foreign intelligence communications was vitally important so the intelligence community would know they had this ability. Moreover, I have had the opportunity, in the last couple years, to meet with many of our allies abroad. Our allies depend upon our ability to intercept communications that lead to the disruption of terrorist attacks in other countries. Again, I ask my colleagues who want to know what the Protect America Act has done to review the classified communication that the Director of National Intelligence sent us saying how many times and where in foreign countries we were able to provide vital information through our collection of electronic signals to the governments that wanted to be able to prevent terrorist attacks and were significantly enabled to do so by means of our collection efforts. Probably the reason for keeping it a permanent law was best expressed by the Attorney General, Mike Mukasey. When he was asked about why we shouldn't have a sunset, he said: The enemies, the Islamist terrorists who want to do us harm, do not put a sunset on their fatwas, their orders to go out and kill Americans and kill our allies and kill our troops abroad. There is no immediate prospect of cessation of foreign terrorist activities or proliferation of weapons of mass destruction or even threats from countries that are absolutely hostile and dangerous to the United States. To put an artificial time limit on it makes no sense. I have a different view of what the Intelligence Committee should be doing. One of the things we see, as we have discussed some of these amendments, is that those of us on the Intelligence Committee have special access to all this information, but we have a heavy responsibility. We try to carry it out well. Every time we explain on the floor what our intelligence activities are concerning, even in an unclassified setting, the more we talk about it, the more our enemies-- those who would seek to do us harm--learn about our intelligence collection capabilities. Bringing this back to the floor will enable them, once again, to learn more about what we are doing and when we are doing it. Frankly, having a sunset that expires just before a new administration is sworn in after the 2012 elections seems to me not to make much sense. If there are changes needed in the Foreign Intelligence Surveillance Act amendments of 2008, it is our job on the Intelligence Committee to conduct continuing oversight. If there is a problem with that activity, if it is inadequate or if it is not properly regulated, then it is our job in our oversight hearings to bring that to the floor and bring that particular fix or that particular change that is needed to the floor immediately. We shouldn't wait 6 years or even 4 years. If we need to fix it, we need to find out what fixing is needed, and we need to take those steps at that time, not wait for 4 years or 6 years. All we do by setting an artificial time limit on it is to say to those who seek to do us harm: Well, if you go past the deadline, who knows? Maybe the Congress will not be able to adopt an extension. Maybe we will be able to communicate with our operatives in the United States and elsewhere without surveillance. It causes uncertainty in the intelligence community, and I believe it is not wise to cut back on the compromise we reached on a bipartisan basis in passing out the FISA amendments of 2008 by a 13-to-2 vote. So I urge my colleagues to vote against this amendment. I yield the floor, and I reserve the remainder of the time on this side.

Mr. BOND. Mr. President, I yield myself 5 minutes. I appreciate the concern of my colleagues on the other side of the aisle. But there are quite a few misconceptions and misinterpretations about the bill and about the impact this proposed amendment would have. Again, after the chairman speaks, there are a number of members of the committee who wish to come and speak more about it. The purpose of this bill is, and always has been, to enable the intelligence community to act to target foreign terrorists and spies overseas. To answer many of the contentions made, you cannot get a certification to begin the process, unless there are reasonable procedures to assure that the targeted persons reasonably are believed to be located outside the State. Two, the procedures are consistent with the requirements of the Fourth Amendment and do not permit intentional targeting of any person known to be located in the United States. In 2(a)(3), it says that a significant purpose of the acquisition is to obtain foreign intelligence information. Now, the statements that somebody who has gone abroad and is calling back home to their children would be surveilled is beyond the pale. No. 1, there is a clear prohibition in the bill against targeting any U.S. persons abroad without getting a FISA Court order saying there is reasonable cause to believe, one, they are acting as an agent or officer or employee of a foreign power; and, two, they have significant information. What this amendment does, however, is strike the ability to collect information on some foreign power that may be talking about proliferation of weapons of mass destruction. Furthermore, it would prevent collection on hostile states acting in a dangerous manner to the United States. Now, the amendment, as it is drafted, will have a totally unexpected impact. It is difficult to explain, in an unclassified session, why this amendment is unworkable. But it would say that if there is a person reasonably believed to be located in the United States, such communication shall be segregated, or specifically designated, and no person shall have access to such communication except in accordance with title I, which presumes that you have access to that information, to determine whether it qualifies under the exceptions to the prohibition. In effect, you would have a requirement that any kind of incidental communication from a person, from a foreign terrorist target, somebody having information of foreign intelligence value or a possible terrorist attack, who calls the United States or sends an e-mail, you would have to track down and find out where every e-mail recipient may be. You would have to identify people who might be collecting that information and investigate whether they are in the United States; and you would compile a significant amount of information on U.S. persons. The whole reason it operates with minimization is to say there are only certain communications which the intelligence community is lawfully permitted to acquire, and which it has any desire to acquire, because to acquire all the communications from all foreigners is an absolutely impossible task. I cannot describe in a public setting how they go about ascertaining which collections are important. But to say that if Osama bin Laden or his No. 3 man--whoever that is today, after the last No. 3 man in al- Qaida was wiped out--calls somebody in the United States, we cannot listen in to that communication, unless we have an independent means of verifying it has some impact or threats to our security or a terrorist threat. That is the most important communication we need to intercept. The Protect America Act has kept our country safe because if somebody calls in with information on a terrorist threat, then the FBI and local law enforcement officials can go to work on that threat immediately and get additional criminal authorities as needed. But that is the most vital kind of information to get. We certainly should not be required to be put in a lockbox, as this amendment would provide. Finally, talking about expansion of surveillance powers, when FISA was first adopted, most of the collection against foreign targets came by radio, whether coming into the United States or going foreign to foreign, and there was no limitation on it. There was no limitation on intercepting radio communications. What we have done in FISA is to impose significant new restrictions on the collection of information that might be of foreign intelligence value. We should change the definition of ``electronic surveillance,'' but we were not able to do so in this law so it would apply to collection against other forms of communications. Suffice it to say, this bill before us, the bipartisan bill, is carefully targeted, limited, covered with layers of protection and oversight to assure minimization, as I previously suggested. Whether you believe the inspector general of NSA, the inspector general of the DNI, the Department of Justice will perform adequate oversight or not, you can be sure the Intelligence Committee will do so. I yield the floor and reserve the remainder of our time.

Mr. BOND. Mr. President, I thank my colleagues for agreeing on a way forward on this bill. This is a very important bill, the Foreign Intelligence Surveillance Act, the FISA Act, of 2008. It gives the intelligence community the tools it needs right now and over the next 6 years to protect the country. The Protect America Act we passed in Congress and the President signed last August allowed the intelligence community to close critical intelligence gaps, but that legislation expires in less than 2 weeks. We cannot let those gaps reopen. We passed a short-term extension, and that extension will expire when we are preparing to go out on the President's Day recess. We cannot leave our country blind and deaf to threats that terrorists might bring. We were delayed in December by filibuster, which is the right of all Senators to have extended discussions. And there are those who say we need more time to look at this measure because it is very important and it is very technical and it is controversial. But the Intelligence Committee spent over 9 months looking at FISA modernization. We held hearings, we reviewed the Terrorist Surveillance Program, we looked at the implementation of the Protect America Act, and after that, we came up with a solid bipartisan bill. That is something in which Chairman Rockefeller and I take a great deal of pride because we accommodated many changes and improvements and we did improve on the existing FISA structure, as well as adding items the Protect America Act needed to have but did not have. The intelligence community is waiting for us to act. We have a bill that is responsible and effective. It addresses the concerns about the Protect America Act, but most of all, it gives the intelligence operators the tools they need and ensures that our private partners will continue to assist the Government. As I said, this bill came out of the Intelligence Committee on a 13- to-2 vote after months of studying the collection programs. Chairman Rockefeller, whom I thank again, and I worked together to get an agreement that protects America's constitutional rights and the privacy rights of American citizens. There was a lot of work with the intelligence community representatives and lawyers from the Department of Justice. The Intelligence Committee members and their staffs did an outstanding job coming up with a solution. Two provisions added during the initial markup without input from the intelligence community needed to be changed. They are great objectives, but they had to be made workable. It was our pleasure to work with Chairman Rockefeller, Senator Whitehouse, and Senator Wyden to come up with a solution to both these problems, and they are now in the substitute now pending. The Director of National Intelligence, who is responsible for running our collection programs, said with these two problems fixed, he will support the bill. This is very important to the chairman and to me because we want to pass a bill that works and will become law. It would do no good to pass a bill that has people's good ideas in it or pass a bill that is good for politics but doesn't work for those who are charged with protecting us from the threats our country faces. So the support of this bill by the Director of National Intelligence in particular is critical. With these fixes, we will have a bill the President will sign. The chairman and I have worked shoulder to shoulder on a bipartisan basis to pass this bill. We will have to take a very careful look at any amendments that are proposed because we don't want to jeopardize the ability of the intelligence community and their private partners to go forward. It is very technical. Each word matters. And we will do our best to point out whether amendments will work. There are several amendments pending that we think will improve the bill but will not bring a veto. With that, Mr. President, I thank all the Members who have worked with us in close collaboration to get time agreements, to get a list of acceptable amendments, and I am looking forward to moving ahead with this bill just as soon as we can. I thank my colleague from West Virginia and the other colleagues for working together on the Intelligence Committee bill. I yield the floor.

Mr. BOND. Mr. President, all I know is we were all expected to be back at 5:30. I do not have their flight schedules. We are contacting their offices, but I do not know when they will be back. Let me move on now to address some of the things that have been said. No. 1, there was a comment about the damage done by the Protect America Act. Nobody has shown any damage done by the Protect America Act. What it has done is given our intelligence community the ability to intercept foreign terrorist electronic communications. It has kept the world and our allies and our own people safer. If anybody wants to look at that, there are, in our enclosed intelligence rooms, the full description of what has been gained. The amendment before us, allowing the FISA Court to assess compliance, may sound like a good idea. But when we talk about foreign targeting, we are outside the FISA Court's experience and their expertise. The FISA Court was created in 1978 to issue orders for domestic surveillance on particular targets. But Congress specifically left foreign surveillance activities to the executive branch and to the intelligence community. This is the first time we have heard that a court, set up to oversee domestic applications for electronic surveillance, should be involved in the foreign targeting efforts dealing with foreign information. FISA minimization procedures are about protecting the identities of U.S. persons. This comes up all the time in domestic surveillance. But almost all the collection under these foreign targeting acquisitions will be on non-U.S. persons who require no protection under FISA minimization procedures. I will explain later if I have time, after others have spoken, what the FISA Court itself has said about it. Therefore, it does not make sense to try to get the FISA Court involved in assessing compliance in the foreign targeting arena. Now, it has been said that a judge, one of the district court judges who is brought in to rule on applications, probable cause applications for domestic surveillance, should go out and review what goes on at the facilities where collections are being made. Now in France, they have a wonderful procedure that goes far beyond anything we have and would drive many of our civil libertarians nuts. The investigating magistrate investigates, he prosecutes and he rules on cases. That is a wonderful way of overseeing the whole line of action. As an investigator and prosecutor, he makes a judgment. We do not have that situation. We do not have that same system. We have courts that rule on controversies. We have given them the power to review the minimization procedures, the written procedures but not to go out and spend the day trying to figure out what is going on where the collections are being held. What we do have is a very robust system of oversight, contrary to what my colleague from New York said. I will have to agree with him: I agree with all the things he said about the New York Giants. I rooted for them. I thought they were great. I will have to confer with my colleagues from New Hampshire and Maine to see whether they would accept on our side the terrible things he said about the New England Patriots. But I was a born-again Giants fan yesterday. But when he said there is no oversight, he overlooks the supervisors, the inspector general who is overseeing minimization, the Department of Justice lawyers who are on top of them, and, more importantly, the Intelligence Committee itself. That is our job. Our job is to oversee it, and we intend to continue to oversee it to make sure that system works. Our staff can go out there. Our members can go out there. I suggest, given the background the distinguished Senator from Rhode Island has in seeking warrants, and overseas warrants, probably nobody in this body will be better able to oversee compliance than the distinguished Senator from Rhode Island, who served as a prosecutor and as attorney general. I assure you not one of the FISA Court judges would have nearly as good a background or as fruitful a time as my colleague from Rhode Island would have. I believe, therefore, leaving the existing oversight policies in place, with a robust oversight by the Intelligence Committee itself-- those of us who have been entrusted to assure the intelligence collection goes forward in an appropriate manner--should be allowed to do so. Mr. President, I yield the floor and I reserve the remainder of my time under the proposal I made previously.

Mr. BOND. Mr. President, I yield myself 5 minutes. I ask that the balance of the time on this side be reserved for Senators Hatch and Sessions and others who want to speak.

Mr. BOND. Madam President, I rise in opposition to another amendment that has been argued very strongly on the other side but which would impose additional operational burdens and limit the ability of our collective agencies in the intelligence community to get the information they need and to be able to use it to keep our country safe. We have gone through all of these, and we have worked to develop much greater protections for American citizens. One of the protections the American citizens seek from us is the protection from foreign attack and terrorist attack. If we hamstring our intelligence community--as they were hamstrung under the new techniques under the old FISA law-- you will find out we cannot collect the information we need. This burden--this superexclusionary rule--goes far beyond what is necessary to protect American citizens. While supporters of the amendment may argue that a similar rule appears elsewhere in FISA, it is important to remember that rule is limited to individual domestic surveillance and searches, where the court has found there is no probable cause to target that person. That is very different and is a very important protection for Americans from searches and seizures and surveillance without a court order--not a properly developed court order. This amendment tries to apply that same rule to foreign targeting, when there may be a deficiency identified in the targeting or minimization procedures. Applying an exclusionary rule in the context of a domestic surveillance involving a small number of targets is manageable and it must be done to protect Americans. It makes no sense if there is no finding of probable cause. That is the threshold under which that rule applies. But it makes no sense to exclude the use of information simply because there is a deficiency--any deficiency--in the certification or procedures used to target foreign terrorists overseas. That is whom we are talking about; that is the overwhelming amount of the collection--against foreign targets, foreign terrorists, and others with weapons of mass destruction plans or proliferation or foreign powers. It makes no sense to say a deficiency, which can be corrected, should require all the information collected to be suppressed. For example, this automatic suppression rule would make the Government temporarily sequester significant amounts of data, potentially, that might contain vital foreign intelligence information--obviously, there is a qualification--but not amount to information that indicates a threat of death or serious bodily injury during a period of time when the Government is attempting to correct a relatively minor or inadvertent deficiency. That is unreasonable, and it is one more administrative burden to place on the intelligence community. Moreover, the Intelligence Committee's bill already provides an adequate remedy if the FISA Court ultimately determines that the collection is improper; it may order the Government to cease collection. The court then has the inherent authority to fashion an appropriate remedy to address the collection and the contents that have been collected in a manner inconsistent with the law and the authorities of the collecting agency. This amendment does not fix a problem with the statute. Instead, it potentially creates a problem that could have unintended operational consequences for our intelligence community. They don't need any more burdens. They have all the challenges they need in trying to intercept, translate, incorporate, and divine the intents of terrorists. There is more than enough work to do for our intelligence analysts just to stay within the existing boundaries we have applied in the protection for American citizens, without them having to fear we will lose vital foreign intelligence collection information because there was some minor deficiency that may later be identified by the court. That would make our country less safe and it is not warranted. Therefore, I encourage my colleagues to join me in voting against this amendment. I yield the floor to my colleague, the chairman.

Mr. BOND

Mr. BOND. Mr. President, our first Member is a distinguished member of our Intelligence Committee, the distinguished junior Senator from North Carolina. I yield to him.

Mr. BOND. I would tell my good friend from North Carolina that the bill we reported out of our committee provides a mechanism for the Government to compel a provider to comply with a directive. If the court finds that the directive was issued properly and is lawful, it must order the provider to comply with the directive and that provider is provided immunity for doing so. But a failure to comply by a company could result in a contempt of court. Both the Government and the provider may appeal any decision to the FISC Court of review and ultimately the Supreme Court. I thank my colleague for his service on the committee and for his very helpful questions.

Mr. BOND. Mr. President, I see the distinguished Senator from Virginia is here, and I would turn to him if he has some questions.

Mr. BOND. I appreciate that.

Mr. BOND. Mr. President, I thank my distinguished colleague from Virginia. The answer to that question is yes. I wish to say what a pleasure it is to serve with the distinguished representative of Virginia, who served his country in the Department of Defense, who pushed through the landmark decision to have a volunteer military, which I might say my son was proud to participate in, and to say that his previous experience on the Intelligence Committee and his long and devoted service on the Senate Armed Services Committee has made him an invaluable member of the committee.

Mr. BOND. That is correct. Now I understand why Admiral McConnell is doing such a good job because he obviously had very good early training. I did not know he had been through the Warner course in intelligence, but that ties up the loose ends, and now I understand more fully.

Mr. BOND. Mr. President, that question has been raised. We have heard that on the floor a number of times. I think it is very important that we dispel that myth right now. The answer is no--a flat no. Our committee bill only allows the targeting of persons outside the United States to obtain foreign intelligence information. It is not dragnet surveillance. The targets of acquisition must be foreign targets and they must be suspected terrorists or spies. The Attorney General and the Director of National Intelligence, whom I will refer to as the DNI, must certify that a significant purpose of the acquisition is to obtain foreign intelligence information. For example, if a foreign target is believed to be an agent or a member of al-Qaida, then all communications of that target could be intercepted. Only Americans who communicate with suspected terrorists abroad will have those specific communications monitored. If those same communications turn out to be innocent, they will be minimized, which is intel community speak for suppressed, so that Americans' privacy interests are protected. It is very misleading and nonfactual to suggest that the intelligence community is spying on parents who are calling their children overseas or students who are talking with their friends, or on our own soldiers in the battlefield. Our intelligence professionals are far too busy tracking real terrorists, members of al-Qaida, than to listen to family discussions or conversations between classmates. Not only do they not have time that is not permitted under this bill.

Mr. BOND. Mr. President, I thank my colleague from North Carolina, because that is precisely what our bill, the FISA Act Amendments bill, does. That information will be turned over to the FBI, which would seek a title III criminal warrant, or a FISA order, to intercept all of the communications of that person, not just communications with targets overseas.

Mr. BOND. This is where the Intelligence Committee bill goes much farther than any other law we have had in our history in protecting U.S. persons; that is, U.S. citizens and others here in the United States. The bill includes express prohibitions against ``reverse targeting,'' and reverse targeting is a knowledge that you can target a person overseas when the real purpose is to target someone in the United States. This is illegal. The intelligence community does not do it. Frankly, it is terribly impractical. They cannot under the law that we have presented to this body target a person inside the United States without a court order. The bill also requires that all acquisitions comply with the protections of the fourth amendment. In addition, the Intelligence Committee bill requires, for the first time in history, that the Foreign Intelligence Surveillance Court--and I will refer to that as the FISC--for the first time in history approve any surveillance of a U.S. person, or an American citizen abroad. This goes beyond the requirement even in existing American criminal law.

Mr. BOND. This provision came about as a result of discussions by members on both sides of the committee who wanted to provide protections for Americans overseas. To do that required a significant expansion and clarification, which is included in the managers' amendment that Senator Rockefeller and I have produced and have pending before the body. Under this bill, the FISC must review and approve the targeting and minimization procedures used by the Government in conducting its foreign targeting operations. The court must find that the targeting procedures are reasonably designed to ensure that the authorized acquisition is limited to the targeted persons reasonably believed to be located outside the United States. The court must then find that minimization procedures comply with the FISA law. The court will also review the joint certification issued by the Attorney General and the DNI to make sure that it contains all of the required elements. If the court finds there is a deficiency in those procedures or the certification--that even for a minor drafting or technical reason they do not comply with the law--the court can order the Government to correct the deficiency or cease the acquisition.

Mr. BOND. Well, it sounds like a reasonable proposal on the surface, but when you look at the law and the structure that is set up, it does not work. The FISC was created in 1978 simply to issue orders for domestic surveillance on particular targets, but the Congress specifically left foreign surveillance activities to the executive branch and to the intelligence community. FISA minimization procedures--the procedure to suppress information on an innocent communication with a person in the United States--are all about protecting the identities of a U.S. person or American citizen. This comes up all of the time in domestic collections. But almost all of the collection under these foreign targeting acquisitions will be on non-U.S. persons who require no protection under FISA minimization procedures. It doesn't make sense to direct the FISC to get involved in assessing compliance with the foreign targeting realm. They have said in their opinion regarding sealed matters that they are not set up to do that, and they do not have the expertise to do that. As a practical matter, when the court assesses compliance with minimization procedures, it would be second-guessing trained analysts' decisions about which foreign terrorist to track and how to do it. They simply are not competent, they are not set up, they don't have the expertise to do that, and they have so stated in their published opinion. They can't make these types of operational decisions.

Mr. BOND. I am certainly glad the Senator brought that up. The court did issue a published opinion this past December where it noted that the FISA Court judges are: Not expected or desired to become experts in . . . foreign intelligence activities, and do not make substantive judgments on the propriety or need for a particular surveillance . . . Even if a typical FISA judge had more expertise in national security matters than a typical district court judge, that expertise would still not equal that of the Executive Branch, which is constitutionally entrusted with protecting national security. Those are the words of the judges on the FISA Court, the FISC. The court knows what to look for when it issues a warrant to tap someone's phone in North Carolina or Virginia. But when it comes to analyzing intelligence leads and deciding which foreign terrorists or spies should be surveilled, the court is simply not competent to make these judgments. That is exactly what the amendment would seek to have them do. This bill already contains numerous oversight reporting and numerous judicial provisions. Those of us who have gone out to look at the operations know how extensive and how carefully supervised they are. There is no reason to ask the FISC to take on the additional authority in the context of foreign targeting, especially where it could result in operational problems or the loss of intelligence and, as the judges have said, is beyond their competence.

Mr. BOND. That is a very good question, because we cannot expect carriers, telephone companies, telecom companies to work with us if they don't have protection. That is why we are seeking retroactive clarification of the civil liability for those who have, in the exercise of their patriotic duty and pursuant to valid directives, participated in the President's terrorist surveillance program. Under this bill, the providers may challenge the directive by filing a petition to modify or set aside the directive of the court. If the court finds the directive does not meet specific requirements or is unlawful, it can grant a petition. If the court does not modify or set aside the directive, it will order the provider to comply with it. Both the Government and the provider may appeal any decision to the FISC Court of review and ultimately the Supreme Court.

Mr. BOND. I say through the Chair, the distinguished Senator from Virginia deserves far more credit than he is ever given. I was trying to sneak in a little bit to say how much we appreciate his service. When he needs to correct me, I always stand corrected. To return to the question, I do have an answer, and that is, the committee conducted a comprehensive and bipartisan review. We interviewed witnesses, we went out to NSA to see how the Terrorist Surveillance Program was implemented, examined documents, including the Department of Justice legal opinions and letters from the Government to providers. The letters were provided to the carriers in regular intervals and stated the activities had been authorized by the President. All the letters also state the Attorney General had determined the activities to be lawful, except for one which stated the determination had been made by the counsel to the President. After conducting this extensive review, the committee concluded the providers that allegedly assisted the TSP acted in good faith and, based on representations of the highest level of the Government, that the program was lawful. Therefore, the committee concluded the civil liability protection for these providers was appropriate, and I draw upon my experience at the law school at the University of Virginia, where my distinguished colleague also studied law, to say that reviewing those documents and letters led me to the conclusion that it was clear on its face that the carriers were receiving a valid, legal directive from the highest authorities in the Federal Government.

Mr. BOND

Mr. BOND. Unfortunately, my colleague from Alabama is right. I know we both don't want to engage in finger-pointing, but some of my colleagues have been making statements about our efforts on the bill, which leave me no choice but to correct the record. I invite any of my colleagues who have a different view to come discuss it with me. It is critical that we move forward. We have a 15-day extension. At the end of 15 days, this body goes on a week's recess. There is no reason we cannot pass this bill, conference with the House, and pass it by February 15 so American citizens will have the additional protections this bill includes, and our carriers will have the liability they must have to continue to participate in the program. I thank my colleague from Alabama.

Mr. BOND. Mr. President, I extend my most sincere thanks to my colleague from Alabama, who is a very valuable member of the Judiciary Committee. He does not let the fact that he was a lawyer and a prosecutor interfere with the exercise of good judgment. I congratulate him on his very perceptive comments. I thank him for participating with me. I also would agree with him. He made the strong point that sensitive intelligence matters should be handled in the Intelligence Committee. Our intelligence community leaders have said it is very difficult to present matters to a committee when they have to deal in closed session on so many things. Even the things that may in themselves not be classified are often related to classified materials. So I hope maybe we can take a look at committee jurisdiction in the future. I will take a few minutes to discuss why it is so important the Senate pass the bipartisan Rockefeller-Bond substitute amendment without adding unnecessary or harmful amendments that have not been vetted by the intelligence community. There are some colleagues who may believe we can just keep adding amendments without causing any problem for our intelligence collectors. But the fact is, the legislation is intended, first and foremost, to keep the intelligence gaps that existed prior to the passage of the Protect America Act, or PAA, closed. If we do not check with the experts in the intelligence community about whether their proposals will enable the intelligence community to keep the gaps closed, and if we do not heed their advice, the legislation can have--and often has-- unintended consequences that impede vital intelligence collection. An example of why this is so important: There was a substitute amendment included in the Rockefeller-Bond bill that provides additional protections for Americans traveling overseas. Originally, this amendment was offered by the Senator from Oregon--a valued member of our committee. His intent--which I share, and the intelligence community shares--is to provide overseas Americans with the same level of court review and approval as Americans in the United States receive. We believe that is very important. The amendment passed in the committee despite my vote in opposition because of the drafting that the amendment had not been vetted by the intelligence community. It turned out it would have been unworkable, causing unintended consequences, including impeding important intelligence collection on legitimate targets, if it was passed as it was. But the chairman and I worked with Senators Wyden and Whitehouse over the past few months so we could make this functional--a well- intentioned amendment, a very valuable addition to this bill. We fixed that provision, and it is in the managers' amendment that Chairman Rockefeller and I have. So we will have a workable bill, one that the DNI supports, and one we can be very proud of, because it does extend additional protections to American citizens and U.S. persons abroad. But when we had to fix this issue, what we thought was a simple amendment took 24 pages of language to make sure we did not have unintended consequences--in an amendment that was originally only 3 pages long. I raise this not to criticize the authors of the amendment but to thank them for their cooperation. But the basic principle is a principle of medicine, and we can apply it to the intelligence legislation: First, do no harm. I am concerned about the unwillingness of some colleagues who have proposed legislation to call the office of the DNI or NSA to make sure their amendments would do no harm. If amendments cause the intelligence gaps to reopen, the legislation will be worthless, probably will not pass, and will not be signed into law. An example of how well a bipartisan FISA reform bill can function is the Protect America Act. I have said before that the PAA did exactly what it was intended to do: it closed the intelligence gaps that threatened the security of our Nation and our troops. It did so in a truncated fashion, but it worked for 6 months. Now, there are some Members who criticize the PAA and call it flawed. But let there be no doubt, the PAA has been a great success. It did not open any new powers that had not existed before the technology changed and brought applications of new limitations on our collectors. Next, I want to call attention to a letter received by the Senate Select Committee on Intelligence on January 25 from the DNI. Director McConnell wrote that the authorities provided by Congress, through the Protect America Act, passed in August of last year, have ``allowed the Intelligence Community to collect vital foreign intelligence information, and made the Nation safer by enabling the IC to close gaps in our foreign intelligence collection.'' Let me repeat that: It has enabled the intelligence community to close gaps in our foreign intelligence collection. More specifically, Director McConnell said the PAA has enabled the intelligence community to obtain information related to disruption of planned terrorist attacks against Americans, efforts by an individual to become a suicide operative, instructions to a foreign terrorist associate about entering the United States, efforts by terrorists to obtain guns and ammunition, terrorist facilitator plans to travel to Europe, information on money transfers; plans for future terrorist attacks, and movements of key extremist groups to evade arrest--among others. While I cannot say anything more publicly about these examples, I can say these are examples of how the PAA disrupted ongoing and planned attacks against our interests, our allies, and our citizens. The Director did send the committee a classified letter laying out the details of these disruptions. He also gave examples of how collection-- that had faltered because of a FISA Court decision in the spring--was renewed under the PAA. As a result, key intelligence against terrorists was collected. I have reviewed the letter. I think any of our colleagues interested in this subject should go to the Senate Intelligence Committee offices or to S-407 to read the classified letter for themselves to see how the PAA has helped save American lives. Director McConnell has told us some targets might not have been pursued without the PAA because of the administrative, analytic, and legal burden of seeking FISA orders. Keep in mind, these orders would have been FISA orders to collect information on foreigners, not Americans. It is clear from my reading of Director McConnell's letter that most of the successes he identified would not have occurred had it not been for the PAA. While the PAA has been key to gathering unique and vital intelligence information, Director McConnell does not support its extension. The reason he does not support the renewal--one that has been critical to enabling the intelligence community he leads to do its job--is because it does not include retroactive civil liability protection. In his letter, and on numerous occasions--and in every substantive discussion I have had with him--the Director has said that we cannot gather this kind of information in sensitive intelligence areas without the cooperation of private parties. Despite the success of the intelligence community's ability to collect intelligence under the PAA, Director McConnell does not support its extension without this retroactive civil liability provision because he believes the voluntary cooperation of private parties is necessary to the success of the program. I have stated previously in answers to questions of my colleagues precisely why it would work. By implication, it seems he is concerned, wisely, I believe, that carriers will no longer cooperate with the Government if they fear being dragged into expensive lawsuits. Again, for all these reasons, we must pass and get the bill out of here--I hope at least by early next week--and pass a conference report before February 15. The Rockefeller-Bond substitute is that bill. A lot of questions have been asked about when we are going to move forward. We have exchanged papers back and forth. Chairman Rockefeller's staff and my staff have negotiated extensively. We need to get the concurrence of the leaders on both sides. I hope we are close to getting a workable framework. This is such a critical piece of legislation. I do not want to hold it up any longer. I know my colleagues have been waiting for votes. Nobody has been more anxious than Chairman Rockefeller and I. We understand how important this issue is. We hope to give this body some real action on moving the bill forward sooner rather than later. We will need the leaders, who will make the decisions. We will need the cooperation of all colleagues on both sides. Let's hope we can come to a successful resolution. Mr. President, I yield the floor and suggest the absence of a quorum.

Mr. BOND

Mr. BOND. Mr. President, I have three colleagues who want to join me in discussions of the FISA bill. I realize in morning business it is supposed to be 10 minutes. Since there are three different Members with whom I wish to have those discussions, I ask unanimous consent to be allotted 30 minutes to--this will be on the FISA bill, but since we are speaking in morning business, I ask unanimous consent to be recognized, with my colleagues, for 30 minutes.