Christopher Dodd

Mr. DODD

Mr. DODD. Mr. President, I rise today to introduce the Disability Savings Act of 2008. This important legislation is designed to help individuals with disabilities live full and productive lives for all their years. As we all know, disability is a part of human experience. The U.S. Census Bureau reports nearly 20 percent of Americans have some level of disability while 12.5 percent reported a severe disability. We should do what we can to make it possible for these Americans to live independently, exert control and choice over their lives, and fully participate in their communities. One of the key ways we can accomplish this goal is to help individuals with disabilities and their families save money for disability related expenses, especially those expected over the course of full life. Over the years, Congress has provided incentives to American families to save for various long term goals: college education, home ownership, and retirement. These incentives have given families the tools to help their children, well after they have left the home. But for families who have a child with a disability, particularly a cognitive disability, these goals may not match their needs. Many of these children will depend on Medicaid, Social Security Disability Insurance, and Supplemental Security Income. They cannot risk losing these benefits. And they may never get to the point where they can consider college or home ownership. These individuals will frequently incur significant additional costs related to services and supports necessary to maintain health and independence. Parents also have to worry about what will happen to their children after they are gone. The World Institute on Disability reports that over 1/3 of adults with disabilities live in households with income of $15,000 or less. According to the 2005 American Community Survey, median earnings for individuals with disabilities were a little more than half of the median income of those without disabilities. It is common for families to provide for individuals with significant disabilities who cannot support themselves. These families often do this at great cost to themselves both financially and emotionally. They do it out of love, and they do not ask to be relieved of their burdens. But they are hoping that we can provide the tools to help them ensure their loved ones can lead full lives for many years. That is why I am introducing the Disability Savings Act of 2008. This bill will encourage individuals with disabilities and their families to save money for their unique disability-related needs in Disability Savings Accounts. These accounts will provide a tax-advantaged mechanism for individuals with disabilities to save money. The interest on these accounts, with a balance of up to $250,000, will be tax free. Expenditures from the accounts for specific qualified services such as education, medical services, employment training and support, and transportation, will not be subject to income tax. The accounts will be easier to manage, and use than other existing savings mechanisms for individuals with disabilities. To be sure these accounts are available to low and moderate income earners, there will be a refundable matching tax credit of up to $1000 for contributions. Account holders can even roll funds from college savings plans and special needs trusts for the same beneficiary into the Disability Savings Account without penalty. These accounts will supplement, not supplant, benefits provided by other, sources such as Medicaid, private insurance, and Supplemental Security Income, SSI, and the assets held within them will not be counted against eligibility for those programs. In order to be eligible to have a Disability Savings Account, beneficiaries must be determined to be blind or disabled by the Social Security Administration or the Disability Determination Service of a state, and be under the age of 65. The accounts can be held and managed through a financial institution by the beneficiary, their spouse or family member, or a legal guardian. I hope that my colleagues will see the benefit of this approach and join me in this effort. I urge them to cosponsor this legislation and work with me to give individuals with disabilities and their families the tools they need to live healthy independent lives. Mr. President, I ask unanimous consent that the text of the bill and a letter of support be printed in the Record.

Mr. DODD

Mr. DODD. Mr. President, next week, members of the afterschool community will be gathering for the 20th anniversary of the National AfterSchool Association Conference. The initial conference held two decades ago marked the first formal meeting of afterschool professionals under their own organization to discuss and develop solutions to address the needs of school-age children during their hours out of school. Of course, back then we didn't call it afterschool. Instead, we talked about ``latchkey'' programs for ``latchkey kids.'' At the outset, these programs replaced the need for latchkeys around the neck with welcoming, safe, and nurturing environments; they were a prime factor in the creation of the Act for Better Child Care. As pioneers in the school-age movement, this passionate, dedicated group of leaders recognized that the needs of these students were distinct from those of early childhood. Their movement helped school- age providers network and share resources, culminating in the creation of the National School-Age Care Alliance, which later became the National Afterschool Association, NAA. Over time, 36 State affiliates were established. In the past two decades, the field has evolved and NAA with it. Parents wanted more opportunities for their children, and the need for assuring quality programming became evident. In collaboration with the School Age Child Project at Wellesley College, NAA developed national quality standards and a national accreditation process for afterschool programs. These standards became the foundation for other groups' guidelines for programs for school-age children. The NAA continues to be a leading voice in the afterschool community with almost 10,000 members nationally and internationally. The professionals who make up NAA's membership supply a critical component of quality programs, providing children with high-quality programming and positive relationships with adult mentors. The NAA has worked on behalf of the afterschool workforce to improve its quality and ensure that the profession's voice is heard. Today, their annual conference remains a key way for the afterschool community to share and network. Afterschool has grown by leaps and bounds and now includes a diversity of programs providing a wide array of opportunities for young people. These programs tackle a variety of issues including bolstering academic performance, preventing childhood obesity, and exposing children to the arts and music. Through time, the NAA has always maintained its commitment to supporting quality programs with well- trained staff dedicated to helping children grow to the best of their abilities. Because of the NAA, parents can more successfully balance their work and home life and millions of American children have safe places to grow and develop when the school day ends. I am proud to join with those in attendance at this milestone NAA conference celebrating the journey of the past 20 years. I congratulate the members of the afterschool community on this special anniversary and thank them for their hard work creating safe and engaging environments for our children.

Mr. DODD

Mr. DODD. Mr. President, I wish to speak on the Consumer Product Safety Commission Reform Bill, which the Senate passed earlier today. I was pleased to cast my vote in support of this important bipartisan bill, and I thank Senators Pryor and Stevens for their hard work in bringing this measure to the floor. The Consumer Product Safety Commission, or CPSC, is one of our Nation's most important Federal agencies. The Commission's principal responsibility entails protecting Americans from risks associated with products sold in the United States. Each year, it develops and enforces safety standards for thousands of goods. These goods range from toys to house-wares. We live in an age of increasing global trade. Consequently, the activities of the CPSC here become more important, as Americans purchase and consume a greater number of products manufactured in foreign nations. In order to meet these expanded responsibilities, the CPSC requires enhanced resources and authorities. I am pleased that the bill passed today provides these enhanced resources and authorities. The Consumer Product Safety Commission reform bill includes new safety standards for a variety of products, including cigarette lighters, furniture, swimming pools, equestrian helmets, portable gasoline containers, strollers, and cribs. It strengthens the certification of safety-standard compliance, establishes more stringent standards on lead in paint, reforms third-party testing for product safety and compliance, and increases civil and/or criminal penalties for noncompliance. The bill also increases CPSC personnel in major ports-of-entry, prohibits CPSC personnel from taking industry-sponsored travel, prohibits the sale of products that are the subject of a recall, expands jurisdiction of the CPSC to cover amusement park rides at a fixed site, and fosters greater coordination among the various agencies involved in consumer safety issues. Further, the legislation doubles the current CPSC authorization level for fiscal year 2009 to $88,500,000, and increases the level to $155,900,000 by fiscal year 2015. This bill also authorizes $40 million for fiscal year 2009 for the improvement of the Commission's research, development, and testing facilities, and also provides $1 million for fiscal year 2009 for research into safety issues related to the use of nanotechnology in consumer products. I am particularly pleased that the bill contains two provisions that I worked to advance regarding new CPSC safety standards for swimming pool drains and equestrian helmets. These standards are vital towards protecting children against accidental drowning and horse-related injuries respectively. I was pleased to work with my colleagues on the Commerce Committee in drafting these standards and incorporating them into the bill. In closing, I believe the Consumer Product Safety Commission reform bill will allow the CPSC to fulfill its responsibility of protecting Americans more effectively, and I look forward to working with my colleagues on future such legislation.

Mr. DODD

Mr. DODD. Mr. President, I ask unanimous consent to speak as in morning business.

Mr. DODD. Mr. President, I rose to address the Senate less than a week ago about this present economic set of circumstances in the country. Obviously, the foreclosure issue is a major question that is causing serious problems all over the country. In fact, it is now becoming more of a global issue than just a domestic issue. I know there have been serious efforts, and I commend the majority leader and others who have tried to put together--along with those of us on the Banking Committee, the Finance Committee, and the Judiciary Committee-- a proposal that would offer some hope and some confidence-building measures to grapple and deal with the foreclosure issue, which is the epicenter, obviously, of this economic crisis we are all seeking answers to. I thought it might be worthwhile to take a couple of minutes this afternoon to again urge the minority--I have worked closely with Senator Shelby, and let me just report on a favorable note that I think we are fairly close to having an FHA reform bill that we will be able to adopt very quickly. While that is not going to solve all of the problems, it is yet another piece in this economic puzzle that deserves our attention. I am hopeful and confident we will be able to do that in relatively short order. I commend the chairman of the Financial Services Committee, Congressman Frank, Barney Frank of the other body, for his work--the work they put together on a bipartisan basis in the House--and his willingness to compromise on this issue so that we can achieve a proposal that would enjoy broad-based support both here and in the other body. This issue we are facing today is a very serious one. I hope all of my colleagues appreciate that statement. That is not hyperbole; the realities are there. One cannot pick up a morning newspaper--it is no longer just in the business section; these issues are now front-page stories with fears of growing economic dislocation, a slowdown in our economy that we have not seen in years, with housing values falling nationally at rates that one has to go back literally to the Great Depression to find similar national statistics. We have rising unemployment rates and rising inflation rates. The cost of a barrel of oil once again is exceeding $100 a barrel. Food prices--my colleague from Rhode Island, the Presiding Officer, pointed out the other day, just in terms of bakeries in the country, the rising cost of wheat. The price of wheat has risen dramatically in the country. These are examples of what is occurring that contributes, obviously, to a worsening economic situation in our country. All we are hoping for here--or I had hoped for before the Easter Passover break--is that we would be able to adopt a series of measures that would attract broad-based support that could offer some relief, some confidence, some optimism to people across the country. I am less optimistic that it is going to happen in a broad sense, but I am still hopeful that FHA reform might be adopted before we leave. We are facing a very serious situation, and we are doing so in a much weaker position than we were just 7 years ago, the last time that our nation was on the brink of a recession. This is not a partisan or an ideological statement. When the Federal Reserve Chairman, Governor Bernanke, was before the Banking Committee last week, I asked him whether he thought we were in a worse position today to respond to the problems we are facing than we were when we last faced a recession in 2001. The Chairman of the Federal Reserve agreed that we are indeed in a worse position today than we were 7 years ago. He specifically said that the standard monetary and fiscal policy tools we have to confront economic downturns are far more constrained today than they were 7 years ago. He also said the American consumer is facing the brunt of this economic downturn. The incoming economic data show how serious the problem is. The Nation's economy has slowed to a near standstill in the fourth quarter, with overall GDP growing by less than 1 percent and private sector GDP growing by only one-tenth of 1 percent. The country had a net loss of jobs in January. That is the first time we have lost jobs in over 4 years. Incoming data on retail sales has been very weak, and most projections, by the way, by private economists and by the Federal Reserve for economic growth this year have been revised down sharply. The Vice Chairman of the Federal Reserve, testifying before the Banking Committee yesterday, indicated that the next several quarters do not offer much hope at all that this economy is going to strengthen. Credit card delinquencies are on the rise as consumers find themselves increasingly unable to tap the equity in their homes to help pay down credit card debt and other financial obligations. Lastly, as I mentioned a minute ago, inflation has increased by 4.1 percent this year. That is the largest increase in 17 years, driven mainly by the rising cost of energy, food, and health care. Oil prices are above $100 a barrel, and the U.S. dollar is at the lowest point in modern history since we began freely floating our currency in 1973. This economic decline has been reflected in the falling stock prices, the falling currency, and the increased volatility in the securities markets. Our economy is in trouble, which is to state the obvious, and the data clearly confirms that, but we don't necessarily help the situation by just acknowledging that. What are we doing? What steps are we taking in this body and in the other body? What steps is the administration taking? What steps is the Federal Reserve taking, and others, to reverse these trends and to offer some hope? I don't want to engage in a self-fulfilling prophecy by reciting the data that is going on here without suggesting that we might not be able to do some things that could help. As I said previously, the catalyst of the current economic crisis is the housing crisis. Overall, 2007 was the first year since data has been kept that the United States had an annual decline in nationwide housing prices. A recent Moody's report forecasts that home values will drop in 2008 by 10 to 15 percent, and others are predicting a similar decline in 2009. This would be the first time since the Great Depression that national home prices have dropped in consecutive years. If the catalyst of the current economic crisis is the housing crisis, then the catalyst of the housing crisis clearly is the foreclosure crisis. I have said that over and over again over the last number of weeks. What steps have we taken? Last week, it was reported that foreclosures in the month of January were up 57 percent compared to a year ago and continue to hit record levels. When all is said and done, over 2 million Americans will lose their homes, it is predicted. There are already 1.4 million homes in foreclosure nationally, including over 14,000 in my home State of Connecticut, according to RealtyTrac, which publishes these figures, as a result of what Secretary Paulson himself has called ``bad lending practices.'' These are lending practices that no sensible banker, no responsible banker would have engaged in. Yet they did. Reckless and careless, sometimes unscrupulous actors in the mortgage industry allowed loans to be made that they knew many people would not be able to afford, particularly when they reached the fully indexed value and price. They engaged in practices that the Federal Reserve, under its prior leadership, did absolutely nothing, in my view, to effectively stop. This crisis affects more families who will lose their homes. Property values for each home located within one-eighth of a square mile will drop by $5,000. That is another specific decline. Another statistic which is not often quoted is that when you have neighborhoods that end up with foreclosed properties, the crime rates go up about 2 percent automatically. So you get declining value with increased crime rates, and, of course, declining values and foreclosed properties mean less property taxes coming in to local counties or communities, which, of course, affects services, including fire, police, and emergency services, not to mention social services. So you get a contagion effect. We now know it has spilled over into student loans. The State of Pennsylvania and the State of Michigan have indicated there may be no student loans available this year. For hard-working, middle-income families who may be current in their mortgage obligations and who are managing their finances well, to find out that their students, their children may not qualify or find student loans available will be yet another added hardship in this country. So this matter is spilling out of control. I know from time to time people say that is excessive language. It is not excessive at all. What disturbs me deeply is that while I don't claim there is any one silver bullet answer to this, and I would be the last to suggest there was a simple package of four or five items that might help cure all of the housing problems. I am not saying anything that is not known by others. The troubling data on the housing market and the economic situation is readily available. It is being reported on a daily basis in the national media. The question is, what are we doing, if anything, to try to reverse these serious trends; to offer some optimism and confidence from this body, the Senate, the Congress of the U.S., the administration, and the regulatory bodies? What can we do to act in a responsible and constructive manner to get the country back on the right track? Yesterday, I chaired a hearing in the Banking Committee with representatives of the Federal bank, thrift, and credit union regulators. The evidence strongly suggests that they were asleep at the switch as this crisis built and when the alarm went off, they merely hit the snooze button. The Federal Reserve, in particular, candidly acknowledged--and I appreciate Don Kohn's testimony--that they failed to properly assess and address excessive risks that were being taken. The regulators abandoned proven standards of applying good judgment and strong supervisory oversight. Instead, they relied on models and estimates that were being used to justify that there was no housing bubble. These models and estimates were wrong. What is so troubling is that questions were raised about them some years ago, before the bubble burst, by regulators people such as Ned Gramlich who, when he sat as a Governor of the Federal Reserve, warned that this problem was growing. The staff at these agencies knew this as well. Yet nothing was done. The warning flare shot into the sky by him and others went largely ignored. Now that this bubble has burst, the regulators are telling us they are ``studying'' what went wrong. While studying the problem has its place, and I appreciate that, I must say that conducting studies of the crisis in the economy and financial markets is, of course, like firefighters responding to a fire by picking up a book and studying how to put out a fire rather than going and doing the job. I think we all know we need action today, not complacency by the frontline bank regulators. That is why Senator Shelby and I will continue to press the regulators for the actions they are taking to address the serious problems that our country is facing. I commend Senator Shelby, who I thought yesterday had good and strong questions for the regulators. The answer we got was that people were too complacent. Many speeches were given and informal conversations took place, but the job of a regulator, the cop on the beat, is not just to give speeches and have informal conversations. If the staff at these agencies knew this bubble could burst, that there were serious problems, that Governors at the Federal Reserve Bank were warning about this problem we are facing, giving speeches and having informal conversations was hardly the kind of action we should have been expecting from very important agencies charged with the responsibility of seeing to it these kinds of problems would be handled before they became as significant as they are today. Congress, too, I think should act. Again, I am not suggesting any one specific action, but the idea that we have no role to play while we are watching this wave grow of people who are going to lose their homes--by the way, the estimates are we could be looking at as many as 2 million to 2.5 million families who could lose their homes, and the effect will be as many as 44 million to 50 million homes as a result of the value of homes exceeding, of course, the financial obligations on the residences. If that is the case, and if it goes on too long, and if unemployment rates continue to rise and energy costs continue to rise and student loans become less available, and the cost of education goes up, and health care continues to go up, families who would have been able to manage owning a home under normal circumstances will have serious trouble surviving these economic circumstances. If these problems increase, for families that have a mortgage in excess of the value of the property, and the home value continues to decline, obviously, those families are going to face additional troubles. Therefore, the problem spreads beyond just--not as if it were just 2, but 2.5 million who are losing their homes to a much larger constituency in this country. So this problem is serious. We are now in another week. I have great respect for what is going on here and dealing with the legislation at hand. But as the majority leader said over and over again, this housing matter is the most serious one in the country. I think the failure to get some agreement and understanding on a package of proposals that we could go forward in a bipartisan fashion is tragic. We will be in here next week on the budget and then we are gone for 2 weeks. While this may seem like academic issues to some people here, if you are that American homeowner out there who lost your job and is watching energy costs go up, with kids you were planning on getting a college education, and student loans may not be available, then this is not an academic issue to you at all. The question is, Where are the people here doing their job? The majority leader offered and said this is the problem we ought to be addressing. Yet because of whatever reasons, we are unwilling or unable to come together to offer some ideas that could offer relief and optimism. I think it is terribly wrong and I worry about the consequences of inaction. I know there have been disagreements about what steps to take. That is legitimate. Candidly, this issue ought to be addressed in a far more urgent fashion than is the norm. If there are different ideas on bankruptcy or tax policy or even on the community development block grant idea or the counseling ideas that are all part of a package we had suggested, then let there be a debate about it; let alternatives be offered. But if we cannot spend a few hours or days talking about an economic crisis that has as its center a foreclosure crisis and a housing crisis, then what are we doing here? This problem is mounting, growing, getting more serious every single day. The failure of this institution to respond in a more responsible way I, again, deeply regret. One point I hope we can all agree on is that doing nothing is not an option. Yet that is what is happening at this very hour. We need to work out these differences and provide solutions that will work. To that end, I will continue to work with my colleague from the Banking Committee, Senator Shelby, on several key issues. I thank him again for his willingness to move forward. We are working together with our counterparts in the House on a final version of the FHA legislation that I mentioned. That bill passed 93 to 1 just weeks ago. My hope is that the House and Senate can resolve those differences and present a final product before we leave next week. Modernizing the Federal Housing Administration is a critical step in responding to the housing crisis. Another important step is comprehensive Government-sponsored enterprise reforms, GSE reforms. I am committed to that issue. We have another hearing I will be holding on that tomorrow, in fact, at the Banking Committee level. So we can hear views from all sides before drafting what I hope will be a bipartisan bill, that we can bring to the Chamber rather quickly for its adoption. As Chairman Bernanke said several days ago in the Banking Committee, our country is in a worse economic situation today to face a recession than we were 7 years ago. Traditional monetary and fiscal tools might not be adequate to face the unprecedented challenges our economy is facing, with national home prices falling, as I mentioned earlier, for the first time since the Great Depression. We must hear new ideas and proposals to address these problems. The strength of our economy 7 years ago is not there today. We don't have the strength of the dollar, we don't have low inflation, and we don't have low unemployment. Our fiscal situation is a far cry from where it was 7 years ago. So we are in a very different situation to rely on traditional market forces to act as a cushion against a likely recession. We need to think creatively about ways to avoid what is growing and, quite obviously, going to come if additional steps are not taken. Unfortunately, the administration has so far been reluctant to hear new ideas and take action on proposals to address these problems. At every single turn of this housing crisis, the administration has been one step behind, unfortunately: one step behind the 2.2 million homeowners facing foreclosure last year; one step behind the financial markets which started tightening credit for student loans and other consumer needs last summer; one step behind those of us in Congress who have called for solutions to the foreclosure crisis for more than a year now; one step behind the regulators at the FDIC who have urged broad-based modifications for homeowners since last spring. Sheila Bair, former legal counsel to Senator Bob Dole, deserves great credit. Almost a year ago, the FDIC, under her leadership, was calling for actions to be taken. Had we acted then, I think the problem would have been a lot less severe than it is today. Now the administration is again one step behind this time, behind the Federal Reserve who is now calling for more action before the housing crisis gets worse. I commend Chairman Bernanke again for his candor and for the speech he gave yesterday in Florida, calling for more creative action before the problem grows worse, as it does almost hourly. It took some time for the Federal Reserve to acknowledge the severity of the housing problem, but they have come around. Days after I convened the first hearing of the 110th Congress on foreclosures, Federal Reserve Board Governor Susan Bies said she didn't ``think there will be a large impact on the prime mortgage industry.'' Last March, Treasury Secretary Paulson reinforced that benign and incorrect view, saying that the economic fallout from the housing market would be ``painful to some lenders, but . . . largely contained.'' By the time I held a second hearing on the subprime abuses on March 22 of last year, the Federal Reserve finally acknowledged that the Fed had acted too slowly to address mortgage lending abuses. The Fed pledged then to do more to protect homeowners. Unfortunately, the administration continued to deny the severity of the problem. Throughout last spring and summer, the Treasury Secretary commented that ``we are at or near the bottom'' of the housing correction and there was no risk to the economy overall. When the Treasury sends such rose-colored messages to the public, it is no surprise that the administration and the industry were slow to assist homeowners with broad-based loan modifications. I organized the first Homeownership Preservation Summit in April of last year, to bring together the Nation's leading mortgage loan servicing companies, regulators, and community organizations to discuss a timetable and a tangible solution to reduce foreclosures. But the private sector, acting alone, yielded minimal results. Moody's found that just 1 percent of loans had been modified in the spring and summer of last year. Instead of taking action throughout these months to help homeowners, the administration continued its happy talk about the housing market and the economy. The Treasury stated in July that troubles in the housing market were ``largely'' over and ``contained.'' It wasn't until November, just a few months ago, that the administration convened its own homeownership preservation summit. Unfortunately, during those 7 months that passed, tens of thousands of new homeowners became delinquent on their mortgages. Instead of working with us in the Congress to develop solutions for homeowners over the summer, the Treasury Secretary said on August 1 that he did not see anything that caused him to reconsider his views, that the economic damage from the housing correction was ``largely contained.'' Echoing Secretary Paulson's benign assessment of the housing market, just days later, President Bush said, ``It looks like we are headed for a soft landing.'' Later that month, in August, I met with Secretary Paulson and Federal Reserve Chairman Bernanke, urging them to use all of the tools at their disposal to address the mortgage market turmoil. I wrote a letter to the Treasury Department and the Department of Housing and Urban Development urging them to move expeditiously to make administrative changes to the Federal Housing Administration single family insurance program to help borrowers escape abusive mortgages by refinancing into more affordable FHA loans. Throughout the fall, FDIC Chair Sheila Bair and I advocated for systemic loan modifications to help homeowners facing foreclosure. Instead of using his authority and influence to promote such solutions, the Treasury Secretary said, ``The idea of across-the-board modifications is not something that this group [of large subprime servicers] is looking to do . . . and it's not something we in this administration are advocating.'' Weeks later, however, the Treasury Secretary changed his view, saying they saw an ``immediate need to see more loan modifications and refinancing and other flexibility'' and a standardization of loss-mitigation metrics to evaluate servicers' performance goals. If I have learned one lesson from this housing crisis, a lesson all of us should have learned, it is that delayed action will cost families, neighborhoods, the economy of our Nation, and, of course, the taxpayers more and more money than timely action would have avoided. Instead of turning a tin ear, we must listen to the growing chorus of homeowners, lenders, servicers, housing counselors, economic experts, and regulators who are calling for bold action to prevent this housing crisis from becoming worse than it is today. I believe bold action must include financing options for homeowners through FHA, the GSEs, and a new fund at FHA that I propose to use to preserve home ownership. We must also do more to slow the tide of foreclosures that are overwhelming many of our communities. And we need to give our local officials the tools and resources to cope with these increases in foreclosed properties. In doing so, we will help break, I believe, the downward cycle that is pushing our economy toward a recession, if we are not already in the middle of one. By acting, we can bring some certainty where today only uncertainty exists. We can help restore the confidence of consumers and investors that is indispensable to economic progress for our Nation. There are some steps we have taken in the housing sphere already. Working closely, again, with Senator Shelby, ranking member of the Banking Committee, we have been able to pass FHA reform legislation. As I mentioned, we have been working with the House to resolve our differences on that legislation. I am committed to working with my colleague from Alabama and the administration to pass a GSE regulatory reform bill so Fannie Mae, Freddie Mac, and the Federal Home Loan Banks can expand their efforts to help people keep their homes. The committee also held extensive oversight hearings on the problems that plague the housing market, including a hearing on January 31 to look at the foreclosure issue. We held a hearing on the state of the economy and financial markets with Secretary of the Treasury Paulson, Chairman Bernanke, and SEC Chairman Christopher Cox. We held a hearing with Chairman Bernanke last week to receive the semiannual monetary policy report, and we held a hearing yesterday on the state of the banking industry with all the Federal bank regulators. We are holding a second hearing on GSE reform tomorrow, and there will be more hearings to come. I also believe that S. 2636 would help address the problems we are facing in the housing and mortgage markets in a number of ways by providing counseling services, dealing with bankruptcy reform, improving disclosures, increasing availability of mortgage revenue bonds, and appropriating emergency funds for local communities struggling with these empty properties. Again, I commend Majority Leader Reid for his leadership on this issue. I emphasize those ideas I mentioned are, by and large, noncontroversial, but I know there are those who disagree with them, as one might expect. That is not a reason not to try to move forward and allow a debate to occur, amendments to be offered to modify any of these ideas or additional ones people might bring to the table. But, doing nothing at all is inexcusable. The fact that days go by, despite the growing alarm bells going off about the seriousness of this problem, as I said a week ago, will be indictable by history if we do not to step up and offer some ideas to get this right. At the end of the day, this legislation by itself is not going to stop foreclosures or restore our communities to economic health. In my view, we need to do more to bring liquidity to the mortgage markets, to help establish value for the subprime securities that are clogging up the system and a way of clearing them out of the markets so capital can once again flow freely. I continue to work on the details of a home ownership preservation entity that makes use of existing platforms, such as FHA or GSEs, to help achieve this result. There are other ideas that I welcome, maybe not this idea, but something similar to it will work. Whatever it is, we ought to bring our practical talents to bear on all this and do something rather than sitting around doing nothing about this issue. The home ownership preservation entity will facilitate the refinancing of distressed mortgages. This idea was originally proposed by the American Enterprise Institute and the Center for American Progress, two organizations that do not normally come together on economic ideas, but they did on this one; two organizations that approach economic issues from very different philosophical perspectives but that agree more action is needed to stem the housing crisis. In its general outline, the home ownership preservation entity would capture the discount for which delinquent and near-delinquent loans are trading in the marketplace through a transparent, market-based process and transfer the discounts to the homeowners so more families can stay in their homes. I would hope such an entity could purchase and restructure these loans in bulk so we could help as many people as possible, but a case- by-case approach is possible as well. I would not rule that out. It would require lenders and investors to recognize losses so there would be no bailout. In my view, this entity should make use of existing institutions, such as FHA and the GSEs, to expedite the process and maximize the process. Every day that goes by without action means more families are going to lose their homes. Obviously, many details need to be fleshed out, I know that, but I am currently drafting legislation for such an idea and plan to introduce it in the coming weeks. The legislation closely mirrors the approach recommended by Federal Reserve Chairman Ben Bernanke in a speech before community lenders he gave yesterday morning in Florida. Again, I encourage all my colleagues to work with us. I see the Senator from Iowa on the floor, the former chairman of the Finance Committee, the ranking member today. I commend the Finance Committee. They have offered some very sound ideas out of their committee to deal with revenue mortgage bonds and other ideas. Again, those ideas will not solve everything, but I commend their committee for stepping up and saying: Here are a couple things that may restore confidence, increase optimism, and may save some families from falling into the worst of all situations. Remember, only 10 percent of these subprime mortgages went to first- time home buyers. Most of them went to people who are making a second mortgage to take care of financial obligations, people who have been in their homes for years building up that equity to take care of future economic difficulties, student loans, health care problems or retirement, and to watch the wealth that accumulated for years disintegrate before their very eyes. Many end up losing the only wealth creator they have had, the long-term financial security for retirement goes out the window, and we are sitting around doing absolutely nothing about it. It is reprehensible. Again, not everyone is in that category. The Senator from Iowa, Senator Grassley, to his credit, and Senator Baucus and their committee have stepped up, and I commend them for it. We are doing our part. What I regret is we cannot find the time for a couple of days to let some of these ideas at least be raised for debate, discussion, and possibly action before we leave. As we take off for our 2-week break and enjoy our families, travel, and do whatever else we do, in that time there will be people losing their homes in the country, and maybe, just maybe, if we stepped up to the plate, we might have avoided that from happening. I think it is sad, indeed, that we cannot find the time to do it, unwilling to sit down and engage in what this body was created for--for healthy, responsible debate about actions we ought to be taking to avoid this problem that grows worse by the hour. I yield the floor.

Mr. DODD

Mr. DODD. Mr. President, I wish to mark the loss of an outstanding American intellect--and, what's more, a decent and a well-loved man. William F. Buckley, Jr., died last week at the age of 82. He was found at work at his desk, pen in hand--and I don't think he could have imagined a more fitting exit. Few thinkers were more prolific than Bill Buckley--his total catalogue amounts to more than 50 books and thousands and thousands of columns, not to mention his three decades on the pioneering debate program ``Firing Line.'' Few writers wielded more influence--the entire modern conservative movement honors him as its founder. And few figures in our national life earned such admiration-- all the way from Ronald Reagan, who told Buckley, ``You didn't just part the Red Sea--you rolled it back, dried it up and left it exposed, for all the world to see,'' to the many writers, activists, and leaders who counted him as a mentor and inspiration. He was a good friend of my parents, Thomas and Grace Dodd, and one of Connecticut's best-known native sons. I was especially proud to see him in attendance at the dedication of the Thomas J. Dodd Library in Storrs; like my father, Bill Buckley was a dedicated foe of totalitarianism in all its forms. In the wake of his death, tributes have risen from left and right and from every point in between. Even those who stood against Bill's staunch conservatism respected his intellectual rigor and integrity. In the inaugural issue of National Review, which Bill launched in 1955 at the age of 30, he wrote this: ``Our political economy and our high- energy industry run on large, general principles, on ideas--not by day- to-day guess work, expedients and improvisations. Ideas have to go into exchange to become or remain operative; and the medium of such exchange is the printed word.'' It was that commitment to ideas, to reasoned and courteous debate, that we appreciated most in Bill and that we will miss most. His intellectual honesty spared neither himself nor his friends. When he changed his mind--as he did on civil rights, on Vietnam, and on Iraq--he did it publicly and forthrightly. And long after the movement he founded took on a life of its own, Bill continued to hold it to his high standards and to call it to account. In his last years, he wrote: ``Conservatives pride themselves on resisting change, which is as it should be. But intelligent deference to tradition and stability can evolve into intellectual sloth and moral fanaticism, as when conservatives simply decline to look up from dogma because the effort to raise their heads and reconsider is too great.'' Bill resisted dogma, not because it was often wrong but because it was always lazy. He was too energetic for that. And while he pioneered new thinking, worked to rid the conservative movement of xenophobia, and even staged a quixotic run for mayor of New York City--asked what he would do if elected, he replied: ``Demand a recount!''--he developed a one-of-a-kind prose style and public persona. ``I am lapidary but not eristic when I use big words,'' he said. Those are my thoughts exactly. Bill Buckley lived a full life, devoted to words, to ideas, and to his deeply-held principles. We didn't agree on much. But given his grace, his wit, and his deep erudition, I can think of few people with whom disagreement was so agreeable. I request unanimous consent that the attached article, ``May We Not Lose His Kind,'' be printed in the Record.

Mr. DODD

Mr. DODD. Mr. President, I come to the floor today to introduce with my colleagues Senators Schumer, Reed, Menendez and Brown, the Section 8 Voucher Reform Act of 2008, a bill to improve our Nation's largest initiative to assist low-income families afford housing. Section 8 housing vouchers help 2 million American families--including many children, seniors and people with disabilities--afford safe, decent and stable housing. The current crisis in the U.S. housing market is having ripple effects throughout our Nation. Families are losing their homes--both homeowners and renters whose properties are being foreclosed upon. Those who can hold onto their homes have seen significant losses in equity, and many owe more on their mortgage than the value of their home. This crisis in the housing sector is causing a significant slowdown in our economy, and housing assistance will need to be strengthened so families have access to safe, affordable housing. Without housing assistance, many families would lack the stability to find and retain employment, and many children would be unable to adequately perform in school because of multiple moves or health problems resulting from inadequate housing. Though millions of families are assisted through housing programs, the need for additional housing opportunities is acute. The Joint Center for Housing Studies found that last year the number of severely cost-burdened households, those that pay more than half of their income towards rent, jumped by 1.2 million to a total of 17 million. This is one in seven U.S. households that struggle to afford housing without foregoing other basic needs. Housing vouchers are a successful way to provide stability for millions of Americans. Through this public-private partnership, vouchers allow low- income, working Americans to live closer to employment and educational opportunities, and nearer to social and familial networks and support. While housing vouchers are a critical tool, the program needs to be updated so that additional families can benefit, and so that taxpayer dollars are spent more efficiently. The voucher reform bill that I am introducing today will help attract additional private landlords, reduce administrative burdens, and help more families achieve self-sufficiency. This bill creates a stable and efficient formula for allocating voucher funds so that families do not lose their housing. Under this formula, housing agencies are encouraged to lower the costs per voucher, helping to create efficiencies in the program and allowing more people to access needed housing opportunities. The bill encourages employment by allowing voucher holders to keep more of their earnings, while ensuring that they pay fair rents. Systematic funding is provided for Family Self-Sufficiency coordinators so that more families can access this successful program aimed at increasing earnings and saving for homeownership. The bill authorizes 20,000 additional incremental housing vouchers to help meet the great and growing demand for assistance from low-income working families, seniors, and people with disabilities. Under this bill, administrative burdens are eased, so that housing agencies spend less time and funding on paperwork, and more time and funding on assisting families in need. To more effectively use program resources, the bill requires unit inspections every 2 years instead of annually. While the bill retains the requirement that tenants pay 30 percent of their income towards rent, it streamlines and standardizes the calculation of income so that housing agencies can rely on standard, as opposed to individualized, income deductions. This bill will greatly improve the voucher program, and I am pleased to be sponsoring this legislation. It has support from more than 80 local and national groups, including the Lawyers Committee for Civil Rights Under Law, the Paralyzed Veterans of America, and the National Alliance to End Homelessness. This is a strong and needed bill, and I urge my colleagues to support our efforts to provide additional affordable housing opportunities to low-income families all across our Nation. Mr. President, I ask unanimous consent that the text of the bill, a list of supporters, and a section-by-section analysis be printed in the Record.

Mr. DODD

Mr. DODD. Mr. President, I come to the floor today to introduce with my colleagues Senators Schumer, Reed, Menendez and Brown, the Section 8 Voucher Reform Act of 2008, a bill to improve our Nation's largest initiative to assist low-income families afford housing. Section 8 housing vouchers help 2 million American families--including many children, seniors and people with disabilities--afford safe, decent and stable housing. The current crisis in the U.S. housing market is having ripple effects throughout our Nation. Families are losing their homes--both homeowners and renters whose properties are being foreclosed upon. Those who can hold onto their homes have seen significant losses in equity, and many owe more on their mortgage than the value of their home. This crisis in the housing sector is causing a significant slowdown in our economy, and housing assistance will need to be strengthened so families have access to safe, affordable housing. Without housing assistance, many families would lack the stability to find and retain employment, and many children would be unable to adequately perform in school because of multiple moves or health problems resulting from inadequate housing. Though millions of families are assisted through housing programs, the need for additional housing opportunities is acute. The Joint Center for Housing Studies found that last year the number of severely cost-burdened households, those that pay more than half of their income towards rent, jumped by 1.2 million to a total of 17 million. This is one in seven U.S. households that struggle to afford housing without foregoing other basic needs. Housing vouchers are a successful way to provide stability for millions of Americans. Through this public-private partnership, vouchers allow low- income, working Americans to live closer to employment and educational opportunities, and nearer to social and familial networks and support. While housing vouchers are a critical tool, the program needs to be updated so that additional families can benefit, and so that taxpayer dollars are spent more efficiently. The voucher reform bill that I am introducing today will help attract additional private landlords, reduce administrative burdens, and help more families achieve self-sufficiency. This bill creates a stable and efficient formula for allocating voucher funds so that families do not lose their housing. Under this formula, housing agencies are encouraged to lower the costs per voucher, helping to create efficiencies in the program and allowing more people to access needed housing opportunities. The bill encourages employment by allowing voucher holders to keep more of their earnings, while ensuring that they pay fair rents. Systematic funding is provided for Family Self-Sufficiency coordinators so that more families can access this successful program aimed at increasing earnings and saving for homeownership. The bill authorizes 20,000 additional incremental housing vouchers to help meet the great and growing demand for assistance from low-income working families, seniors, and people with disabilities. Under this bill, administrative burdens are eased, so that housing agencies spend less time and funding on paperwork, and more time and funding on assisting families in need. To more effectively use program resources, the bill requires unit inspections every 2 years instead of annually. While the bill retains the requirement that tenants pay 30 percent of their income towards rent, it streamlines and standardizes the calculation of income so that housing agencies can rely on standard, as opposed to individualized, income deductions. This bill will greatly improve the voucher program, and I am pleased to be sponsoring this legislation. It has support from more than 80 local and national groups, including the Lawyers Committee for Civil Rights Under Law, the Paralyzed Veterans of America, and the National Alliance to End Homelessness. This is a strong and needed bill, and I urge my colleagues to support our efforts to provide additional affordable housing opportunities to low-income families all across our Nation. Mr. President, I ask unanimous consent that the text of the bill, a list of supporters, and a section-by-section analysis be printed in the Record.

Mr. DODD

Mr. DODD. I ask unanimous consent that I be recognized for 15 minutes after the Senator from Washington.

Mr. DODD

Mr. DODD. Mr. President, before the majority leader leaves and others leave, the majority whip, let me point out that just as these presentations were made, we had a long discussion, we had two caucuses, the Senate Democratic caucuses--not unlike when the Republicans have their conference every week--to talk about the various provisions. In fact, I made the presentation briefly before the caucus 2 weeks ago involving these various ideas. There were a lot of other ideas. There was an exclusive list in terms of what we could do in order to generate a new level of optimism in our economy mostly related to the housing crisis which is the epicenter of this problem. So I want the record to reflect that as the chairman of the Senate Banking Committee, I know the chairman of the Finance Committee and the chairman of the Judiciary Committee, Senator Leahy, were all involved in those discussions, as were others who had various other ideas as to whether to include them in a package, other amendments. This obviously was work in progress, but it is important that the record reflect that there was an ongoing conversation about this.

Mr. DODD. I am happy to yield.

Mr. DODD. Mr. President, I thank the leader very much for that, and he is absolutely correct. In fact, he raised an issue, and I said I haven't talked with Senator Shelby and that is the reason he graciously acquiesced to my desire to keep a certain matter out of the committee proposal until we had an understanding. That is the way this body functions well, so you have to have that kind of relationship. You can make two choices. You can propose things and throw them out there in the hopes that something may happen, but usually they don't because you haven't bothered to consult, or you can do it the other way, which is slower, more deliberate, more frustrating in some ways, but ultimately you produce products people can support. I wish to point out that in the last year, the Banking Committee marked up some 17 pieces of legislation and had 35 hearings. Of those 17 pieces of legislation, 7 of them have become law. There were only two negative votes cast against all those provisions because Richard Shelby, the Senator from Alabama, the former chairman of the committee, and I worked those matters out in a way so our colleagues, almost unanimously in every case, were able to support us. I intended to actually speak before the cloture vote and was unable to do so with the time constraints. I want to express, if I can, over the next few minutes, my concerns about where we are economically in this country, as chairman of the Banking Committee. Today we had, once again, the Chairman of the Federal Reserve Board in front of the Banking Committee. Chairman Bernanke was before the committee reporting, as the law requires, on monetary policy. The conversation was not limited to that, as you might imagine. It covered the housing issues, foreclosure issues, as well as other questions under the jurisdiction of the Federal Reserve Board, as well as matters of concern to both Democrats and Republicans. Several weeks ago, we had Chairman Bernanke, Treasury Secretary Hank Paulson, as well as Christopher Cox, Chairman of the SEC, before the Committee to discuss with us a wide range of issues covering the economy of our Nation. We have had hearings on a number of issues affecting the very question before us. A lot of this data has already been laid out by others, but it is worth repeating to give a sense of the magnitude of the problem. It is not exaggeration or hyperbole to suggest that we are in perilous times economically. This is not a normal downturn or sort of a problem that might go away in the next 6 or 8 months in the absence of us taking action. Let me say, I am a great believer in market forces. Almost a year ago, when this problem first emerged, as the new chairman of the Banking Committee, I convened the members of the committee along with the stakeholders involved in the housing crisis in the committee room of the Banking Committee. Senator Richard Shelby, to his credit, was there as we listened to the stakeholders talking about what could be done absent legislation being passed, absent new regulations being formulated, in order to keep people in their homes who are facing foreclosure, and to minimize the problem of a growing number of economic dislocations as a result of this housing crisis. We were urged back in May, absent any legislation, to let the marketplace work to develop a solution. For this Member, this is the ideal solution, when it can work. I don't believe you have to jump in with bills or regulations if the market can, in fact, provide answers. So we sat back and said, ``let the market work.'' To some extent, the market did work--it flushed out many of the bad operators. Unfortunately, what has not happened is that the stakeholders have not really done what I thought they were going to do, which is aggressively endeavor to help those people who are in trouble and facing delinquencies or are on the brink of foreclosure to keep people in their homes. This was not about helping investors. It was the owner-occupied homes we were concerned about. Regrettably, I am here to tell you that a year later the number of people helped out by that request has been minimal. I will share the statistics of how small a number we are talking about. While the Secretary of the Treasury, Hank Paulson, whom I respect, still pursues and persists as he did again today, that this Hope Now Alliance effort may work, this Member is less than optimistic about that having watched the process fail to work for the past year, as the problem got larger. Today, the situation continues to deteriorate, and it is not limited to housing. That is the point I want to make at the outset. There is a contagion effect that is spreading to other parts of the economy. So while I am disappointed that cloture was not invoked within the last hour, my hope is that the leaders would give us another opportunity in the coming days, before we go into that March recess, the Easter/Passover recess, to actually be able to put something together to present to our colleagues that might enjoy the bipartisan support that this issue deserves. So I appeal to them this evening, in addition to talking about the problem, to give Senators Shelby, Baucus, Leahy, Specter, and Grassley, the ranking Republicans on the respective committees, a chance to pull some things together in the next several days and present that to our colleagues to see if we cannot do something about this issue. I make that plea this evening, and I am prepared to do whatever I can to try to accommodate many various ideas. That is not to suggest that everything will be adopted, but it is worthy of this body's time to address itself to this issue. The statistics I am about to share with you, I think, make the case more eloquently than anything I could say this evening about the perilous circumstances in which we are operating today. The economy slowed to a crawl at the end of last year. Economic growth was six- tenths of 1 percent. The data that we have received so far this year indicates the problem is going to get worse in 2008. The country lost jobs in January. That is the first time in 4 years that happened. Credit card delinquencies are on the rise as consumers find themselves increasingly unable to tap into the equity of their homes to help pay down their credit cards and other bills. To put that into perspective, the median income of Americans is around $48,000 a year, I believe. Consumer debt, revolving debt, on average, is $9,300 and growing. Savings rates are negative. So in addition to the Federal deficit, we should talk about consumer debt in this country, which is growing. People's ability to resolve that growing debt problem has been significantly affected as a result of the loss of value in homes. Lastly, inflation increased by 4.1 percent last year, the largest increase in 17 years, driven mainly by the rising cost of energy, food, and health care as well. Industrial production is flat, and we have been hemorrhaging jobs in the manufacturing sector. Our national economy is clearly in deep trouble. I don't enjoy saying that. That worries me. One of the things I admire about Ben Bernanke, Chairman of the Federal Reserve Bank, is that he has been very clear about the problem. While we may not like to hear it, I am sure others would like him to paint a rosy picture about all of this. I think he is doing a good job as Chairman of the Federal Reserve in laying out clearly to the administration and Members of Congress the seriousness of this problem. He is judicious in his choice of words. He doesn't engage in alarmist language. If you listen carefully to what he is saying, it is not substantially different than what I am saying. We are in perilous times economically, and we need to spend time on these issues in this body. We are charged with that by the American people. This issue demands our attention. I hope we can come back to it in the coming days. The epicenter of this economic trouble is the housing crisis. In fact, the current housing market is the worst since the Great Depression. That is not hyperbole, Mr. President. For example, this first chart is titled ``Annual Change in Home Value.'' It indicates what home values have done over the last 8 years, from 2000 to 2008. In 2000, home values increased by almost 5 percent; in 2001, another 7 or 8 percent; and then another 8 percent; and in 2005 in excess of 10 percent; and then the price increases slowed in 2006. Then, for the first time nationally--not regionally--in 2007 we see declining values. In 2008, we expect to see an even deeper decline--in excess of 10 percent. Mr. President, this is the first time since the Great Depression that home values have declined nationally. All of us are familiar with regional declines. We saw that in the late 1980s. But this is the first time that we have seen an annual drop in home values on a national basis. It is worthwhile to note that. It is a major concern. While many of us have experienced home price drops in our regions or local markets, 2007 was the first year since data has been kept that the U.S. had an annual decline nationwide on housing prices. Case-Shiller data, released earlier this week, showed a 20-percent decline in home prices from the fourth quarter of 2006 to the fourth quarter of 2007, the steepest decline ever recorded. Mr. President, these words I am using ought to put this in perspective and give some indication of how serious this is. These are the steepest declines ever recorded by this data. A recent Moody's report forecasts that home values will drop in 2008 by 10 to 15 percent. In 2007, as a whole, single-family home sales fell 13 percent. New home sales fell in excess of 40 percent--actually, 40.7 percent year over year in December, the weakest performance in 27 years. In January, home sales fell to their lowest levels in 9 years. The inventory for existing homes for sale jumped by 5.5 percent in January alone and stands at over 4 million units, almost double the number in January of 2005. This is equal to over 10 months of supply. The ongoing glut of unsold homes means that home prices will continue to fall into the future. These are record numbers, in the last number of years. We have not seen the worst of it, unfortunately. There are over 1 million borrowers with subprime and other exotic mortgages who are over 60 days delinquent. With about 1.8 million subprime ARMs, valued at about $500 billion resetting to higher rates in the next 18 months, there is no doubt that this problem is going to deepen. As a result, I will put up the second chart of official data. This says ``New Homes Entering into Foreclosure.'' These are important numbers. Already, when I gave you the title of this, you began to see, obviously, what is happening in the fourth quarter of 2007. These numbers begin in the second quarter of 2005. I know it is hard to see. The first number is the second quarter of 2005. The numbers run from then to the fourth quarter of 2007, just ending a few months ago. You can get some idea of the homes entering foreclosure in this country. Again, it is in record numbers. We are experiencing historic highs in both the rate of new foreclosures and the percentage of all loans in foreclosure, according to the Mortgage Bankers Association. Mark Zandi, an economist at Moodys.com, estimates that 3 million loans will default between 2007 and mid-2009, of which 2 million will end in foreclosure sale. Over 23 percent of subprime loans are now 60 days or more delinquent in foreclosure. Those are huge numbers. In January alone, Mr. President, foreclosures were up 57 percent, and bank repossessions were up 90 percent from January 2007, according to RealtyTrac data. There are currently 1.4 million families in foreclosure. The third chart I want to show you gives you some idea of the magnitude of this in terms of dollars and cents. It is called ``Foreclosures: Impacts on Families.'' At least 2.2 million families are losing their homes. That is a staggering number. We always see every year that there are some foreclosures. Now we are talking about numbers that are unprecedented. The loss in home equity in the neighborhoods is over $165 billion. There will be a net loss of home ownership and wealth especially for African-American and Latinos families. This is a significant problem. The fourth chart says ``Adjustable Rate Mortgages Currently Scheduled to Have Interest Rate Reset.'' I think everybody knows what I am talking about here the reset under what is called an ARM is an adjustable rate mortgage. As an aside, ARMs can be a very attractive and valuable product for certain consumers. Frankly, these mortgages were marketed to too many people who, could not handle ARMs. I don't want ARMs to become a bad word, because they can be valuable for certain consumers in certain economic categories. But for many people they are dangerous.

Mr. DODD. Certainly.

Mr. DODD. Another 10 minutes.

Mr. DODD. Mr. President, what happens under ARMs is that there is a teaser rate, which is very low. You lure people in with the teaser rate--and I am now talking about people who should not be in ARMs. Then, after the teaser period ends, the rate rises to the much higher fully indexed rate. What happens, of course, at a teaser rate, many people may be more than capable of meeting that obligation. Many mortgage brokers are marketing these products without being honest and forthright about what the fully indexed rate will be, and what the borrower's financial responsibility will be. It is also important to state that borrowers have a responsibility as well as lenders. But in too many cases, those borrowers were being lured into situations that the brokers fully well knew that the borrowers were never going to be able to meet. What are we looking at in this chart is the number of loans facing an interest rate reset, which means, when these higher rates kick in. We talk about resets occurring along the way. This chart is specifically designed to describe the reset problem. Adjustable rate mortgages are currently scheduled to have interest rate resets, and the dollar value of mortgages that will reset is in the billions of dollars, to give some sense of the magnitude of the problem. This problem will last far beyond 2008. As this chart shows, even after the current subprime wave washes over us, we will face serious problems with interest-only and option-ARM resets for the next 4 years. In short, the problem is growing; not going away, but growing. The crisis affects more than the families who will lose their homes. There will be an increased demand for social services, police, fire, and other services that ameliorate the impact of increases in foreclosed and abandoned property. You don't have to have a Ph.D. in housing to know the negative ripple effects on the community of abandoned and foreclosed properties that are sitting on the market. The value of neighboring homes, even if the neighbor is currently doing everything right, you don't have to be an expert in real estate to know that if your next-door neighbor or people on your street have an abandoned property, that it causes the home that you have taken care of, that you have done everything right by, to decrease in value. Beyond the obvious impact of the foreclosure problem, there is a domino effect that is growing. Yet State and local governments have fewer resources, as we know, because as we have property foreclosed and not paying taxes, we find again the property taxes which most communities rely on for social services, police, fire, and the like also decline. That is what I want to show on this chart, the foreclosure impact on neighborhoods beyond the individual home. Property values for each home within one-eighth mile of a foreclosed house dropped by an average of $5,000. This was a study done in Chicago. I see my friend from Tennessee, Lamar Alexander. I was talking with him about this a day or so ago. If you take a square block, which is roughly one-eighth of a square mile, when one foreclosure occurs in that area, then the property value of every other home on that city block, even though every other home is current in its mortgage obligations, taxes and the rest, the home values decline almost immediately by $5,000. That is the study. Again, it is bad enough to lose the one property, but what is happening to everyone else in that neighborhood is they are also suffering. That is what this number is designed to show. The result of that is that somewhere between 44 and 50 million homes adjacent to subprime foreclosed property will lose value if the problem persists, and localities are going to lose--the estimates are somewhere from $4.5 billion and $5 billion in property taxes and other tax revenues as a result of foreclosed properties. The effects go far beyond the individual who is adversely affected by these issues. Unfortunately, we are seeing the contagion spread beyond the mortgage markets to the capital markets as a whole, both in the United States and globally. Yet as the Federal Reserve chairman acknowledged at a Banking Committee hearing this morning, our country is in a worse position to deal with the fallout of the housing and financial market crisis we are experiencing than we were after the tech bubble burst that put us into the recession of 2001. Former Federal Reserve Vice Chairman Alan Blinder puts it like this: . . . the mortgage foreclosure problem grows and new strains in the financial system keep popping up like a not- very-funny version of whack-a-mole. That is from a New York Times story of last week. Many economists call this a negative feedback loop. It works like this: Homeowners, saddled with abusive mortgages that never should have been made and which they cannot afford, are forced into foreclosure at historic rates, forcing new homes to be sold into a marketplace already glutted with unsold homes. The rising supply pushes down home prices further, putting more borrowers under water and at risk, even borrowers with prime mortgages. Homeowners who can afford to pay their mortgages are seeing the equity they have built over the years evaporate before their eyes. According to Martin Feldstein, the chairman of President Reagan's Council of Economic Advisors, every 10-percent fall in home prices cuts household wealth by $2 trillion and household spending by $100 billion. Let me repeat that. According to Martin Feldstein, every 10-percent fall in home prices--and we are watching that this year already and the estimates are for next year maybe as high as 15 percent--every 10- percent decline cuts household wealth by $2 trillion and household spending by $100 billion. So if Moody's current estimate is correct that home prices will drop by 10 to 15 percent this year, household spending will fall by $100 billion to $150 billion, and household wealth will fall by $2 trillion to $3 trillion this year alone. These losses do not stop with families who have lost their home equity. The securities backed by these loans, both subprime and increasingly by other higher quality mortgages, get downgraded, as we know, forcing banks and securities firms who own these securities to set aside billions of dollars against real or potential losses. These write-downs, as they are called, and increased loss reserves reduce the ability of these institutions to lend any money, whether for mortgages or commercial loans, even to hire quality borrowers. Worse, the uncertainty about what the future might bring and what the subprime mortgage-backed securities might be worth are forcing these banks to hoard their capital against potential future disaster. As a result, as Paul Ashworth, an economist with Capital Economics, in London said: Rather ominously, borrowing costs for even most creditworthy of firms have started to rise. As we know, homeowners who can still get mortgages have seen these rates rise. Banks are tightening their standards for both credit cards and commercial real estate loans, and home equity loans are being pulled as home prices declined, forcing families to find alternative means of financing their children's education, home repairs, and other activities. Let me point out, we saw in this morning's newspapers that the Commonwealth of Pennsylvania--I see my good friend Bob Casey from Pennsylvania--it was pointing out the difficulty that could occur this year with student loans. The State of Michigan last week reported a very similar situation. So, once again, while we are talking about a housing crisis, we are already getting stories that student loans may not be as available for this year as they have been. This is now going beyond the issue of what happens with someone who gets their property foreclosed. It now could very well reach into the critical issue of student loans which are absolutely essential for middle-income working families so their children have an opportunity for higher education. That is how serious this problem is. Businesses, universities, and public entities are finding it harder and harder and far more expensive to roll over their existing debt or to get credit at all. For example, we saw recently how the major Wall Street houses, from Morgan Stanley and Goldman Sachs to Citigroup and Merrill Lynch, have refused to commit capital to the auction rate market, a market that was supposed to allow investors to sell their debt each week via auction that sets interest rates. As a result, many auctions are failing, saddling high-quality entities with absurdly high interest rates. Two weeks ago, for instance, the Port Authority of New York and New Jersey was forced to pay 20-percent interest on its debt because their auction failed. Student loan programs, I mentioned a moment ago, in Michigan and Pennsylvania have also shut down--shut down, Mr. President. Since last August, we have seen this negative feedback loop continue its downward spiral despite repeated rate cuts and other actions taken by the Federal Reserve and international central bankers intended to stem this tide. The result is a crisis of confidence that has serious implications for our country. Again, let me quote Professor Feldstein, who served as President Reagan's top economic adviser: The principal cause for concern today is the paralysis of the credit markets. The collapse of confidence in credit markets is now preventing that necessary extension of credit. The decline of credit creation includes not only the banks but also the bond markets, hedge funds, insurance companies and mutual funds. Securitization, leveraged buyouts and credit insurance have also atrophied. The catalyst of this downward economic spiral is the housing crisis, and the face of this housing crisis is the historic increase in foreclosures. Therefore, in my view, any serious effort to address our economic woes must include an effort to take on the foreclosure crisis. We have to begin there. If we do not deal with that issue, then we are flirting around with disaster, in my view, and avoiding the central question. So we must do something to slow the tide of foreclosures overcoming many of our citizens, and we need to give our local officials the tools and resources to cope with the increases in foreclosed properties. In doing so, we will help break the downward cycle that is pushing our economy toward a recession if we are not already in the middle of one. By acting, we can bring some certainty where today only uncertainty exists. We can help restore the confidence of consumers and investors that is absolutely indispensable to economic progress in our Nation. There are some steps we have taken in the housing sphere already. Working closely with my friend, Senator Richard Shelby, the ranking member of the Banking Committee, and the administration, we were able to pass the FHA reform legislation. We have started working with the House to resolve our differences. My hope is that within a few days, Senator Shelby and I will be able to present to you a package that has been passed by both Houses. I am committed to work with Senator Shelby and the administration to pass a government-sponsored enterprise regulatory reform bill so that Fannie Mae, Freddie Mac, and the Federal Home Loan Banks can expand their efforts to help people stay in their homes. The committee has held extensive oversight hearings on the problems that plague the housing markets, including a hearing on January 31 to look at the foreclosure issue. And there will be more hearings to come. I do not contend that S. 2636 will solve all the problems. The bill, unfortunately, did not receive the necessary cloture votes. But it is a start, and it will help in a number of ways that were talked about. I see my colleagues are anxious to speak as well. We heard about the provision on bankruptcy reform, which I support, about some tax provisions that would have made some difference, and I will leave the record to describe what other proposals are included, including the counseling provision that Senator Schumer, myself, and others have championed for a long time to help consumers, as well as community development block grants for cities to acquire and rehabilitate foreclosed properties.

Mr. DODD. Mr. President, I ask unanimous consent that I may proceed for 2 additional minutes.

Mr. DODD. Mr. President, obviously we are not going to get to this bill tonight. My hope would have been that, at this hour, we would have been debating amendments and ideas included in that package. That did not happen. That is no reason for this not to go forward in the future, however. As I said at the outset of these remarks, I know all of my colleagues care about this issue. This is one of those moments when we have nothing less than the highest obligations to deal with this crisis. We ought to have enough ability to deal with this crisis, with the talent that exists in this Chamber, putting aside the ideological debates that go on here all the time. We will be indicted in the public's mind if we do not step up and address this issue. Ultimately if we do create the opportunity and ability to step in and do what needs to be done to address this situation, the blame will fall right here and the burden will fall on the taxpayers of America. We will be indicted, and should be, if we do not have the wisdom, the ability, the courage, the intestinal fortitude to step up to craft ideas that can make a difference. My final plea this evening is to the leaders--and I know the majority leader feels as passionately about this as I do--and that is to set aside whatever else we are dealing with for a number of days to give those of us, as he has, and the responsibility of the committees involved to bring together a collection of these ideas to this Chamber and then set aside the necessary time over several days to debate them thoroughly as to how we ought to proceed and to present the American public with a series of notions and proposals that I think could make a difference on this issue. I do not claim clairvoyance. I do not claim the result would be perfect. But I think the very act of acting has its benefits, putting aside whether we do all the things the American people would like us to do. The idea that the Senate, the Congress of the United States is stepping up to do something for the people who, at this very hour, are hanging by their collective fingernails wondering whether everything they saved and put aside for their lives is going to be lost in the coming days. There are millions and millions of people adversely affected. It is not just the foreclosures. We are talking about 44 million to 50 million homes being adversely affected because we did not have the intestinal fortitude, wisdom, and desire to step up and make a difference, then we ought to be indicted. So, Mr. President, I stand ready and prepared, as I know many others do, to sit down and work out a series of proposals to bring up before we depart here in 2 weeks for the Easter and Passover break to get this job done. And that is my offer this evening. I know I speak for Senator Shelby and for the members of my committee, who care deeply about this issue as well, that we will do anything and everything we have to do to assist in this effort. With that, Mr. President, I yield the floor.

Mr. DODD. Mr. President, if the Senator will yield for a minute, I don't want to interrupt, because I know others want to be heard, but I listened very carefully to what the majority leader said earlier, and he did an eloquent job of explaining this himself, but I want the record to reflect this as well. I think the only concern the majority leader had, and I say this respectfully to my friend from Tennessee, was that he asked what these other amendments might be, which is a very legitimate request--not to suggest he has the right to decide the outcome of them but merely what they would be. That is the job of the majority leader, obviously. To say we have five amendments and you have to wait until we get to them to tell you what they are obviously makes his job very difficult, if not impossible. Just as the leader laid out what the bill was and what we would be offering, I think, in fairness, in order to move this along--and I don't want to get bogged down in this because this is how we can get lost in the weeds of all of this, but I think, in fairness to the majority leader, he felt as though it was not right to be denied the right to know what the various amendments would be. Not to say he would agree with them--as he said, he doesn't agree with the amendment being offered by Senator Specter--but he has the right to offer it, and he would respect that. So if we are going to do this, it is important for the leaders--and I am not a leader here, but the leaders need to sit down and see how the place operates and how it is going to function.

Mr. DODD. Of course not.

Mr. DODD. We hope so. And let me just say for the record, as someone who is familiar with the Isakson proposal, I think it has very meritorious qualities to it, and I think that might enjoy some very strong support. Mr. President, I again yield the floor.

Mr. DODD

Mr. DODD. Mr. President, let me, first of all, thank my colleague from Wisconsin, Senator Feingold, for his cosponsorship of this amendment, along with a number of other Members of this body who have joined us in this effort. I thank the chairman and ranking member. My colleagues should know, initially the administration sought to grant immunity to all participants in this telecommunications surveillance program. The chairman and ranking member disagreed with that. However, they have provided retroactive immunity to some 16 phone companies. One of the phone companies refused, of course, to comply with this 5-year surveillance program that was granted without a warrant, without a court order. I believe it is dangerous in setting a precedent for us today to grant that retroactive immunity without insisting the courts--as they are designed to do--should determine the legality or illegality of this program. There are four committees of the U.S. Congress that have considered this issue. Three of the committees have rejected retroactive immunity. Only the Intelligence Committee of this body has decided to include it. I believe we ought to strike that provision and allow the court to do its job. That is what this amendment does, and I urge its adoption.

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

Mr. DODD

Mr. DODD. Mr. President, it is clear now that this body is going to approve retroactive immunity for the telecom industry, which may have helped the President to illegally spy on millions of Americans. I have spoken on this issue now for I think in excess of 20 hours, going back 2\1/2\ months ago when this issue first came to the floor in December. Just to recall the history of the last couple of months briefly, if I may: Two committees of the Senate, appropriately, had jurisdiction over this matter--the Intelligence Committee and the Judiciary Committee. In fact, the House of Representatives similarly had two committees with jurisdiction over this matter, the matter being the amendments to the Foreign Intelligence Surveillance Act. I have talked at length about the history of that act and commended our previous colleagues who served in this body for having crafted a rather ingenious piece of legislation that architecturally created the balance between security and liberty in the wake of the Watergate scandal in the mid-1970s. Democrats and Republicans came together and said: How can we guarantee that we can gather information to keep our Nation safe and secure from those who would do us harm and simultaneously protect the more than two centuries of liberties and rights that Americans have come to associate with our Constitution--the rule of law? This was not an easy matter, striking that balance, that tension which has existed for more than 220 years in our country, and I would be the first to admit that. So I have great admiration for those who struggled with it. In 1978, the FISA--the Foreign Intelligence Surveillance Act--Court was established, a secret court, the members of which are appointed by the Chief Justice of the U.S. Supreme Court. The members of that court are sitting Federal judges across the land. No one can ever know who these judges are. They are anonymous in that sense, and they are called upon at a moment's notice to determine whether probable cause exists for a warrant to be issued to allow our Government to require institutions, public or private, to provide information that could affect the safety and security of our country. That has been the history. Since 1978, time and again the Congress of the United States has amended the Foreign Intelligence Surveillance Act. Usually, it was amended in order to keep pace with the ability of those who would do us harm to utilize new technologies, new sources of information that could prove to be dangerous for our country; but simultaneously, legislation was upgraded so that the new means of gathering information, of determining who would do us harm, were also improving. In almost every instance, the amendments and the changes to the Foreign Intelligence Surveillance Act were adopted unanimously by members of both political parties. That brings us, of course, to this year, with the amendments being offered to this Foreign Intelligence Surveillance Act. Events occurred either prior to 9/11 or shortly thereafter which have caused the most significant debate yet on FISA. There are those who have argued that, in fact, the surveillance activity that is the subject of the retroactive immunity actually began prior to the attacks of 9/11. The bulk of the evidence seems to point to the fact that this surveillance began shortly thereafter. I would not be standing here, as I have said before, had this been a momentary lapse of judgment, considering the emotions of the attacks here on our country. I could understand why a President, why a telecom industry, in the wake of 9/11, would have responded to a request to gather information quickly to determine not only who did us harm but what additional dangers they posed to us. I would not be standing here if this had been an administration that had not engaged in a pattern of behavior over the years that suggested they had less than a high regard for the rule of law. But as we have now learned, this was not a matter of a week or a month or a year. This warrantless invasion of our privacy went on for 5 long years, without any rule of law behind it except the word of an American President and apparently the sanction of the Attorney General of the United States. FISA specifically said in 1978 that you must have a warrant to do this. We even changed the law, as you know, Mr. President, to say that you could even get the warrant after the fact if the emergency was such that you didn't have the opportunity to get the warrant but went after the fact, immediately thereafter. I would point out, Mr. President, as I did in some detail last evening for almost 3 hours on this floor, that the President's warrantless wiretapping program was not a selective or focused surveillance merely on those who were outside the country or those who were suspected or might be involved in threatening activities. This decision to gather information included literally every phone call, every fax, every e-mail, every image that went through 16 phone companies of our country, using what they call splitters to literally vacuum up everything that came in. If the allegations are true, it was one of the single largest invasions of privacy in the history of our country, all done without a warrant and without a court order. We discovered this because of a whistleblower and a report in the media that revealed the program. Otherwise, I suspect it would be going on as I speak, without any interruption whatsoever. In fact, the only interruption that occurred, I might point out--because the argument has been made that these companies were acting out of patriotism--came, according to some reports when the Federal Government stopped paying the phone companies for collecting it. I would also point out that not every phone company complied. I know the argument has been made: Look, everyone did it. It is a common argument, one we made to our parents, usually: Everyone was doing it. We all remember the answer we received from our parents. Well, the argument here is: Almost everyone was doing it. Quest decided not to. When the request was made of them to gather information without a warrant, they said: Give us a court order, and we will comply. A court order was never forthcoming, of course, and they never participated. So this December, we arrived at this debate about whether to grant the telecoms retroactive immunity. Three other committees had examined this issue, and all three of the committees, in the House and in this body, had determined that retroactive immunity was not warranted. Only one committee decided it was, but that committee has prevailed in the last several days, weeks, and months in this debate, and as such we are now confronted with cloture being invoked, cutting off debate here about the subject matter. And given the votes today, in all likelihood this body is not going to change its mind on this issue. Our only hope, those of us who feel strongly about this, is that the other body, the House of Representatives, which has taken a very different point of view, will be able to prevail in the conference between these two bills, and deny retroactive immunity. Let me point out quickly that denying retroactive immunity does not mean the phone companies will necessarily be found guilty of doing something wrong. All it means is that the coequal branch of Government, the judicial branch, will get a chance to look at whether what they did was legal. I have my own opinions about this, but my opinions should not prevail, nor should the opinions of 51 Members of this body. We are not the judicial branch, we are the legislative branch. The Founders of this great Republic of ours created three coequal branches of Government, and the judicial branch was designed and created to check the actions of the executive and legislative branches and determine whether things we did were constitutional--legal--or not. That is why they exist. So the debate about whether what the companies did or did not do is legal is not a matter for this body to determine, any more than it is for the executive branch. It is the judicial branch that should make that determination. Yet, by the action we took earlier today, we are now going to close the door on determining whether the action taken by the phone companies was legal. Sweep it under the carpet, close the door, and we will set the precedent for some future Congress, which will point to this debate and its conclusion and decide that the Congress of the United States found that the FISA Court was not needed or, that in fact the President could collect whatever data and information he wanted--maybe medical records, maybe financial records, maybe personal histories of families. I feel passionately about this issue. This is the first time in my quarter of a century service here that I have engaged in what might be called some ``extended debate''--that is how deeply I care about this issue. Nothing is more important, in my view, than the rule of law and the Constitution. No threat is so urgent that we should be willing to abandon the rule of law. But that is exactly what we have done. And it is a false and phony argument to claim that failing to do so would jeopardize our security. There is a long history of the judicial branch of Government in this country dealing with sensitive national security matters in camera, without revealing state secrets. The suggestion that we cannot possibly let the courts look at the use of warrantless wiretapping is so false on its face it is hardly worthy of an argument to the contrary. In fact, Judge Walker, a Republican appointee to the Federal bench, I might point out, has ridiculed the argument that these matters could not go before the judicial branch for review. There is no longer a debate about whether the wiretapping program is in the public--it is. And the means and technology used to do it have publicly been discussed and debated. This decision deprives us of the opportunity to determine exactly what happened. I would further point out that but for the insistence of the chairman of this committee and the ranking member, and I suspect others, the administration would have succeeded in immunizing everyone involved with this, everyone within the executive branch, the White House, the Justice Department. The chairman and the ranking member said that was going too far. But that request is instructive. What do we learn from it? Why did the administration demand of the Intelligence Committee that everyone associated with this matter be immunized against any further legal action? What was the motive behind it? Doesn't that suggest that something else must be going on? That is where we are in all of this. Again, I apologize to my colleagues and others for taking so much time to talk about this. But as I mentioned last evening, I grew up in a family with a father who was deeply involved in the rule of law. He was a prosecutor at the Nuremberg trials in 1945 and 1946, a rather unique moment in American history, where because of an American President, because of a Secretary of War, because of a Supreme Court Justice and a handful of others, America did not yield to the vengeance, even for those enemies we hated the most: Nazis who had incinerated 6 million Jews and 5 million others targeted for their politics, religion, and otherwise. Why would you possibly give that crowd a trial? A handful of Americans, Republicans and Democrats, got together and said: America is different. We believe in the rule of law in the United States. And we believe the rule of law is something that does not necessarily belong to one Nation or sovereignty; it belongs to all people, reaching back to our own founding documents that tell us that the rule of law, not the rule of man, ought to prevail. So the United States, along with our very reluctant allies, created the Nuremberg trials, which established the moral high ground for the United States in so many ways. As a result, 21 defendants in the first trial got a lawyer and got to present evidence and defend themselves-- because we followed the rule of law. It was the moral high ground and the basis for so much else that was created in the post World War II period: The international courts, the U.N. system, the NATO system, the Marshall Plan. All these institutions sprang from that what we helped create in the wake of World War II and the Nuremberg trials. So I grew up around a dining room table where the rule of law was talked about all the time. I was taught that our Constitution did not belong to a political party, it did not belong to politicians or candidates. And I remember that great scene in the movie ``A Man For All Seasons,'' where Thomas More is asked if he would not be willing to cut down all the laws in England to get his hands on the devil. And More responds, and I am paraphrasing his quote: When I have cut down every law in England to get to the devil and the devil comes after me, what laws will stand there to protect me? So while some may feel comfort that they are being protected by this decision we have made, they should remind themselves the worm does turn, and someday they may find themselves on the opposite side of this question. So this debate should not be framed as the issue of the hour; rather, it is about the principle behind it, and that is the rule of law. The power of courts to decide the legality and illegality of actions is so deeply imbedded in our Constitution, so deeply imbedded in the fabric of how we conduct ourselves, that it ought not to be the subject of a partisan discussion and debate. That is why I have fought to keep this day from coming with everything I had in me. I have not fought alone. Many average Americans have given me strength for this fight, strength that comes from the passion and eloquence of citizens who do not have to be involved, but choose to be involved. I thank them for it. But today when I speak in this body against this immunity and for the rule of law, I am speaking for a minority. And respecting the rule of law anywhere means respecting it everywhere, even when it means we do not win. The rule of law says we, the minority, cannot stand forever; and having made our case with all the fire in us, we stand down and wait for a different day and a different set of circumstances. I will say this, though. I have seen some dark days in this Chamber; in my mind, one of the worst was September 28, 2007. That was the day the Senate voted to strip habeas corpus and tolerate torture. Today, February 12, 2008, is nearly as dark: the day the Senate voted to ensure secrecy and to exempt corporations from the rule of law. Frankly, I have seen a lot of darkness in recent years, as one by one our dearest traditions of constitutional governance have been attacked. At each new attack, millions of Americans have stood up in outrage; but millions more have answered with patience. One might fault them for that, but I do not. More than two centuries of democratic tradition have nurtured that patience; it speaks well of our Democratic faith that so many take the rule of law in America as a given. If millions have not yet noticed the rule of law falling, that is because it has so far to fall. But fall it will, if we remove our support for it. The law in America is not a gift or an inheritance; it is the active work of every generation to preserve and protect it. As America's patience wears thinner and thinner, and as more and more citizens take up that active work, our minority will--I have faith that it will--make itself a majority. But today was not that day. And so the Senate has signed its name to this immunity, this silencing of our courts, this officially sanctioned secrecy, without a majority of us evening laying eyes on the secret papers that are supposed to prove the President's case. Retroactive immunity is a disgrace in itself. And in the last months I believe we have proved that beyond a reasonable doubt. But it is even more disgraceful in all it represents. It is the mindset that the Church Committee summed up so eloquently three decades ago. The view that the traditional American principles of justice and fair play have no place in our struggle against the enemies of freedom. That view created the Nixonian secrecy of the 1970s, and the Church Committee wrote those words, in part, as a rebuke to our predecessors in this Chamber who for years let secrecy and executive abuses slide. But today those words take on a new meaning. Today they rebuke us. They shame us for our lack of faith that we can, at the same time, keep our country safe and our Constitution whole. When the 21st century version of the Church Committee convenes to investigate the abuse of the past years, how will it judge us? What will it say about us when they look back on our actions? When it reads through the records of our debate--not if, but when--what will it find? When the President asked us to repudiate the Geneva Conventions and strip away the right of habeas corpus, how did we respond? When images of American troops tormenting detainees were broadcasted around the world, how did we protest? When stories of secret prisons and outsourced torture became impossible to deny, how did we resist? And on February 12, 2008, when we were asked to put corporations explicitly outside the law and accept at face value the argument that some are literally too rich to be sued, how did we vote? All of those questions are coming for us. All of them and more. And in the quiet of his or her own conscience, each Senator knows what the answers are. I fought so long against retroactive immunity because, in this huge fabric of lawlessness, it was the closest thread to grab. I believed if we grabbed hold and pulled, it would begin to unravel. That has not happened. But if we believe that each assault against the rule of law was an accident, that each was isolated, we are deluding ourselves. If the past is any guide, there will be another one. And hope, as they say, springs eternal. I hope we will stand up then. And perhaps we will have the chance to do so very soon. As I mentioned a few minutes ago, the House of Representatives has passed a version of this bill without retroactive immunity. It will be the job of the conference between the House of Representatives and the Senate to reconcile the two versions of this bill. And before I stand down, I wish to implore the members of that committee, in the strongest terms I can find, to strip retroactive immunity from this bill once and for all. Remember, this is about more than a few telephone calls, a few companies, a few lawsuits. If the supporters of retroactive immunity keep this small, they win. In truth, the issue we have debated for the last few months, the issue that will finally come to a head in this conference committee, is so much more. At stake is our latest answer to the defining question: The rule of law or the rule of men? That question never goes away. As long as there are free societies, generations of leaders will struggle mightily to answer it. Each generation must answer for itself; and just because our Founders answered it correctly does not mean they are bound by their choice. In that, as in all decisions, we are entirely free; the whole burden falls on us. But we can take counsel. We can listen to those who came before us, who made the right choice, even when our Nation's very survival was at risk. They knew that the rule of law was far more rooted in our character than any one man's lawlessness. I do not think that has changed at all. Secure in that faith, I will sit down now and end my part in this conversation. But when the question of the rule of law or the rule of men comes again, which it surely will, I will be proud to stand up once more. And if this bill comes back with retroactive immunity, I will speak against that travesty--the denial of the rule of law in favor of the rule of men. I yield the floor.

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

Mr. DODD

Mr. DODD. Mr. President, first, let me thank my good friend from Pennsylvania, whom I always enjoy listening to. I enjoyed particularly hearing his comments about President Musharraf and Benazir Bhutto, who I had the privilege and pleasure of knowing for some time over the last 20 years. As do all of us here, I care deeply about what happens in Pakistan, and I admire remarkable leadership. I was stricken by her loss and the tragic way in which she lost her life in her effort to bring democracy to her country. So I associate myself with the remarks of Senator Specter who was there, I know. In fact, I listened with great interest to his comments and thoughts at the time when he and Congressman Patrick Kennedy were there on a mission together. So I once again thank him. I know he talked about our arrival some 27 years ago, when the two of us arrived here, and it is true there were 16 Republicans and two Democrats. I always like to point out that there are two fine Republicans still here, Senator Grassley and Senator Specter, and 50 percent of the Democrats who were elected that year are still in this Chamber. So I remain of the two of us, Alan Dixon being the other Member. I look up and I see the Presiding Officer. Any time I get up to address this issue, the distinguished Senator from Rhode Island is the Presiding Officer. He has heard my thoughts on this issue now since December. I think it has been almost 20 hours I have spoken on the subject matter of the Foreign Intelligence Surveillance Act and the issue of retroactive immunity. I will be trying to convince my colleagues to vote against cloture tomorrow so we can force the committees to go back and adopt the Judiciary Committee approach rather than the one adopted by the Intelligence Committee which gives retroactive immunity to the telecom industry. I note as well that the House, the other body, in its consideration of this matter, agreed with the Judiciary Committee and did not include retroactive immunity in their Foreign Intelligence Surveillance Act amendments. The House reached the conclusion that the retroactive immunity was not warranted, that the courts should be given the opportunity to decide the legality or illegality of the telecom industry's decision to agree to the administration's request to allow the unfettered surveillance of millions of telephone calls, faxes, and e-mails. Senator Feingold of Wisconsin and I have offered an amendment to strike section 2 of the bill, which would then put the legislation roughly on parity with the House-passed legislation and deliver that to the President. The President has said: If you do that, I will veto the bill, which I regret deeply. The idea that you veto all of the other amendments dealing with foreign intelligence because you didn't provide retroactive immunity to a handful of telephone companies is rather breathtaking when you consider the vulnerability that can pose and the inability of us to collect the important surveillance, the intelligence we need to keep our country secure and safe. Mr. President, I am not normally accustomed to engaging in lengthy conversations about any subject. Certainly it is the privilege and right of every Senator to engage in extended debate on a subject about which they care passionately. I cannot think of another occasion in the last 20 years, 25 years, when I have engaged in extended debate on any subject matter. It doesn't suggest there haven't been moments when I thought it was warranted, and others certainly provided that opportunity or we resolved the matters prior to using that tool that has been available to every Member of this Chamber since the founding of our Republic. But I care deeply about this issue. It is not just a passing issue; it is not just one section of a bill. It goes far beyond the words or language of even the companies involved here. It goes to the very heart of who we are as a nation, as a people. Our willingness or ability to understand the value and importance of the rule of law is an issue that transcends any other issue we grapple with, the understanding of how important it is to protect and defend the rule of law, our Constitution, to guarantee the rights and liberties of every citizen of our country. Tonight, I will engage in a rather lengthy conversation about this issue, with my apologies to the staff and others who have to spend time listening to this conversation. But I want people to know how important this issue is. This is very important. It doesn't get any more important than this one as to whether millions of Americans' telephone conversations, e-mails, and faxes over the past 5 years were listened to, eavesdropping that would still be ongoing were it not for disclosed reports by journalists and a whistleblower that revealed this program. It would still be ongoing, without a court order and without a warrant. That is dangerous. The very rationale which gave birth to the FISA some three decades ago was specifically designed to deal with the very fact situation that causes me to rise and talk about this subject matter this evening. FISA intended to balance two legitimate issues--gathering information to keep us secure, while protecting the rights and liberties of every single American citizen against an unwarranted invasion of their privacy. It has never been easy to maintain that balance. It is never perfect, as I said earlier this afternoon, but it ought to be our common goal, regardless of party and ideology, to do our very best to strike that balance. That is what this issue is, and that is why it is so important. If we set the precedent by a vote tomorrow that keeps this provision in the bill, and it remains so in the conference with the House of Representatives, we will be setting a precedent which, I suspect, future administrations may point to under a different fact situation, at a different hour, at a different time, when they may decide it is not in their interest to go to a FISA Court. The next request by an administration to provide information may be medical or financial or highly personal information, and they will point to a time when the Senate was given the opportunity to insist that a series of telephone companies go to the courts of this country to determine whether they did the legal thing by turning over information, and the Senate said: No, we are going to grant retroactive immunity. We will never determine whether you had the right to do so, and implicitly it would sanction the activity by our refusal to strike the language granting the immunity. That is what is at stake in the vote tomorrow, if we are unable to defeat cloture. That is why I am determined to do everything I can to convince my colleagues of an alternative course. So I urge my colleagues, in the strongest terms that I can, to vote to strip the retroactive immunity from this bill and, if it is not stripped, to vote against cloture. Not only would this bill ratify a domestic spying regime that has already concentrated far too much unaccountable power in the President's hands, in its current form it places above the law the telecommunications companies that may have violated the privacy and trust of millions of American citizens. In December, I opposed retroactive immunity on the Senate floor for some 10 hours in this Chamber. In the weeks since then, I have continued to speak out against it. Unwarranted domestic spying didn't happen in a panic or short-term emergency--not for a week or a month or even a year. If it had, I might not be here this evening. But the spying went on, relentlessly, for more than five years. And if the press didn't expose it, I imagine it would still be happening today. I might not be here either if it had been the first offense of a new administration. Maybe not if it even had been the second or third, I might add. I am here this evening because after offense after offense after offense, my frustration has found its breaking point. I am here this evening because of a pattern of continual abuses against civil liberties and the rule of law. When faced with that pattern, we should not act in the interest of the Democratic Party or the Republican Party. We should act in the interest of the Constitution of the United States because we are, above anything else, its temporary custodians. If these abuses had been committed by a President of my own party, I would have opposed them just as passionately as I do this evening. I am here tonight because of the latest link in that long chain of abuse. It is alleged that giant telecom corporations worked with our Government to compile America's private domestic communications records into a database of enormous scale and scope. Secretly and without a warrant, these corporations are alleged to have spied on their own American customers. Here is only one of the most egregious examples: According to the Electronic Frontier Foundation: Clear, firsthand whistleblower documentary evidence [states] . . . that for year on end, every e-mail, every text message, and every phone call carried over the massive fiber optic links of sixteen separate companies routed through AT&T's Internet hub in San Francisco--hundreds of millions of private, domestic communications--have been . . . copied in their entirety by AT&T and knowingly diverted wholesale by means of multiple ``splitters'' into a secret room controlled exclusively by the NSA. The phone calls of millions of Americans diverted into a secret room controlled by the NSA. That allegation still needs to be proven in a court of law. But before that happens, there is an even simpler question: What do you see in it? If you only see cables and computers there, the whole thing seems almost harmless. Certainly nothing to get worked up about--a routine security sweep and a routine piece of legislation authorizing it. If that is what you see in the NSA's secret room, I imagine you will vote to extend that immunity. If you see a vast dragnet for millions of Americans' private conversations, conducted by a Government agency without a warrant, then I believe you will recognize what is at stake. You will see that what is at stake is the sanctity of the law and the sanctity of our privacy as American citizens. You will then oppose this retroactive immunity. Maybe that sounds overdramatic to some of my colleagues. They will ask: What does it matter, at the end of the day, if a few corporations are sued? They will say: This is a small issue, an isolated case. The law is still safe and sound. I find that view profoundly wrong. But I will give them this: As long as they keep this small, they win. As long as they keep this case isolated and technical, they win. As long as it is about a few lawsuits, and nothing more, they win. They are counting on the American people to see nothing bigger than that. I am counting on them to see more and to fear less. So much more is at stake than a few phone calls, a few companies, and a few lawsuits. Mr. President, equal justice is at stake--justice that makes no exceptions. Openness is at stake--an open debate on security and liberty, and an end to warrantless, groundless spying. Retroactive immunity stands against those principles. It doesn't say: I trust the American people; I trust the courts and judges and juries to come to just decisions. Retroactive immunity says: Trust me. There are classified documents, we are told, that prove the case for retroactive immunity beyond a shadow of a doubt. But we are not allowed to see them. I have served in this body for more than a quarter century, and I am not allowed to see these documents at all. I am told to trust somebody, believe people when they stand up and tell you exactly what is here. Neither are the majority of my colleagues allowed to see them. We are left entirely in the dark to draw the conclusion that there is nothing to be concerned about. The courts don't need to look at this. Obviously, I cannot speak for my colleagues, but I would never take ``trust me'' for an answer--not even in the best of times. ``Trust me.'' It is the offer to hide ourselves in the waiting arms of the rule of men. I cannot put it better than this: ``Trust me'' government is government that asks that we concentrate our hopes and dreams on one man; that we trust him to do what's best for us. My view of government places trust not in one person or one party, but in those values that transcend persons and parties. Those words were spoken by Ronald Reagan in 1980, the former President of the United States. Those words are every bit as true today, even if some have chosen to forget them. But times of threat and fear blur our view of transcendent values; and those who would exploit those times urge us to save our skins at any cost. The rule of law has rarely been so fragile. It has really seemed less compelling. What, after all, does the law give us? It has no parades, no slogans; it lives in books and precedents. It cannot entertain us or captivate us or soothe our deepest fears. When set against everything the rule of men has to offer, the rule of law is mute. That is the precise advantage seized upon, in all times, by the law's enemies. It is a universal truth that the loss of liberty at home is to be charged to the provisions against danger . . . from abroad. Those are the words of James Madison, and they are worthy of repetition. It is a universal truth that the loss of liberty at home is to be charged to the provisions against danger . . . from abroad. James Madison, the father of the Constitution, made that prediction more than two centuries ago. With the passage of this bill, his words would be one step closer to coming true. So it has never been more essential that we lend our voices to the law and speak on its behalf. This is our defining question, the question that confronts every generation of Americans since the founding of our Republic: the rule of law, or the rule of men? How many times must we get the wrong answer? To those who say this is just about a few telecoms, I answer that this is about contempt for the rule of law, large and small. This is about the Justice Department turning our Nation's highest law enforcement officers into patronage plums, and turning the impartial work of indictments and trials into the machinations of politics. This is about Alberto Gonzales coming before Congress to give us testimony that was, at best, wrong, and, at worst, perjury. This is about Congress handing the President the power to designate any individual he wants an ``unlawful enemy combatant,'' hold that individual indefinitely, and take away his or her rights to habeas corpus--the 700-year-old right to challenge your detention. If you think the Military Commissions Act struck at the heart of the Constitution, well, it struck at the Magna Carta while it was at it. If you think this only threatens a few of us, you should understand that the writ of habeas corpus belongs to all of us. It allows anyone to challenge their detention. Rolling back habeas corpus endangers us all. Without a day in court, how can you prove that you are entitled to a trial? How can you prove that you are innocent? In fact, without a day in court, how can you let anybody know what you have been detained for at all? The Military Commission Act also gave President Bush the power some say he wanted most of all: the power to get information out of suspected terrorists--by almost any means. The power to use evidence potentially gained from torture. This is about torture--officially sanctioned torture. As a result of decisions made at the highest levels of our Government, America is making itself known to the world with stories like this one: A prisoner at Guantanamo--to take one example out of hundreds--was deprived of sleep for over 55 days, a month and 3 weeks. Some nights he was doused with water or blasted with air conditioning. After week after week of this delirious, shivering wakefulness, on the verge of death from hypothermia, doctors strapped him to a chair--doctors, healers who took the Hippocratic oath to ``do no harm''--pumped him full of three bags of medical saline, brought him back from death, and sent him back to his interrogators. To the generation coming of age around the world in this decade, that is America. Not Normandy, not the Marshall Plan, not Nuremberg. Guantanamo. This is about the CIA destroying tapes containing the evidence of harsh interrogations--about the administration covering its tracks in a way more suited to a banana republic than to the home of freedom. This is about waterboarding, a technique invented by the Spanish Inquisition, perfected by the Khmer Rouge, and in between, banned-- originally banned for excessive cruelty--by the Gestapo! Waterboarding's not torture? Listen to the words of Malcolm Nance, a 26-year expert in intelligence and counterterrorism, a combat veteran, and former Chief of Training at the U.S. Navy Survival, Evasion, Resistance and Escape School. To those who say that this is just about a few telecoms, I answer: This is about contempt for the law, large and small. This is about the Justice Department turning our Nation's highest law enforcement offices into patronage plums, and turning the impartial work of indictments and trials into the machinations of politics. This is about Alberto Gonzales coming before Congress to give us testimony that was at best, wrong--and at worst, perjury. This is about Congress handing the President the power to designate any individual he wants an ``unlawful enemy combatant,'' hold him indefinitely, and take away his right to habeas corpus--the 700-year- old right to challenge your detention. If you think that the Military Commissions Act struck at the heart of the Constitution, you would be understating things--it struck at the Magna Carta while it was at it. And if you think that this only threatens a few of us, you should understand that the writ of habeas corpus belongs to all of us--it allows anyone to challenge their detention. Rolling back habeas rights endangers us all: Without a day in court, how can you prove that you are entitled to a trial? How can you prove that you are innocent? In fact, without a day in court, how can you let anyone know that you have been detained at all? While training American soldiers to resist interrogation, he writes: I have personally led, witnessed and supervised waterboarding of hundreds of people. . . . Unless you have been strapped down to the board, have endured the agonizing feeling of the water overpowering your gag reflex, and then feel your throat open and allow pint after pint of water to involuntarily fill your lungs, you will not know the meaning of the word. . . . It does not simulate drowning, as the lungs are actually filling with water. The victim is drowning. How much the victim is to drown depends on the desired result . . . and the obstinacy of the subject. Waterboarding is slow motion suffocation . . . usually the person goes into hysterics on the board. . . . When done right it is controlled death. In spite of all that, last week the White House declared that waterboarding is not torture, that waterboarding is legal, and that, if it chooses, America will waterboard again. This is about Michael Mukasey coming before the Senate and defending the President's power to openly break the law. When he came to the Senate before his confirmation, Mr. Mukasey was asked bluntly and plainly: Is waterboarding constitutional? Mr. Mukasey replied with a head-scratching tautology: If waterboarding is torture, torture is not constitutional. Surely we can expect a little more insight from someone so famously well versed in national security law. But Mr. Mukasey pressed on with the obstinacy of a witness pleading the Fifth: If it's torture. . . . If it amounts to torture, it is not constitutional. And that is the best this noted jurist, this legal scholar, this longtime judge had to offer on the defining moral issue of this Presidency: claims of ignorance. Word games. And again last month, he refused categorically to denounce waterboarding. In fact, Mr. Mukasey was asked the easiest question we have in a democracy: Can the President openly break the law? Can he--as we know he has done already--order warrantless wiretapping, ignore the will of Congress, and then hide behind nebulous powers he claims to find in the Constitution? Mr. Mukasey's response: The President has ``the authority to defend the country.'' And in one swoop, the Attorney General conceded to the President nearly unlimited power, as long as he finds a lawyer willing to stuff his actions into the boundless rubric of ``defending the country.'' Unlimited power to defend the country, to protect us as one man sees fit, even if that means listening to our phone calls, even if that means holding some of us indefinitely. This is about extraordinary rendition--outsourced torture. It is about men this administration prefer we did not know exist. But we do know. One was a Syrian immigrant raising his family in Canada as a citizen. He wrote computer code for a company called Math Works. He was planning to start his own tech business. On a trip through New York's JFK Airport, he was arrested by U.S. Federal agents. They shackled him and bundled him into a private CIA plane which flew him across the Atlantic Ocean to Syria. This man spent the next 10 months and 10 days in a Syrian prison. His cell was 3 feet wide, the size of a grave. Some 300 days passed alone in that cell, with a bowl for his toilet and another bowl for his water, and the door only opened so he could go wash himself once a week, though it may have been more or less because the cell was dark and he lost track of time. The door only opened for one reason: for interrogators who asked him, again and again, about al-Qaida. Here is how it was described: The interrogator said, ``Do you know what this is?'' I said, ``Yes, it's a cable,'' and he told me, ``Open your right hand.'' I opened my right hand, and he hit me like crazy. It was so painful, and of course I started crying, and then he told me to open my left hand, and I opened it, and he missed, then hit my wrist. And then he asked me questions. If he does not think you are telling the truth, then he hits again. The jail and the torturers were Syrian, but America sent this man there with full knowledge of what would happen to him because it was part of a longstanding secret program of ``extraordinary rendition.'' America was convinced that he was a terrorist and wanted the truth beaten out of him. No charges were ever filed against him. His adopted nation's government--Canada, one of our strongest NATO allies--cleared him of all wrongdoing after a yearlong investigation and awarded him more than $10 million in government compensation for his immense pain and suffering--but not before he was tortured for 10 months in a cell the size of a grave. Our own Government, I note, has refused to even acknowledge that his case exists. It is about a German citizen living in the city of Ulm with his wife and four children. On a bus trip through Eastern Europe, he was pulled off at a border crossing by armed guards and held for 3 weeks in a hotel room where he was beaten regularly. At the end of 3 weeks, he was drugged and shipped on a cargo plane to Kabul, Afghanistan. For 5 months he was held in the Salt Pit, a secret American prison staffed by Afghan guards. All he had to drink was stagnant water from a filthy bottle. Again and again, masked men interrogated him about al- Qaida. And finally, he says, they raped him. He was released in May of 2004. Scientific testing confirmed his story of malnourishment, and the Chancellor of Germany publicly acknowledged that he was wrongfully held. What was his crime? Having the same name as a suspected terrorist. Again, our own Government has refused to even acknowledge this case exists. There are not enough words in the world to cover the facts. If you would like to define torture out of existence, be my guest. If you would rather use a Washington euphemism--``tough questioning,'' ``enhanced interrogation''--feel free. Feel free to talk about ``fraternity hazing'' such as Rush Limbaugh did, or to use a favorite term of Vice President Cheney, ``a dunk in the water,'' as he described waterboarding. Call it whatever you like. And when you are through with all of your evasions, the facts will still be waiting for you--the fact of waterboarding, ``controlled death,'' the fact of ``outsourced torture,'' the fact of secret prisons, the fact of month-long sleep deprivation, the fact of the President's personal power to hold whomever he likes for as long as he would like. Have I gone wildly off the topic? Have I brought up a dozen unrelated issues? I don't think, Mr. President--I don't think I have at all. We are deceiving our ourselves when we talk about the U.S. attorneys issue, the habeas issue, the torture issue, the rendition issue, the secrecy issue. As if each one were an isolated case! As if each one were an accident! When we speak of them as isolated, we are keeping our politics cripplingly small, and as long as we keep them small, the rule of men is winning. There is only one issue here--only one. It is the law issue, the rule of law. Does the President serve the law or does the law serve the President? Each insult to our Constitution comes from the same source. Each springs from the same mindset. And if we attack this contempt for the law at any point, we will wound it at all points. That is why I am here this evening. Retroactive immunity is on the table today, but also at issue is the entire ideology that justifies it, the same ideology behind torture and executive lawlessness. Immunity is a disgrace in itself, but it is far worse in what it represents. It tells us that some believe in the courts only so long as the verdict goes their way. It puts secrecy above sunshine and fiat above the law. Did the telecoms break the law? That I don't know. Pass immunity and, of course, we will never know. A handful of favored corporations will remain unchallenged. Their arguments will never be heard in a court of law. The truth behind this unprecedented domestic spying will never see the light of day. ``Law'' is a word that we barely hear from the supporters of immunity. They offer neither a deliberation about America's difficult choices in an age of terrorism nor a shared attempt to set for our times the excruciating balance between security and liberty. They merely promise a false debate on a false choice: security or liberty, but never both. I think differently, and I hope others do as well. I think that America's founding truth is unambiguous: security and liberty, one and inseparable, and never one without the other. Secure in that truth, I offer a challenge to immunity supporters. You want to put a handful of corporations above the law. Could you please explain how your immunity makes any one of us any safer at all? The truth is that a working balance between security and liberty has already been struck. In fact, it has been settled for decades. For three decades, in fact, FISA, the Foreign Intelligence Surveillance Act, has prevented executive lawbreaking and protected Americans, and that balance stands today. In the wake of the Watergate scandal, the Senate convened the Church Committee, a panel of distinguished members determined to investigate executive abuses of power. Unsurprisingly, they found that when Congress and the courts substitute ``trust me'' for real oversight, massive lawbreaking can result. They found evidence of U.S. Army spying on the civilian population, Federal dossiers on citizens' political activities, a CIA and FBI program that had opened hundreds of thousands of Americans' letters without warning or warrant. In sum, Americans had sustained a severe blow to their fourth amendment rights ``to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. . . .'' But at the same time, the Senators of the Church Committee understood that surveillance needed to go forward to protect the American people. Surveillance itself was not the problem. Unchecked, unregulated, unwarranted surveillance was. What surveillance needed, in a word, was legitimacy. And in America, as the Founders understood, power becomes legitimate when it is shared, when Congress and the courts check that attitude which so often crops up in the executive branch--``if the President does it, it's not illegal.'' The Church Committee's final report, ``Intelligence Activities and the Rights of Americans,'' put the case powerfully indeed. Allow me to quote from that final report: The critical question before the Committee was to determine how the fundamental liberties of the people can be maintained in the course of the Government's effort to protect their security. The delicate balance between these basic goals of our system of government is often difficult to strike, but it can, and must, be achieved. We reject the view that the traditional American principles of justice and fair play have no place in our struggle against the enemies of freedom. Moreover, our investigation has established that the targets of intelligence activity have ranged far beyond persons who could properly be characterized as enemies of freedom. . . . We have seen segments of our Government, in their attitudes and action, adopt tactics unworthy of a democracy, and occasionally reminiscent of the tactics of totalitarian regimes. We have seen a consistent pattern in which programs initiated with limited goals, such as preventing criminal violence or identifying foreign spies, were expanded to what witnesses characterized as ``vacuum cleaners,'' sweeping in information about lawful activities of American citizens. The Senators concluded: Unless new and tighter controls are established by legislation, domestic intelligence activities threaten to undermine our democratic society and fundamentally alter its nature. What a strange echo, what an incredibly strange echo, we hear in those words. The words I just read could have been written yesterday. Three decades ago our predecessors in this Chamber understood that when domestic spying goes too far, it threatens to kill just what it promises to protect: an America secure in its liberty. That lesson was crystal clear more than 30 years ago. Why is it so cloudy tonight? Why is it so cloudy on the eve of an important vote? And before we entertain the argument that ``everything has changed'' since those words were written, remember: The men who wrote them had witnessed World War and Cold War. They had seen the Nazi and Soviet threats and were living every day under the cloud of a nuclear holocaust. Mr. President, I ask this: Who will chair the commission investigating the secrets of warrantless spying years from today? Will it be a young Senator sitting in this body today? Will it be someone not yet elected? What will that Senator say when he or she comes to our actions, reads in the records of 2008 how we let outrage after outrage after outrage slide with nothing more than a promise to stop the next one? I imagine that Senator will ask of us: Why didn't they do anything? Why didn't they fight back? Why didn't they stand up? Why didn't they vote down retroactive immunity? What were they thinking? What more do you need to know? How many instances of abuse do you have to learn about? When do you stop? When do you say enough is enough? In February of 2008, when no one could doubt any more what the administration was doing, why did they sit on their hands? Why did they sit on their hands? Why did they pass by as if nothing had ever happened and grant retroactive immunity? Since the time of the Church Commission the threats facing our Nation have multiplied and grown in complexity, but the lesson has been immutable: Warrantless spying threatens to undermine our democratic society, unless legislation brings it under control. In other words, the power to invade privacy must be used sparingly, guarded jealously, and shared equally between the branches of Government. Or the case can be made pragmatically, as my friend Harold Koh, dean of Yale Law School, recently argued: The engagement of the three branches tends to yield not just more thoughtful law, but a more broadly supported public policy. Three decades ago, Congress embodied that solution in the Foreign Intelligence Surveillance Act, or FISA. FISA confirmed the President's power to conduct surveillance of international conversations involving anyone in the United States, provided--provided--that the Federal FISA Court issued a warrant ensuring that wiretapping was aimed at safeguarding our security and nothing else. The President's own Director of National Intelligence, Mike McConnell, explained the rationale in an interview this summer. The United States, he said: . . . did not want to allow the intelligence community to conduct electronic surveillance of Americans for foreign intelligence unless you had a warrant, so that was required. As originally written in 1978, and as amended many times since, FISA has accomplished its mission. It has been a valuable tool for conducting surveillance of terrorists and those who would harm our beloved Nation. And every time Presidents have come to Congress openly to ask for more leeway under FISA, Congress has worked with them. Congress has negotiated it together. Congress and Presidents have struck a balance that safeguards America while doing its utmost to protect Americans' privacy. This summer, Congress made a technical correction to FISA, enabling the President to wiretap without a warrant conversations between two foreign targets, even if those conversations are routed through American corporate computers. For other reasons, I felt this summer's legislation went too far, and I opposed it, but the point is Congress once again proved its willingness to work with the President on foreign intelligence surveillance. Isn't that enough? This past October and November, as we have seen, the Senate Intelligence and Judiciary Committees worked with the President to further refine FISA and ensure, in a true emergency, the FISA Court would do nothing to slow down intelligence gathering. Isn't that enough? As for the FISA court? Between 1978 and 2004, according to the Washington Post, the FISA Court approved 18,748 warrants and rejected 5. Let me repeat that. The FISA Court, according to the Washington Post, approved 18,748 warrants and rejected 5. The FISA Court has sided with the executive branch 99.9 percent of the time. Isn't that enough? Is anything lacking? Have we forgotten something? Isn't all this enough to keep us safe? We all know the answer we received. This complex, fine-tuned machinery, crafted over three decades by 3 branches of Government, 4 Presidents, and 12 Congresses was ignored. It was a system primed to bless nearly any eavesdropping a President could conceive, and spying still happened illegally. If the shock of that decision has yet to sink in, think of it this way: President Bush ignored not just a Federal court but a secret Federal court. Not just a secret Federal court but a secret Federal court prepared to sign off on his actions 99.9 percent of the time. A more compliant court has never been conceived. Still, that wasn't good enough. So I will ask the Senate candidly, and candidly it already knows the answer: Is this about security or about power? Why are some fighting so hard for retroactive immunity? The answer, I believe, is immunity means secrecy, and secrecy means power. It is no coincidence to me that the man who proclaimed ``If the President does it, it is not illegal''--Richard Nixon--was the same man who raised executive secrecy to an art form. The Senators of the Church Committee expressed succinctly the deep flaw in the Nixonian executive: ``Abuse thrives on secrecy.'' And in the exhaustive catalogue of their report, they proved it. In this push for immunity, secrecy is at its center. We find proof in immunity's original version: a proposal to protect not just telecoms but everyone involved in the wiretapping program. In their original proposal, that is what they wanted, to immunize themselves and absolutely everyone involved in this program. Not just the companies but everyone from the executive branch on down. They wanted to immunize every single human being. Think about it. It speaks to their fear and perhaps their guilt-- their guilt that they had broken the law and their fear in the years to come they would be found liable or convicted. They knew better than anyone else what they had done, and they must have had good reason to be afraid. Thankfully, immunity for the President is not part of the bill before us, and on previous occasions I have commended Senator Rockefeller and Senator Bond and the committee members for not agreeing to the administration's request for granting immunity for every single person. But remember, they made the request. That is what they wanted. While it is not in the bill, it ought to be instructive. If anybody wonders what this is all about, when you go back and remember that this administration requested of this committee that every single human being involved in the surveillance program be immunized and protected by the act of Congress, that is instructive. That is enlightening as to what the true intent of this administration has been when it comes to this program. As I said: Thankfully, immunity for the executive branch is not part of the bill before us, but the original proposal tells us something very important. This is, and always has been, a self-preservation bill. Otherwise, why not have a trial and get it over with? If the proponents of retroactive immunity are right, the corporations would win in a walk. After all, in the official telling, the telecom industry was ordered to help the President spy without a warrant and they patriotically complied. We have even heard on this floor the comparison between the telecom corporations to the men and women laying their lives on the line in Iraq. But ignore that. Ignore for a moment the fact that in America we obey the laws, not the President's orders. Ignore that not even the President has the right to secure a bully into breaking the law. Ignore that the telecoms were not unanimous; one, Qwest, wanted to see the legal basis for the order, never received it, and so refused to comply. Ignore that a judge presiding over the case ruled: AT&T cannot seriously contend that a reasonable entity in its position could have believed that the alleged domestic dragnet was legal. Ignore all of that. If the order the telecoms received was legally binding, then they have an easy case to prove. The corporations only need to show a judge the authority and the assurances they were given and they will be in and out of court in less than 5 minutes. If the telecoms are as defensible as the President says, why doesn't the President let them defend themselves? If the case is so easy to make, why doesn't he let them make it? It can't be that he is afraid of leaks. Our Federal court system has dealt for decades with the most delicate national security matters, building up expertise and protecting classified information behind closed doors--ex parte, in camera. We can expect no less in these cases. No intelligence sources need be compromised. No state secrets need to be exposed. After litigation, at both the district court and circuit court level, no state secrets have been exposed. In fact, Federal District Court Judge Vaughn Walker, a Republican appointee, I might add, has already ruled the issue can go to trial without putting state secrets in jeopardy. He reasonably concluded that the existence of a terrorist surveillance program is hardly a secret at all, and I quote him. The government has already disclosed the general contours of the ``terrorist surveillance program,'' which requires the assistance of a telecommunications provider. As the state secrets privilege is invoked to stall these high-profile cases, it is useful to consider that privilege's history. In fact, it was tainted at its birth by a President of my own party, Harry Truman. In 1952, President Truman successfully invoked the new privilege to prevent public exposure of a report on a plane crash that killed three Air Force contractors. When the report was finally declassified some 50 years later, decades after anyone in the Truman administration was within its reach, it contained no secrets at all; only facts about repeated maintenance failures that would have seriously embarrassed some important people. And so the state secrets privilege began its career not to protect our Nation but to protect the powerful. In his opinion, Judge Walker argued that, even when it is reasonably grounded: the state secrets privilege still has its limits. While the court recognizes and respects the executive's constitutional duty to protect the Nation from threats, the court also takes seriously its constitutional duty to adjudicate the disputes that come before it. To defer to a blanket assertion of secrecy here would be to abdicate that duty, particularly because the very subject matter of this litigation has been so publicly aired. The compromise between liberty and security remains a difficult one. But dismissing this case at the outset would sacrifice liberty for no apparent enhancement of security. And that ought to be the epitaph for the last 6 years--sacrificing liberty for no apparent enhancement of security. Worse than selling our soul, we are giving it away for free. It is equally wrong to claim that failing to grant this retroactive immunity will make the telecoms less likely to cooperate with surveillance in the future. The truth is, that since the 1970s, the Foreign Intelligence Surveillance Act has compelled telecommunications companies to cooperate with surveillance, when it is warranted. What is more, it immunizes them. It has done that for 25 years. So cooperation in warranted wiretapping is not at stake today. Collusion in warrantless wiretapping is. The warrant makes all the difference in the world because it is precisely the court's blessing that brings Presidential power under the rule of law. In sum, we know that giving the telecoms their day in court, giving the American people their day in court, would not jeopardize an ounce of our security. And it could only expose one secret: The extent to which the rule of law has been trampled upon. That is the choice at stake this evening and tomorrow when we vote on this matter: Will the secrets of the last years remain closed in the dark or will they be open to the generations to come, to our successors in this Chamber, so they can prepare themselves to defend against future outrages of power and usurpations of law from future Presidents, of either party, as certainly they will come? As certainly they will come. Thirty years after the Church Committee, history repeated itself. Even though I probably thought in those days, this will never happen again. Well, here we are again. As certain as I am standing here this evening, at some future time, there will be an executive, a President, who will seek to compromise the very same principles. And just as we reached back 30 years ago during this debate to a hallowed time when another Senate, faced with similar challenges, reached entirely different conclusions than we are about to make, some future generation will reach back to ours and ask: What did they say? What did they do? How did they feel about this? What actions did they take? The idea that this body would grant retroactive immunity in the face of these challenges and deny the courts an opportunity to determine whether, at the mere request of a President, major companies, for years on end, can sweep up, vacuum up--to use the Church Committee's language--every telephone conversation, every fax, every e-mail of millions and millions of Americans, is a precedent I don't think we want as part of our heritage for coming generations. And believe me, they will look back to it. If those who come after us are to prevent it from occurring again, they need the full truth. Constitutional lawyer and author Glenn Greenwald expressed the high stakes this way: The Bush administration will be gone in 11 months. But--in the absence of some meaningful accountability--all of this will remain . . . If . . . these theories remain undisturbed and unchallenged, and . . . all of these crimes go uninvestigated and unpunished, that will have a profound impact on changing our national character, in further transforming the type of country we are. That is why we must not see these secrets go quietly into the good night. I am here this evening because the truth is no one's private property. It belongs to every one of us, and it demands to be heard. ``State secrets,'' ``patriotic duty'': Those, as weak as they are, are the arguments the telecoms' advocates use when they are feeling high-minded. When their thoughts turn baser, they make their arguments as amateur economists. Here is how Director of National Intelligence Mike McConnell put it. If you play out the suits at the value they're claimed, it would bankrupt these companies. So . . . we have to provide liability protection to these private sector entities. That is an incredible statement. It is amazing that a person in high Government would suggest that no matter how warranted this investigation may be, there is a higher calling, that we should not put these companies in any kind of financial jeopardy, that we have to provide liability protection to these private sector entities because it might bankrupt them. To begin with, it is a clear exaggeration. First and foremost, we are talking about some of the most successful companies in the United States, not only today but ever. Some of these companies have continued to earn record profits and sign up record numbers of subscribers at the same time as this very public litigation, totally undermining the argument, I might add, these lawsuits are doing the telecoms severe reputational damage. Remember, the discussion about these telecoms has now gone on for months. And yet in the public debate about whether the courts ought to be able to examine these issues, there are reports that these companies have been accumulating record profits. Companies that size could not be completely wiped out by anything but the most exorbitant and unlikely judgment. To assume that the telecoms would lose and that the judges would hand them down such back-breaking penalties is already to take several leaps. The point, after all, has never been to finally cripple our telecommunications industry. That is not the point here at all. In fact, some have said: Look, I will support you striking this immunity, provided you put a cap on damages these companies would suffer if in fact the plaintiffs prove to be correct. And I am more than happy to entertain that. I do not believe it is necessary, but if that is the argument, a damages cap would answer all of Mike McConnell's concerns, without even having to bring up immunity. I am prepared to agree to any kind of a cap you want--because the point to me is not the damages they pay, but the damage they have done. But to suggest somehow that there is a pricetag companies would have to pay which is more valuable than protecting people's privacy is a stunning, breathtaking comment from a high Government official, in my view. It is extremely troubling that our Director of National Intelligence even bothers to pronounce on ``liability protection for private sector entities.'' How did that even begin to be relevant to letting this case go forward? Since when do we throw entire lawsuits out because the defendant stood to lose too much? In plain English, here is what Admiral McConnell is arguing: Some corporations are too rich to be sued. Even bringing money into the equation puts wealth above justice, above due process. Rarely in public life in the years I have served here have I ever heard an argument as venal as that on a matter as serious as this one. It astounds me that some can speak in the same breath about national security and the bottom line. Approve immunity and Congress will state clearly: The richer you are, the more successful you are, the more lawless you are entitled to be. A suit against you is a danger to the Republic! And so, at the rock bottom of its justifications, the telecoms' advocates are essentially arguing that immunity can be bought. The truth is exactly, of course, the opposite. The larger the corporation, frankly, the greater the potential for abuse. Not that success should make a company suspect at all; companies grow large, and essential to our economy because they are excellent at what they do. I simply mean that size and wealth open the realm of possibilities for abuse far beyond the scope of the individual. After all, if everything alleged is true, we are talking about one of the most massive violations of privacy in American history. If reasonable search and seizure means opening a drug dealer's apartment, the telecoms' alleged actions would be the equivalent of strip- searching everyone in the building, ransacking their bedrooms, prying up all the floorboards. The scale of these cooperations opens unprecedented possibilities for abuse, possibilities far beyond the power of any one individual. If the allegation against the telecoms is true, it constitutes one of the most massive violations of privacy in American history. And it would be inconceivable without the size and resources of a corporate behemoth, the same size that makes Mike McConnell fear the corporations' day in court. That is the massive scale we are talking about, and that massive scale is precisely why no corporation must be above the law. On that scale, it is impossible to plead ignorance. As Judge Walker ruled: AT&T cannot seriously contend that a reasonable entity in its position could have believed that the alleged domestic dragnet was legal. Again, from a Republican appointee to the Federal bench. But the arguments of the President's allies sink even lower. Listen to the words of a House Republican leader spoken on Fox News. Candidly, they are shameful. I believe that [the telecoms] deserve immunity from lawsuits out there from typical trial lawyers trying to find a way to get into the pockets of American companies. Of course, some of the ``typical greedy trial lawyers'' bringing these suits work for a nonprofit. And the telecoms that some want to portray as pitiful little Davids actually employ hundreds of attorneys, retain the best corporate law firms, and spend multimillion dollar legal budgets. But if the facts actually matter to immunity supporters, we would not be here. For some, the prewritten narrative takes precedence far above the mere facts; and here, it is the perennial narrative of the greedy trial lawyers. With that, some can rest content. They conclude that we were never serious about the law, or about privacy, or about checks and balances; it was about the money all along. But we will not let them rest content. We are extremely serious. There can no longer be any doubt: One by one the arguments of the immunity supporters, of the telecoms' advocates, fail. I wish to spend a few minutes and detail these claims and their failures, if I may. The first argument from immunity supporters says: The President has the authority to decide whether or not telecoms should be granted immunity. That is the first argument. The President has that implicit authority. But the facts in this case belong in the courts. The judiciary should be allowed to determine whether the President has exceeded his powers by obtaining from the telecoms wholesale access to the domestic communications of millions of ordinary Americans. Whatever the arguments may be, let us assume for a second they are going to make this argument. Well, you can make an argument. Where is the place you make that argument? Here in the legislative body or in the courts? I think the simple answer is, if you have been to law school for a week, the courts. We are a government of three parts, coequal: executive, legislative, and judicial. The executive branch says: I have the right to do this. The Congress can debate and certainly discuss it. But only in the courts can we determine the constitutionality of that action. Neither this body nor the other that comprise the legislative branch are charged with the responsibility of determining constitutionality. When Congress passes a law, the courts decide whether it is constitutional. When the President acts, the courts decide whether it is constitutional. The executive branch does not decide whether we have acted constitutionally, and we do not decide whether the President has acted constitutionally. That is what the courts are for. This is basic 101 stuff. This is basic stuff. You go to the courts to determine this question. And yet if we pass retroactive immunity--gone. That is a great precedent. That is what future Congresses will look to, when deciding when some future President overreaches: What did the previous Congresses do? And you will hear the argument in this Chamber years hence: Well, back in 2008, when confronted with that question, the Senate said that, frankly, the courts had no business with that, in effect, sanctioning what had occurred. How else can you read this but as a sanction? If a majority of Senators here decides that retroactive immunity is warranted, what other conclusion can history draw from that, except we agreed with the President that he had the right to do what he did, and we will never know the legal answer to the question. We will deprive the courts of the opportunity to decide it. We are overstepping our bounds incredibly by doing this, and hence the reason for the first time in my more than a quarter century in this body I am engaging in extended debate, because this is that important. To allow a President, any President of any party, to mandate or require a public or private entity to invade the privacy of Americans to the extent that has occurred here, one of the most massive alleged violations of privacy in history, and not challenge it and have the courts determine the legality or illegality of it, is an incredible precedent of historic proportions. It is not a small vote tomorrow. It is not a minor issue. It is about as important and as basic and as fundamental as anything we can ever do. Remember that the administration's original immunity proposal protected everyone. That is what they wanted. And executive immunity is not in this bill only because Jay Rockefeller and Kit Bond and the other members of the committee said No. But do not forget that is what they wanted. The administration came to the committee, and said: We want you to grant immunity to everyone--the executive branch, the telecoms, Justice Department, anyone else involved. The committee turned them down. But they asked for it. They asked for it. And that has to be a part of this debate and discussion. It is not irrelevant. It is not insignificant that the President of the United States asked the Intelligence Committee of the Senate to grant them and everyone else involved in this issue total immunity. What more do you need to know about what the motives are? How much more do you need to find out? The origin of immunity tells us a great deal about what is at stake here. It is self-preservation. I have my own opinions about warrantless surveillance, about what went on. But my opinions should not bear the weight of law. I think what these companies did was wrong. But I would be a fool to stand before you this evening and say I have the right to make that determination. But they should have not the right, either, to decide if it was legal. And that is what we are doing, in effect, by granting retroactive immunity. The second argument is that only foreign communications are targeted. Immunity supporters claim that only foreign communications were targeted, not Americans' domestic calls. But the fact is that clear firsthand evidence authenticated by these corporations in court contradicts that claim. ``Splitters'' at AT&T's Internet hub in San Francisco diverted into a secret room controlled by the NSA every e- mail, every text message, every phone call, foreign or domestic, carried over the massive fiber optic lines of 16 separate companies for over 5 years. Third, the Senate Intelligence Committee has preserved the role of the judiciary so there is ample oversight. But the fact is, the role would be empty. The Intelligence version of the bill before us would require the cases to be dismissed at a word from the Attorney General. The central legal questions raised by these cases would never be heard. The cases would never be fully closed. We would never really truly know what happened in these matters. So from a mere word of the Attorney General, that is the end of it. The fourth argument we have been hearing over the last number of months: A lack of immunity would compromise future cooperation between the U.S. Government and the telecom industry. But remember: Since the 1970s the Foreign Intelligence Surveillance Act has compelled telecoms to cooperate with warranted surveillance, and it has immunized them entirely. They don't have a choice, in effect. If you are compelled by a warrant to turn over the evidence, you don't have the choice of cooperating or not. The idea that the companies will say: We are just not going to share that information with you--you don't have that luxury. When a court order comes and says: Turn over the evidence, you have to turn it over. But, of course, the companies say: We don't want to because we will end up with a lot of lawsuits. To handle that very legitimate issue raised initially by AT&T, which was part of drafting FISA in 1978, we said: Don't worry about that. We will immunize you so there won't be any lawsuits that can be brought against you for doing what you are compelled to do by court order and a warrant. So the argument that somehow we won't be cooperative with you is just on its face factually wrong. You don't have the choice not to cooperate. What we do grant to you with that warrant is the fact that you cannot be sued, which is a legitimate request to make. That is not, of course, what happened here. The decision was made to turn over the evidence without a warrant, without a court order. I pointed out before that according to the Washington Post, since 1978 there have been over 18,700 court orders requested of the FISA Court, and only 5 have been rejected in 30 years; 18,700-plus cases before the court, that secret, private Federal court, and in 99.9 percent of the cases, they have been approved. Only five have been rejected. But when you are receiving a court order, when the warrant arrives and you are complying with it, as you are required, you also receive immunity from legal prosecution or from lawsuits. So the argument somehow that these companies won't be as cooperative, if it weren't so sad, would almost be amusing. This was a pay deal, by the way. It wasn't just patriotic duty. There was a cost involved. We were writing checks to the telecommunications industry. For whatever reason, when the Government stopped paying the checks to the telecom industry, these great patriotic institutions decided to stop the surveillance. Were they under a court order, had there been a warrant insisting upon their compliance, they wouldn't have the luxury of deciding not to comply. Only under this fact situation we are debating this evening would these corporations have any ability to all of a sudden stop complying with the law or complying with the request. So the irony of the argument is that the reverse is actually true. If you don't have a warrant and a court order, it is less likely you are apt to get that continual cooperation from these very companies that can provide the information we need to keep us more secure. The fifth argument immunity supporters make is that telecoms can't defend themselves because of the state secrets provision. I made this case a while ago, but let me repeat it. The fact is that Federal district court Judge Vaughn Walker has already ruled that the issue can go to trial without putting state secrets in jeopardy. Judge Walker pointed out that the existence of the warrantless surveillance program is hardly a secret at all. I will quote him again. He said: The Government has [already] disclosed the general contours of the ``terrorist surveillance program,'' which requires the assistance of a telecommunications provider. So the argument that they can't defend themselves without exposing state secrets has already been debunked. The sixth argument that is made by those who support immunity is that defendants are already shielded by common law principles. This is an interesting one. Immunity supporters claim that telecoms are protected by common law principles, but the fact is that common law immunities do not trump specific legal duties imposed by statute such as the specific duties Congress has long imposed on telecoms to protect customer privacy and records. In the pending case against AT&T, the judge already has ruled unequivocally that ``AT&T cannot seriously contend that a reasonable entity in its position could have believed that the alleged domestic dragnet was legal.'' Even so, the communications company defendants can and should have the opportunity to present these defenses to the courts and the courts--not the Congress preemptively--should decide whether they are sufficient. The seventh argument that is being made by the supporters of immunity is that information leaks may compromise state secrets and national security. I have heard this argument over and over and over again. The fact is, our Federal court system, in decade after decade of dealing with delicate national security matters, has built up the expertise it takes to secure that information behind closed doors. If we are still concerned about national security being threatened as a result of these cases, we can simply get the principals a security clearance. We can be increasingly confident that these cases will not expose state secrets or intelligence sources, because after the extensive litigation that has already taken place at both the district court and circuit court level, no sensitive information has been leaked. This is a red herring issue. It is one that they are going to fall back on over and over again. But it is no secret about what has been going on. It has been widely reported. The only thing we are talking about is methods and means. Yet, over the decades, our Federal courts, in very sensitive matters, have protected that information. So this is a phony argument and ought not to carry the day. The eighth argument from those who support immunity: A lack of immunity will harm the telecom companies. This is not unlike Admiral McConnell's argument about finances. There will be reputational damage to the telecom industry. The fact is, there is no evidence that this litigation has reduced or will reduce the defendant companies' bottom lines or customer base. These companies can only be harmed if they have done something wrong. If they have not, they have nothing to worry about. But the suggestion somehow that we should not go forward because your reputation may be damaged is an insulting argument. It is offensive to suggest that we should harm the people's right to privacy because to prevent some reputational damage--they should be embarrassed to make that argument. After all, there is nothing to be damaged if you have done nothing wrong. If you have done something wrong, then, of course, there will be some damage. And why shouldn't there be, if you have done wrong? The courts are the ones to properly determine that. The ninth argument: The magnitude of liability will bankrupt the telecoms. I have addressed this already, but I will briefly respond to it as well. As we have seen, huge corporations could only be wiped out by most enormous penalties and also the most unlikely penalties that could be imposed. It would take several leaps to assume that the telecoms would lose and that they will be slapped with huge judgments. But on another level, immunity supporters are staking their claim on a dangerous principle, that a suit can be stopped solely on the basis of how much the defendant stands to lose. If we accept that premise, we could conceive of a corporation so wealthy, so integral to our economy, that its riches place it outside of the law altogether. That is a deeply flawed argument. We see that none of these arguments for immunity stand. There is absolutely no reason to halt the legal process and to bar the courthouse door. I think it is important at this moment to share with those who may be following this discussion, how we got to this point. How did we find out about all of this? I said earlier that we would not be here debating this this evening had it not been for a whistleblower, had it not been for reports in the media about what was going on, that a 5- year violation of privacy rights would have now turned into a 7- or 8- year violation, unabated, unstopped--every phone conversation, fax, e- mail being literally swept up, from millions and millions of people. But we got knowledge of this because of a gentleman by the name of Mark Klein who was a former AT&T telecommunications technician who came forward to provide evidence of the company's collaboration with the NSA. Mark Klein is a remarkable individual, a person of knowledge and ability when it comes to these matters. Let me read from Mark Klein's testimony because I think it is important. This is all from him. These are not my words. These are words from Mark Klein, a person who worked at AT&T for more than 20 years as an employee and a technician who came forward to provide this information. Let me read his comments, if I may, and put them into this debate. For about 5 years, the Bush administration's National Security Agency, with the help of the country's largest telecommunications companies, has been collecting your e- mail, accumulating information on your Web browser, and gathering details about your Internet activity, all without warrants and in violation of the U.S. Constitution and several Federal and State laws. Even after the program was exposed by the New York Times in December of 2005, the President and other government officials consistently defended the NSA's activities, insisting that the NSA only collects communications into or from the United States where one party to the communication is someone they believe to be a member of al Qaeda or an associated terrorist organization. But these claims are not true. I know they are not true, because I have firsthand knowledge of the clandestine collaboration between one giant telecommunications company and the NSA to facilitate the most comprehensive spying program in history. I have seen the NSA's vacuum cleaner surveillance infrastructure with my own eyes. It is a vast government-sponsored, warrantless spying program. For over 22 years, I worked as a technician for AT&T. While working in San Francisco in 2002, I learned that a management level technician, with AT&T's knowledge, had been cleared by the NSA to work on a special but secret project, the installation and maintenance of Internet equipment in a newly constructed secure room in AT&T's central office in San Francisco. Other than the NSA-cleared technician, no employees were allowed in that room. In October of 2003, I was transferred to that office and was in particular assigned to oversee AT&T operations. As part of my duties, I was required to connect circuits carrying data to optical splitters which made a copy of the light signal. But the splitters weakened the light signal causing problems I had to troubleshoot. After examining engineering documents given to the technicians which showed the connections to the splitters, I discovered that there they were hard wired to the secret room. In short, an exact copy of all traffic that flowed through critical AT&T cables--e-mails, documents, pictures, Web browsing, voiceover Internet phone conversations--everything was being diverted to equipment inside the secret room. In addition, the documents revealed the technological gear used in their secret project, including a highly sophisticated search component capable of quickly sifting through huge amounts of digital data, including text, voice, and images in real-time, according to preprogrammed criteria. It is important to understand that the Internet links which were connected to the splitter contained not just foreign communications, but vast amounts of domestic trafficking all mixed together. Furthermore, the splitter has no selective abilities. It is just a dumb device which copies everything to the secret room. And the links going through the splitter are AT&T's physical connections to many other Internet providers; e.g., Sprint, Qwest, Global Crossing Cable and Wireless, and the critical west coast exchange point known as Mae West. Since these networks are interconnected, the government's surveillance affects not only AT&T customers, but everyone else--millions of Americans. I repeat again, I am reading the testimony of Mark Klein who was the whistleblower who revealed this 5-year-long warrantless surveillance program. Mark Klein goes on: I also discovered in my conversations with other technicians that other secret rooms were established in Seattle, San Jose, Los Angeles and San Diego. One of the documents I obtained also mentioned Atlanta, and the clear inference and the logic of this setup and the language of the documents is that there are other such rooms across the country to complete the coverage--possibly 15 to 20 more. So when reports of the government's extensive wiretapping program surfaced in December of 2005, after I had left AT&T, I realized two things. First, that I had been a witness to a massive spying effort that violated the rights of millions of Americans; and second, that the government was not telling the public the truth about the extent of their unconstitutional invasion of privacy. In the spring of 2006, I became a witness for the Electronic Frontier Foundation's lawsuit against AT&T. The New York Times on April 13 of 2006 reported that four independent technical experts who examined the AT&T documents all said that the documents showed that AT&T had an agreement with the Federal Government to systematically gather information flowing on the Internet. That is the testimony of Mark Klein. I think it is important as well to share with my colleagues the testimony of Brian Ried, currently the Director of Engineering and Technical Operations at Internet Systems Consortium, a nonprofit organization devoted to supporting a nonproprietary Internet. This is a person of extensive knowledge. I am going to read his testimony about the technical arrangements. This is clearly above my pay grade to understand all of this with this gray head of hair I have, but to those who are listening or watching any of this, this will explain how this actually worked. So I am going to read this as if I actually know what I am talking about. So let me read exactly the words of Brian Ried, the statement of telecommunications expert Brian Ried, an AT&T whistleblower, about Mark Klein's revelations. I am a telecommunications and data networking expert. That is again Brian Ried speaking here who has been involved in the development of several critical Internet technologies. I was a professor of electrical engineering at Stanford University and of computer sciences at Carnegie Melon University West. I have carefully reviewed the AT&T authenticated documents and declaration provided by Mark Klein and the public redacted version of the expert declaration of Jay Scott Marcus, both filed in the Hepting v. AT&T litigation. Combining the information contained in those declarations and documents with my extensive knowledge of the international telecommunications infrastructure and the technology regularly used for lawful surveillance pursuant to warrants and court orders, I believe Mr. Klein's evidence is strongly supportive of widespread, untargeted surveillance of ordinary people, both AT&T customers and others. The AT&T documents describe a technological setup of the AT&T facility in San Francisco. This setup is particularly well suited to wholesale dragnet surveillance of all communications passing through the facility, whether international or domestic. These documents describe how the fiberoptic cables were cut and splitters installed at the cut point. Fiberoptic splitters work just like ordinary TV splitters. One cable feeds in and two cables feed out. Both cables carry a copy of absolutely everything that is sent, and if the second cable is connected to a monitoring station, that station sees all traffic going over the cable. Mr. Klein stated that the second cable was routed into a room at the facility which access was restricted to AT&T employees having clearances from the National Security Agency. The documents indicate that similar facilities were being installed in Seattle, San Jose, Los Angeles, and San Diego. The documents also reference a somewhat similar facility in Atlanta. This infrastructure is capable of monitoring all traffic passing through the AT&T facility, some of it not even from AT&T customers, whether voice or data or fax, international, or domestic. The most likely use of this infrastructure is wholesale, untargeted surveillance of ordinary Americans at the behest of the NSA. NSA involvement undermines arguments that the facility is intended for use by AT&T in protecting its own network operations. This infrastructure is not limited to, nor would it be especially efficient for targeted surveillance or even an untargeted surveillance aimed at communications where one of the ends is located outside of the United States. It is also not reasonably aimed at supporting AT&T operations and security procedures. There are 3 main reasons. The technological infrastructure is far more powerful and expansive than that needed to do targeted surveillance or surveillance aimed at only international or one end foreign communications. For example, it includes a Narus 6400, a computer that can simultaneously analyze huge amounts of information based on rules provided by the machine operator, analyze the content of messages and other information--not just headers or routing information--conduct the analysis in real-time rather than after a delay, correlate information from multiple sources, multiple formats, over many protocols and through different periods of time in that analysis. The documents describe a secret private backbone network separate from the public network where normal AT&T customer traffic is carried and transmitted. A separate backbone network would not be required for transmission of the smaller amounts of data captured by a targeted surveillance. You don't need that magnitude of transport capacity if you are doing targeted surveillance. The San Francisco facility is not located near an entry- exit point for international communications that happened to be transmitted through the United States either through under sea cable or via satellite. As a result, it would not be a sensible place to locate aimed at simply monitoring traffic to or from foreign countries. I apologize for reading these technical documents, but I think they shed some light. We are talking about very knowledgeable, expert people describing technically what was done, the magnitude of it, the capacity of it, the effort that was made, obviously, to see to it, as Mr. Klein calls it, a dumb machine that would not discriminate between information that might only be used to protect us from al-Qaida, and wholesale invasion of privacy. But putting aside all that--had they sought a warrant and a court order, as they should have done, then arguably AT&T and others involved would be protected today and be immunized against lawsuits, if it had been done under the FISA legislation. The fact that the administration decided to totally disregard 30 years of legislation, of working courts that have provided, in over 18,700 examples, approval of such requests, rejecting only 5, shows an arrogance that shouldn't be ignored. So again, tomorrow when the votes occur on cloture and the votes occur on these amendments, we will may sanctioning this activity-- setting the unprecedented precedent of a Congress actually providing immunity from the courts even examining whether warrantless spying is legal and right. Hence, in future years, this will be cited, I am confident, by those who want to undermine the FISA Courts, deprive the courts the opportunity to make sure there is a justification, an argument, a legal basis for granting these warrants. The argument will be made: You don't need the courts, because back in 2008, telecommunications companies, at the mere request of a President, were able to go forward and spend more than 5 years invading the privacy of millions of Americans, and when the Senate had an opportunity to sanction that activity, it decided to do so, rather than allow the court to determine whether that action was legal. The word of the Senate should be a valued--I can hear the argument years hence. They listened to the debates, they listened to that fellow Dodd get up and talk for hours about the issue of immunity and why it shouldn't be granted retroactively and they turned him down. That will be the precedent cited when faced with similar allegations involving future administrations that may decide that financial information, medical information, highly private, personal, family information may be the subject of unwarranted surveillance to allegedly protect our country and keeping us safe. If that is the case, I am confident this debate and these votes will be cited as a justification for allowing that kind of activity to go forward without receiving the legal authority to do so. We will have denied the courts the opportunity to decide whether this activity that was the most serious invasion of privacy ever maybe in our country was legal or illegal. By granting retroactive immunity, we will have made a decision to deprive the courts of that responsibility. Ultimately, all I am asking for is a fair fight. To reject immunity would mean to grab hold of the closest thread of lawlessness we have at hand and to pull until the whole garment unravels. But ensuring a day in court is not the same as ensuring a verdict. When that day comes, I have absolutely no investment in the verdict, either way. It may be the Federal Government broke the law when they asked the telecoms to spy but that the telecoms' response was an innocent one. It may be the Government was within the law and that the telecoms broke it. Maybe they both broke the law. Maybe neither did. But just as it would be absurd to declare the telecoms clearly guilty, it is equally absurd, I would argue, to close the case in Congress without a decision. That is what immunity does: It closes the case without a decision. Throughout this debate, the telecoms' advocates have needed to show not just that they are right but that they are so right and that we are so far beyond the pale that we can shut down the argument right here, today. That is a burden they have clearly not met, and they cannot expect to meet it when a huge majority of Senators who will make the decision have not even seen the secret documents that are supposed to prove the case for retroactive immunity. My trust is in the courts, in the cases argued openly, in the judges who preside over them, and in the juries of American citizens who decide them. They should be our pride, not our embarrassment, and they deserve to do their jobs. As complex, as diverse, as relentless as the assault on the rule of law has been, our answer to it is a simple one. Far more than any President's lawlessness, the American way of justice remains deeply rooted in our character; that no President can disturb or should be allowed to do so. So I am full of hope. Even on this dark evening, I have faith that we can unite security and justice because we have already done it for 30 years. My father, Senator Tom Dodd, was the number two American prosecutor at the famous Nuremburg trials, which may have something to do with the passion I feel about this issue--the rule of law. I have never forgotten the example he and Justice Robert Jackson and others set at Nuremberg more than 60 years ago. As Justice Robert Jackson said in the opening statement at Nuremberg--in fact, I have written it down, but I memorized this years and years ago. Robert Jackson's opening statement, speaking to the court, talking about the Soviet Union, the British, the French, and America, he made the following argument: That four great nations, flushed with victory and stung with injury, stay the hand of vengeance and voluntarily submitting their captive enemies to the judgment of the law is one of the most significant tributes that power ever paid to reason. That is a great sentence when you think of it. Here we are staying the hands of vengeance and power, paying tribute to reason. At Nuremberg, there were 21 initial defendants. Madam President, 55 million people had died, 6 million Jews were incinerated, and 5 million others had the same fate befall them because of their politics, religion, or sexual orientation. These were some of the greatest crimes in recorded history. Winston Churchill wanted to summarily execute every one of them. The Soviets wanted a show trial for a week and then to kill them all. Robert Jackson, Harry Truman, Henry Stinton, the Secretary of War in Roosevelt's Cabinet--this handful of people said: The United States is different. We are going to do something no one else has ever done before. We are going to give these defendants, as great violators of human rights as they are, a day in court. It was unprecedented. Here they are, the war still raging in the Pacific, gathering in Nuremberg, Germany, which had 30,000 people buried in the rubble of the city. Prosecutors, judges, and lawyers for these individuals gathered together and gave them a day in court that went on for a year. And the United States gained the moral high ground. Never before in history had the victors given those guilty of the worse atrocities imaginable a day in court. I cannot believe this country, at this hour, would walk away from the rule of law when we stood for it so proudly in the 20th century. In fact, that experience at Nuremberg gave birth to a half-century of moral authority. It paved the way for the Marshall Plan and for the international structures that gave the world relative peace for more than a half century. For so many years, both Republican and Democratic administrations stood up for them and defended them. The international criminal courts and others--none of these institutions would have existed were it not for the United States leading. Today, when we find ourselves at this moment in this body--of all places--walking away from the rule of law, I think it is a dark hour. Again, my hope is that by tomorrow reason will prevail here, and we will arrive at a different decision and reject this idea that retroactive immunity is warranted. What is the tribute that power owes to reason? That when America goes to war, it doesn't fight for land or for treasure or for dominance but for a transcendent idea--the idea that laws should rule and not men; the idea that the Constitution does not get suspended for vengeance; the idea that this great Nation should never tailor its eternal principles to the conflict of the moment because, if we did, we would be walking in the footsteps of the enemies we despised. The tribute that power owes to reason: More than ever before, that tribute is due today. If we cannot find the strength to pay it, we will have to answer for it. There is a famous military recruiting poster that comes to mind. A man is sitting in an easy chair with his son and daughter on his lap, in some future after the war has ended. His daughter asks him: Daddy, what did you do in the war? His face is shocked and shamed, because he knows he did nothing. My daughters, Grace and Christina, are 3 and 6 years old. They are growing up in a time of two great conflicts: one between our Nation and enemies, and another between what is best and worst in our American soul. Someday soon I know I am going to hear the question: What did you do? I want more than anything else to give the right answer to that question. That question is coming from every single one of us in this body. Every single one of us will be judged by a jury from whom there is no hiding: our sons and daughters and grandchildren. Someday soon they will read in their textbooks the story of a great nation, one that threw down tyrants and oppressors for two centuries; one that rid the world of Naziism and Soviet communism; one that proved that great strength can serve great virtue, that right can truly make might. Then they will read how, in the early years of the 21st century, that Nation lost its way. We don't have the power to strike that chapter. We cannot go back. We cannot undestroy the CIA's interrogation tapes. We cannot unpass the Military Commissions Act. We cannot unspeak Alberto Gonzales' disgraceful testimony. We cannot untorture innocent people. And, perhaps, sadly, shamefully, we cannot stop retroactive immunity. We cannot undo all that has been done for the last 6 years for the cause of lawlessness and fear. We cannot blot out that chapter. But we can begin the next one, even today. Let the first words read: Finally, in February 2008, the Senate said: Enough is enough. I implore my colleagues to write it with me. I implore my colleagues to vote against retroactive immunity. I implore them to reject it, and if we fail to do that, to vote against cloture. I have shared my thoughts and views at some length now. But there are others who have spoken eloquently on this subject. I think their words deserve to be heard because they state far more eloquently than I could the importance of all of this and why this is such a compelling case and deserving of our attention. Let me share a few of these words from the New York Times: Even by the dismal standards of what passes for a national debate on intelligence and civil liberties, last week was a really bad week. The Senate debated a bill that would make needed updates to the Foreign Intelligence Surveillance Act--while needlessly expanding the president's ability to spy on Americans without a warrant and covering up the unlawful spying that President Bush ordered after 9/11. The Democrat who heads the Senate Intelligence Committee, John Rockefeller of West Virginia, led the way in killing amendments that would have strengthened requirements for warrants and raised the possibility of at least some accountability for past wrongdoing. Republicans declaimed about protecting America from terrorists--as if anyone was arguing the opposite--and had little to say about protecting Americans' rights. We saw a ray of hope when the head of the Central Intelligence Agency conceded--finally--that waterboarding was probably illegal. But his boss, the 'director of national intelligence, insisted it was legal when done to real bad guys. And Vice President Dick Cheney--surprise!--made it clear that President Bush would authorize waterboarding whenever he wanted. The Catch-22 metaphor is seriously overused, but consider this: Attorney General Michael Mukasey told Congress there would be no criminal investigation into waterboarding. He said the Justice Department decided waterboarding was legal (remember the torture memo?) and told the C.I.A. that. So, according to Mukaseyan logic, the Justice Department cannot investigate those who may have committed torture, because the Justice Department said it was O.K. and Justice cannot be expected to investigate itself. As it was with torture, so it was with wiretaps. After the 2001 terrorist attacks, the President decided to ignore the Foreign Intelligence Surveillance Act, or FISA, and authorized wiretaps without a warrant on electronic communications between people in the United States and people abroad. Administration lawyers ginned up a legal justification and then asked communications companies for vast amounts of data. According to Mr. Rockefeller, the companies were ``sent letters, all of which stated that the relevant activities had been authorized by the President'' and that the Attorney General--then John Ashcroft--decided the activity was lawful. The legal justification remains secret, but we suspect it was based on the finely developed theory that the government cannot be sued for doing so if they were obeying a warrant-- or a certification from the Attorney General that a warrant was not needed--and all federal statutes were being obeyed. When Mr. Bush started his spying program, FISA allowed warrantless eavesdropping for up to a year if the president certified that it was directed at a foreign power, or the agent of a foreign power, and there was no real chance that communications involving United States citizens or residents would be caught up. As we now know, the surveillance included Americans and there was no ``foreign power'' involved. The law then, and now, also requires the attorney general to certify ``in writing under oath'' that the surveillance is legal under FISA, not some fanciful theory of executive power. He is required to inform Congress 30 days in advance, and then periodically report to the House and Senate intelligence panels. Congress was certainly not informed, and if Mr. Ashcroft or later Alberto Gonzales certified anything under oath, it's a mystery to whom and when. The eavesdropping went on for four years and would probably still be going on if The Times had not revealed it. So what were the telecommunications companies told? Since the administration is not going to investigate this either, civil actions are the only alternative. The telecoms, which are facing about 40 pending lawsuits, believe they are protected by a separate law that says companies that give communications data to the government cannot be sued for doing so if they were obeying a warrant--or a certification from the attorney general that a warrant was not needed--and all federal statutes were being obeyed. To defend themselves, the companies must be able to show they cooperated and produce that certification. But the White House does not want the public to see the documents, since it seems clear that the legal requirements were not met. It is invoking the state secrets privilege--saying that as a matter of national security, it will not confirm that any company cooperated with the wiretapping or permit the documents to be disclosed in court. So Mr. Rockefeller and other senators want to give the companies immunity even if the administration never admits they were involved. This is short-circuiting the legal system. If it is approved, we will then have to hope that the next president will be willing to reveal the truth. Mr. Rockefeller argues that companies might balk at future warrantless spying programs. Imagine that! This whole nightmare was started by Mr. Bush's decision to spy without warrants--not because they are hard to get, but because he decided he was above the law. Discouraging that would be a service to the nation. This debate is not about whether the United States is going to spy on Al Qaeda, it is about whether it is going to destroy its democratic principles in doing so. Senators who care about that should vote against immunity. Madam President, if I can, I will read from the USA Today, which also had a good editorial on this subject matter, dated October 22, 2007. It is entitled, ``Our View On Your Phone Records: Immunity Demand For Telecoms Raises Questions.'' As history shows, mass snooping can sweep up innocent citizens. Anyone who has ever watched TV's Law & Order: SVU knows how easy it is for police to get the bad guys' LUDs--``local usage details,'' better known as telephone calling records. They only need to get a prosecutor to sign a subpoena. Eavesdropping on calls or reading e-mails is a bit tougher. A warrant must come from a judge, and stronger evidence is needed. Even so, it is an efficient process that serves law enforcement's needs while guarding against arbitrary intrusions into the privacy of innocent people. But whether those protections still exist in national security cases is very much in doubt. Since Sept. 11, 2001, the Bush administration has repeatedly bypassed the special court set up to preserve balance. Now, with Congress threatening to restore some level of protection, the administration is insisting on legal immunity for telecommunications companies that might have turned over records improperly. Last week, a key Senate committee agreed. The request alone is enough to raise suspicion, particularly given the nation's history. In the 1960s and '70s when law enforcement and spy agencies launched mass snooping against U.S. citizens, some of the data ended up being used for nefarious purposes, such as IRS tax probes, that had nothing to do with protecting the nation. That is the danger when an administration can tap into phone records without court oversight, and it is what's at issue now. The administration has repeatedly bypassed the special national security court, arguing that the urgency of the war on terrorism justified its actions. In one particularly troubling intrusion, the National Security Agency (NSA), a Pentagon-run spy agency, built a database--with cooperation from some telecom companies--that includes America's domestic calls. The extent of the program remains hidden, one reason many in Congress are reluctant to grab the company's immunity. According to the account of one former CEO, the NSA foray has already led to abuse. When Qwest, one of the nation's largest telecom companies, refused to go along with the NSA program--because Qwest lawyers considered it illegal--the NSA allegedly retaliated by denying Qwest other lucrative government contracts. Further, the requests to participate, according to former Qwest chief executive Joseph Nacchio, came six months before the 9/11 attacks. Nacchio's allegations are in court findings unsealed this month that are part of his battle over a conviction of insider trading. If the Senate measure becomes law, telecom companies will get immunity from nearly 40 lawsuits without the public knowing what the companies or the government did. Never mind that six of the lawsuits were brought by state officials-- from New Jersey to Missouri--concerned about possible violation of citizens' privacy. There might be some valid reason to grant immunity. The Senate committee agreed after seeing details. But even if there is, the companies should be compelled to tell the public the precise nature and reach of the program, and the program should be put firmly under court review. The Senate measure also would place minimal court supervision over future surveillance ventures. A far more sensible House Democratic measure would give the Foreign Intelligence Surveillance Court a greater role. That system works well, even in emergencies. In the harrowing minutes after the Pentagon was attacked on 9/11, the court's chief judge, stuck in his car, granted five surveillance warrants from his cell phone. Speed, obviously, is important. Nevertheless, it can be achieved without discarding protections that long ago proved their worth. The Dallas Morning News had a good article as well on Friday, October 19, of last year, entitled ``Beck and Call: Verizon too eager to surrender phone records'': Verizon's willingness to turn over customer telephone records when the government asks--even though investigators often make such requests without a court order--is a troubling practice. The company may be motivated by a desire to help--or to avoid government confrontation. But Verizon's approach, disclosed in a letter to Congress this week, is the wrong way to go about this. The burden of proof rests with the federal government to prove its need for the records. Except in rare instances, investigators must take their records requests to a judge who then can determine whether to issue a warrant. The Constitution intends just that, in language that fairly balances privacy fears and law enforcement. Yet the Bush administration insists on continuing to push the post-9/11 civil liberties vs. security debate in the wrong direction. Because telecom companies that have complied with its requests now face huge lawsuits from citizens-rights groups, the administration wants a law to grant immune businesses sued for disclosing information without court authorization. Congress is right to look at the immunity proposal with a skeptical eye, especially since the administration has been reluctant to explain details of its controversial surveillance program to lawmakers. The law would further erode the privacy firewall and remove another layer of checks and balances. The phone companies, meanwhile, have refused to tell relevant congressional committees whether they participated in the National Security Agency's domestic eavesdropping program. Their silence is based on concerns that they might illegally divulge classified information if they talk to Congress in too much detail. Yet Congress and the courts have legitimate oversight roles in issues of privacy and national security. Due process is necessary to promote transparency and accountability in a democracy. These are foundational principles, even in the more dangerous post-9/11 world. There is a further piece I think is worthy of reading, written in December of 2005 by a former majority leader of this great body, Tom Daschle. It's called ``Power We Didn't Grab.'' Tom Daschle was deeply involved, I should point out, in the negotiations dealing with many of these matters, particularly in the wake of the resolution that was drafted granting the President the authority to go after al-Qaida in Afghanistan. Alberto Gonzales later argued that with the adoption of that resolution, Congress was granting the President authority to conduct the warrantless surveillance that is the subject of our discussion this evening. That resolution was the subject of some negotiation over several days before it was presented for a final vote in this body. So it is worthy of consideration that Tom Daschle would write a piece in the Washington Post when Alberto Gonzales made the argument that the President's authority to require the phone companies to comply with his request without a court order was, in fact, never the subject of those negotiations. I will read Tom Daschle's words on December 23, 2005: In the face of mounting questions about news stories saying that President Bush approved a program to wiretap American citizens without getting warrants, the White House argues that Congress granted it authority for such surveillance in the 2001 legislation authorizing the use of force against al Qaeda. On Tuesday, Vice President Cheney said the president ``was granted authority by the Congress to use all means necessary to take on the terrorists, and that's what we've done.'' As Senate majority leader at the time, I helped negotiate that law with the White House counsel's office over two harried days. I can state categorically that the subject of warrantless wiretaps of American citizens never came up. I did not and never would have supported giving authority to the president for such wiretaps. I am also confident that the 98 senators who voted in favor of authorization of force against al Qaeda did not believe that they were also voting for warrantless domestic surveillance. On the evening of Sept. 12, 2001, the White House proposed that Congress authorize the use of military force to ``deter and pre-empt any future acts of terrorism or aggression against the United States.'' Believing the scope of this language was too broad and ill defined, Congress chose instead, on Sept. 14, to authorize ``all necessary and appropriate force against those nations, organizations or persons [the president] determines planned, authorized, committed, or aided'' the attacks of Sept. 11. With this language, Congress denied the president the more expansive authority he sought and insisted that his authority be used specifically against Osama bin Laden and al Qaeda. Just before the Senate acted on this compromise resolution, the White House sought one last change. Literally minutes before the Senate cast its vote, the administration sought to add the words ``in the United States and'' after ``appropriate force'' in the agreed-upon text. This last- minute change would have given the president broad authority to exercise expansive powers not just overseas--where we all understand he wanted authority to act--but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused. The shock and rage we all felt in the hours after the attack was still fresh. America was reeling for the first attack on our soil since Pearl Harbor. We suspected thousands had been killed, and many who worked in the World Trade Center and the Pentagon were not yet accounted for. Even so, a strong bipartisan majority could not agree to the administration's request for an unprecedented grant of authority. The Bush administration now argues those powers were inherently contained in the resolution adopted by Congress-- but at the time, the administration clearly felt they weren't or it wouldn't have tried to insert the additional language. All Americans agreed that keeping our nation safe from terrorists demands aggressive and innovative tactics. This unity was reflected in the near-unanimous support for the original resolution and the Patriot Act in those harrowing days after Sept. 11. But there are right and wrong ways to defeat terrorists, and that is a distinction this administration has never seemed to accept. Instead of employing tactics that preserve Americans' freedoms and inspire the faith and confidence of the American people, the White House seems to have chosen methods that can only breed fear and suspicion. If the stories in the media over the past week are accurate, the president has exercised authority that I do not believe is granted to him in the Constitution, and that I know is not granted to him in the law I helped negotiate with his counsel and that Congress approved in the days after Sept. 11. For that reason, the president should explain the specific legal justification for his authorization of these actions, Congress should fully investigate these actions and the president's justification for them, and the administration should cooperate fully with that investigation. In the meantime, if the president believes the current legal architecture of our country is sufficient for the fight against terrorism, he should propose changes to our laws in the light of day. That is how a great democracy operates. And that is how this great democracy will defeat terrorism. Those were eloquent words from our former majority leader who was, as I said, deeply involved in the negotiations crafting the resolution that was adopted almost unanimously, allowing us to attack al-Qaida, to defeat them in Afghanistan. Regrettably, Osama bin Laden and too many of his operatives are still on the loose. But that language gave the President the authority to act against them. He specifically wanted more authority at home. The majority leader and those who worked with him rejected that argument and that resolution adopted in 2001, 48 hours after the attack, specifically excluded the kind of activity that Alberto Gonzales and Vice President Cheney claimed was granted in that resolution. It was worthy to note the language of Senator Daschle during that debate. I am going to read one more piece, if I may, again going back to October. It is ``Immunity for Telecoms May Set Bad Precedent, Legal Scholars Say. Retroactive problems could create problems in the future.'' This is by Dan Eggen. This was written in October of 2007. I made the argument earlier that I was concerned about the precedent- setting nature of what we are doing. This evening I have been reaching back 30 years to language used by our predecessors in this Chamber, Republicans and Democrats, who were part of the Church Commission that crafted the FISA legislation and the language they used, which easily could have been written yesterday and describing the debate we are having these days. We are calling upon them to guide us as we make our decisions about how to proceed in this day's work with the different threats we face, but the threats our predecessors faced were not small threats--the Soviet Union, a nuclear holocaust, significant problems of surveillance. They had the courage and the wisdom to step back and to create a structure that allowed us to maintain that balance between security and liberty. So it is important because I am concerned that at some future date that the votes tomorrow may give a strong precedent to those who have never liked the idea of Federal courts granting warrants to conduct surveillance but prefer this be done at the mere request of an American President. I made the case that when the Framers fashioned this Republic of ours, had efficiency been their goal, they never would have established a written system that had so many inefficiencies in it. In fact, requiring the checks and balances of an executive, judicial, and legislative branch with all of the requirements that we insist upon make this system terribly inefficient in many ways. But the Founders of this Republic were not only concerned about what we did but how we did things. It is terribly important to be mindful of that in these debates. Clearly, we need to gather information, and we need to be able to do it in an expeditious fashion. But we also need to make sure that how we do that is not going to violate more than 220 years of history, of guaranteeing the rights and liberties of individual citizens. Thirty years ago, a previous Senate found a way to do that with the establishment of the secret Federal courts. These courts are established by the Chief Justice of the United States, who appoints sitting Federal judges anonymously to serve on these courts. None of us ever get to know who they are. But as I pointed out earlier, even on 9/ 11, a cell phone one of these secret FISA judges was able to respond instantaneously to the request being made to conduct surveillance necessary in the minutes after 9/11. So it is important not only what we do about today's problem but the message we send, the precedent we set for future Congresses when confronted in their day, as they will be, with challenges regarding the balance between security and liberty. So this article, written by Dan Eggen, I think has value, talking about how retroactive protection could create problems in the future. When previous Republican administrations were accused of illegality in the FBI and CIA spying abuses of the 1970s or the Iran Contra affair of the 1980s, Democrats in Congress launched investigations or pushed for legislative reforms. But last week, faced with admissions by several telecommunication companies that they assisted the Bush administration in warrantless spying on Americans, leaders of the Senate Intelligence Committee took a much different tack, opposing legislation that would grant those companies retroactive immunity from prosecution or lawsuits. The proposal marks the second time in recent years that Congress has moved toward providing legal immunity for past actions that may have been illegal. The Military Commissions Act, passed by the GOP-led Congress in September of 2006, provided retroactive immunity for CIA interrogators who could have been accused of war crimes for mistreating detainees. Legal experts say the granting of such retroactive immunity by Congress is unusual, particularly in a case involving private companies. Congress, on only a few occasions, has given some form of immunity to law enforcement officers, intelligence officials, or others within the government, or to some of its contractors, experts said. In 2005, Congress also approved a law granting firearms manufacturers immunity from lawsuits by victims of gun violence. ``It's particularly unusual in the case of the telecoms, because you don't really know what you are immunizing,'' said Louis Fisher, a specialist in constitutional law with the Law Library of the Library of Congress. ``You don't know what you are cleaning up.'' As part of a surveillance package approved Thursday by the Senate Intelligence Committee, some telecommunications companies would be granted immunity from about 40 pending lawsuits that allege they violated Americans' privacy and constitutional rights by aiding a warrantless wireless surveillance program instituted after the September 11, 2001, attacks. I might point out here--and I will digress for a second--that we heard earlier testimony that this program may have actually started prior to the attacks of 9/11. There has been testimony submitted in courts by one of the telecoms, Qwest's CEO, that in fact a request was made of them to actually provide warrantless surveillance in January of 2001, when the administration took office, long before the attacks of 9/11. So it seems to me that alone ought to be the subject of some inquiry. We have all accepted the notion that immediately after 9/11, whether we liked it or not, it was understandable how in the emotions of the moment, that companies, at the request of an administration, even here an administration requesting warrantless surveillance, might have acted. Not that we would agree or like it but most would understand it. My objection, as I said earlier, is not that it went on but that it went on for the next 5 years and would still be ongoing were it not for the whistleblower and the reports in the media. But what is troubling to me is we are assuming this all began after 9/11. There may now be some evidence it began before 9/11, which would debunk a lot of arguments given on why we should grant retroactive immunity. I merely point this out because we read earlier in testimony here that suggested this might have been done earlier. At any rate, I will continue from Mr. Eggen's article talking about the provision we are talking about here. The provision is a key concession to the administration and the companies, which lobbied heavily for it. Referring to the retroactive immunity. Supporters argue the legislation is needed to avoid unfair punishment of private firms that took part in good-faith efforts to assist the government. In arguing in favor of such protections earlier this month, President Bush said any legislation ``must grant liability protection to companies who are facing multibillion dollar lawsuits only because they are believed to have assisted in the efforts to defend our Nation following the 9/11 attacks.'' The head of the intelligence panel, Sen. John D. Rockefeller, made a similar argument after the bill was approved last week. ``The onus is on the administration, not the companies, to ensure that the request is on strong legal footing,'' he said. Jeffrey H. Smith, a CIA general counsel during the Clinton administration who now represents private companies in the national security area, said the risk of litigation poses an unfair threat to government officials or others who have good reason to believe they are acting legally. He noted that many intelligence officers now feel obliged to carry liability insurance. ``It seems to me that it's manifestly unfair for the officers that conducted that program and the telecoms to now face prosecution or civil liability for carrying out what was on its face a totally lawful request on the part of the government,'' Smith said. ``It's not the same as Abu Ghraib or a CIA officer who beats someone during an interrogation.'' But civil liberties groups and many academics argue that Congress is allowing the government to cover up possible wrongdoing and is inappropriately interfering in disputes the courts should decide. The American Civil Liberties Union last campaigned against the proposed Senate legislation, saying in a news release Friday that ``the administration is trying to cover its tracks.'' Sen. Russell Feingold said in a statement last week that classified documents provided by the White House ``further demonstrate that the program was illegal and that there is no basis for granting retroactive immunity to those who allegedly cooperated.'' His office declined to elaborate on the records, which were reviewed by a Feingold staffer. Retired Rear Adm. John Hutson, dean and president of the Franklin Pierce Law Center in Concord, N.H., said he is concerned about the precedent a new immunity provision might set. The article quotes him. ``The unfortunate reality is that once you've done it, once you immunize interrogators or phone companies, then it's easy to do it again in another context. It seems to me that as a general rule retroactive immunity is not a good thing . . . It's essentially letting Congress handle something that should be handled by the Judiciary.'' These are, I think, very good articles that shed light on some of the important issues we need to be looking at. Let me, if I can, go back and talk about the Church Commission. I think it is important because we are relying so heavily on the work they have done and the establishment in the immediate aftermath of the Church Commission of the FISA Courts. I have quoted from some of them earlier this evening, but I think it is worthwhile to go back and listen to their words. Again, I want you to know these words were written 30 years ago, but I think people can appreciate how timely the language is when you consider the debate we are having. It is hard not to wonder how these words weren't prepared less than 24 hours ago, in preparation for this debate. I think their warnings and admonitions have a timeliness to them that are worthy of including in this discussion at this moment. So let me quote from the Church report: Americans have rightfully been concerned since before World War II about the dangers of hostile foreign agents likely to commit acts of espionage. Similarly, the violent acts of political terrorists can seriously endanger the rights of Americans. Carefully focused intelligence investigations can help prevent such acts. But too often intelligence has lost its focus and domestic intelligence activities have invaded individual privacy and violated the rights of lawful assembly and political expression. Unless new and tighter controls are established by legislation, domestic intelligence activities threaten to undermine our democratic society and fundamentally alter its nature. A tension between order and liberty is inevitable in any society. A government must protect its citizens from those bent on engaging in violence and criminal behavior or in espionage or other hostile foreign intelligence activity. Intelligence work has, at times, successfully prevented dangerous and abhorrent acts, such as bombings and foreign spying, and aided in the prosecution of those responsible for such acts. But intelligence activity in the past decades has, all too often, exceeded the restraints on the exercise of governmental power which are imposed by our country's constitution, laws, and traditions. We have seen segments of our government, in their attitudes and action, adopt tactics unworthy of a democracy, and occasionally reminiscent of the tactics of totalitarian regimes. We have seen a consistent pattern in which programs initiated with limited goals, such as preventing criminal violence or identifying foreign spies, were expanded to what witnesses characterized as ``vacuum cleaners,'' sweeping in information about lawful activities of American citizens. That these abuses have adversely affected the constitutional rights of particular Americans is beyond question. But we believe the harm extends far beyond the citizens directly affected. Personal privacy is protected because it is essential to liberty and the pursuit of happiness. Our constitution checks the power of government for the purpose of protecting the rights of individuals, in order that all our citizens my live in a free and decent society. Unlike totalitarian states, we do not believe that any government has a monopoly on truth. When government infringes on these rights instead of nurturing and protecting them, the injury spreads far beyond the particular citizens targeted to untold number of other American citizens who may be intimidated. Abuse thrives on secrecy. Obviously, public disclosure over matters such as the names of intelligence agents or the technological details of collection methods is inappropriate. But in the field of intelligence, secrecy has been extended to inhibit review of the basic programs and practices themselves. Those within the executive branch and the Congress who would exercise their responsibilities wisely must be fully informed. The American people as well should know enough about intelligence activities to be able to apply its good sense to the underlying issues of policy and morality. Knowledge is the key to control. Secrecy should no longer be allowed to shield the existence of constitutional, legal and moral problems from the security of all three branches of government or from the American people themselves. Those are incredible words that could. None of us could say it more eloquently than our colleagues did 30 years ago. I can't tell you all the names of the Republicans and Democratic Senators who wrote this language, but they came from all parts of the country. They were, many of them, veterans of World War II, had served in Korea. Dan Inouye was here. I know that. Senator Byrd, whom I sit next to, was here. Senator Ted Kennedy was here. Senator Ted Stevens was here for those debates. Those are the Members I can think of off the top of my head who were probably Members back in 1978 when this was written. Joe Biden was here as part of that debate. Patrick Leahy was here in 1978. I think Carl Levin and John Warner had just arrived. I think they had been elected that year. I am not sure. But these are wonderful Members who sat and realized we needed to set up that balance between security and liberty and gave us the FISA Courts, the Foreign Intelligence Surveillance Act. Tonight, as we consider whether to grant immunity to the telecom companies and close the door on determining the legality or illegality of their actions, I think these words have tremendous relevance. Every Member ought to take them and read them and think about them. I hear the words of the President, and I am disappointed he said he would veto the bill if we strip immunity. I have listened to Senator McConnell, my good friend from Kentucky, saying we have to adopt this because the President will veto the bill otherwise. That is not the basis upon which the Congress ought to act. I have rarely heard that argument made here. You can raise it, certainly, as a point, but the suggestion that Congress or this body ought to act differently because the President is going to veto something or threatens a veto is not the basis upon which we ought to make decisions, particularly when it comes to matters involving the rule of law and the Constitution of the United States. Those issues of the Constitution and the rule of law ought to trump the reputational damage. The issues of the Constitution and the rule of law ought to trump the arguments somehow that the telecom companies will be less willing to step forward and help conduct the surveillance of our country when we are threatened by outsiders. I cannot undo some of the things that have been done already. I wish I could undo the Military Commissions Act. I wish I could the outrages that occurred at Abu Ghraib. I wish I could undo what has happened at Guantanamo Bay. I wish I could undo secret prisons and extraordinary renditions. But there is a pattern here. It is not just the one event or two, it has been a pattern of behavior almost from the very beginning that ought to be deeply troubling to every single one of us. So while I cannot undo those actions, why would I then add to that list by granting this retroactive immunity? What more do we need to know? Why are we being asked to do this? Why did this administration ask this committee to grant broad-based immunity to every single individual in our Government and our agencies, as well as to the telecom companies? What was behind that request? What did they fear when they sought that kind of unprecedented immunity, for both the private companies and every official involved in the decision to grant or insist upon this compliance? Why were they asking us to do that? So I know, while others have written about this here, I find it deeply troubling that we can once more add this to the destruction of tapes and the CIA, the U.S. attorneys scandal involving the Department of Justice and U.S. attorney's offices. All of these matters, again, are in and of themselves individual cases, and yet, when you step back and think about the totality of them, why would this Congress, at this hour, decide we are going to yet once again say: OK, we'll let you get away with it one more time. I wish I could go back and undo all of those abuses. I cannot. But we have the opportunity not to do this. All it will take is 39 other Senators. All it will take is 40 of us here decide that at this moment in our history that we are going to stand up for the rule of law, we are going to stand up for the Constitution. No other issue we can get to is as important as the Constitution of the United States, no other issue is as important to me, ought to be to all Members, as the rule of law. And as I have done on five separate occasions since January 3, 1981, when as a 36-year-old I stood over here on the floor of the Senate, with Lowell Weicker standing beside me--I raised my right hand and took an oath to defend and uphold the Constitution of the United States. I am proud to have done it five different times, as every Member here has done at least once. What matter, what issue, would be more important than defending the Constitution of the United States? So tomorrow we may have the chance--40 of us--to not invoke cloture and to insist that we are going to fight for this principle of the rule of law and not add to this litany that is going to be revisited over and over again: the Military Commissions Act, waterboarding, Abu Ghraib, Guantanamo Bay, secret prisons, extraordinary renditions, U.S. attorneys scandal, Scooter Libby, destruction of CIA tapes. How many more do you need? Why not add this: retroactive immunity to the telecom industry, at the request of a President who did not want the courts to determine the legality or illegality of the actions? During a critical moment in American history, I for one am not going to allow that to happen. I realize I have been talking a long time here. May I inquire how long I have been speaking? The PRESIDING OFFICER (Ms. Klobuchar.) Two hours 25 minutes.