Christopher Dodd

Mr. DODD

Mr. DODD. Madam President, before our colleague from Wisconsin leaves the floor, let me thank him for his leadership on this issue, along with many others associated with this piece of legislation: the reverse targeting and the bulk collection issues which he has raised, which seem so obvious and so clear that you wonder why they even have to be a subject of debate. The clear reaction, in fact, from leading authorities, including those of the intelligence agencies, has been to state categorically that the very actions he wants to exclude from this legislation are prohibited under law. Reverse targeting is unconstitutional, and bulk collection is unattainable. But some in the administration have said: Were bulk collection possible, we believe we have the right to do it. The idea of bulk collection without following the rule of law should violate the sensibilities of every single Member of this body. This debate and this discussion are very important. This has gone on now since back in December--actually, before then. The Senator from Wisconsin sits on both the Judiciary Committee and the Intelligence Committee, and so he has been deeply involved in these issues for a long time. What I wish to state at the outset is that these amendments we are offering should not be the subject of some sort of political divide between Democrats, Republicans, liberals, conservatives, moderates, or whatever definitions one wants to apply to the people who serve here. This is about the rule of law. It is about the Constitution of the United States, and the idea that this issue and debate should somehow be divided along those lines ought to be offensive to every single Member of this body. Every single one of us, on the day we raise our right hand and take the oath of office, swear to uphold the Constitution of the United States. That is nothing less than what we are engaged in with this debate. We have been asked to subscribe to the false dichotomy that in order for us to be more secure as a nation, we must give up some of our rights. The Senator from Wisconsin and the Senator from Connecticut believe very firmly that quite the opposite is true: that if you begin to give up rights, you become less secure, as a people and as a nation. Our deep concern is that that is exactly the path we seem to be following these days with the refusal to adopt the Feingold amendments in dealing with reverse targeting and bulk collections. It is what I am fearful may be the case when we try to strike title II of the Foreign Intelligence Surveillance Act and prohibit the retroactive immunity being sought by the administration and by a handful of telephone companies. Let me remind our colleagues that when this proposal was first made to the Intelligence Committee, the proposal was to grant immunity to anyone involved in the collection of this information, including those who allegedly authorized it at the executive branch. So while I am critical of what is in the Intelligence Committee bill that has been brought to us by my friend from West Virginia and my friend from Missouri, Senator Rockefeller and Senator Bond, I wish to begin by thanking them for having rejected the administration's earlier request that there be broad-based immunity granted to everyone involved in warrantless wiretapping. But it is instructive to know what the administration wanted at the outset: complete immunity for everyone associated with this vacuum-cleaning operation, who eavesdropped on millions of phone conversations, e-mails, and faxes over the last 5 years. Why were they seeking immunity for everyone involved in this? I think the answer becomes abundantly clear. There is a great concern that the courts may conclude that, in fact, what was done was illegal and that those who participated in it might be held liable. Again, I thank the Intelligence Committee for narrowing this request. However, title II of this bill would still provide telecommunications corporations retroactive immunity for their warrantless and possibly-- possibly--illegal spying on their very customers. Much more than a few companies and a few lawsuits are at stake. Equal justice is at stake--justice that does not place some corporations outside of the rule of law. Openness is at stake--an open debate on security and liberty, and an end to warrantless wiretapping of Americans. Senator Feingold laid out the history of FISA in eloquent terms this afternoon, going back to the 1970s and describing the genesis of this law that has been amended, I might add, many, many times over the last 30 years. It has been amended periodically to conform to the emerging technologies, the emerging abilities of those who would do us harm, and the emerging strategies that would allow us to collect the information that would minimize their ability to do just that. So over the years, this body has been asked to modify that law. Almost without exception, I think it is important to point out, this body has amended that law almost unanimously, because all of us recognize that it is critically important that we have the ability to determine who would do us harm, how they would do that harm, and to stop it before it happens. There is not a single Member of this body who is not deeply committed to that goal. We all understand and are deeply committed to the idea that we ought to do everything we can to protect ourselves. But we also understand, and have since the 1970s, the importance not only of gathering the information from those who would do us injury but simultaneously doing that which is also critical for our survival as a nation; that is, protecting the liberties and rights of this country. They are what makes us unique as a nation. We were really the first Nation that insisted that we were a nation of laws and not men. It was a unique idea in the annals of recorded history; but at the founding of this great Republic, we declared that we were going to do things differently. In fact, many have argued over the years that if we were looking for pure efficiency, this is the last form of government we would have designed. But the Framers of our Constitution were interested in other things than just efficiency. Had efficiency been the goal, they certainly would have thought of a more streamlined system. But they set up a system that not only determined what we did but how we did things: establishing coequal branches of Government--an executive, legislative, and judicial branch--coequal branches of Government, and insisting that there be checks and balances, because the Framers had been through a system in which a king and a handful of people decided the fate of not only their own nation but the colonies they controlled. So they set up this cumbersome, less efficient system because they were deeply determined to protect the rule of law that never allowed one individual or a handful of individuals decide the fate of a nation. So it is important to understand the genesis of this tension which has existed in our country for more than 200 years: protecting our security and protecting our liberties. I am not suggesting that it is always easy to strike the perfect balance, but over the years we have tried as a nation, from one generation to the next, to try to keep that balance, that tension, in place so that not one side or the other would dominate. In our time, the challenge is to balance our need to gather information with the protection of privacy and the rights that all Americans seek, regardless of geography or ideology. That has been the tension that confronts us and that is what brings me to this debate, calling upon my colleagues to support the amendment Senator Feingold is offering to strike title II of this legislation. Retroactive immunity stands against the very principles Senator Feingold has outlined, which I have tried to describe. Under retroactive immunity, the law will forbid some of our fellow citizens from having their day in court. On what basis are we asked to pass retroactive immunity? On trust. There are classified documents, we are told, that prove the case beyond the shadow of a doubt; but, of course, we are in the allowed to see them. I have served in this body for 27 years. Yet I am not allowed to see these documents. Retroactive immunity allows the President to stand up and say: Trust me, I know what I am talking about, and you don't. There is only one way to settle the issue at stake today. Not simply on trust, not the opinion of a handful of individuals--as much as we may admire or like them--but in our courts. We are not judges. We are members of a legislative body. Real judges and juries--whose courts ought to be our pride, not our embarrassment--deserve to do their jobs and decide these cases. By striking this title of the bill, we would allow them to. That is all we are asking. Let's have the courts decide. We are not here to assign guilt or innocence. That is not our job as legislators. We are here to hold open the courthouse door, to ensure a fair hearing to American citizens seeking redress. I, for one, will accept whatever verdict results. This is not a Democratic or Republican issue; this is a rule-of-law issue. It is about striking the right balance between liberty and security. I have absolutely rejected, as I said a few moments ago, the false dichotomy that tells us to choose one over the other. And If a Democratic President were seeking to grant retroactive immunity, I would object as stridently and passionately as I am this afternoon. This should not be a partisan issue. We should all be in favor of allowing our courts to perform their constitutional responsibility to determine whether these companies should be held accountable. I believe that when surveillance is fully under the rule of law, Americans will only be more secure. To claim otherwise is an insult to our intelligence, our common sense, and our proud tradition of law. I don't know how many colleagues have seen the movie called ``A Man For All Seasons.'' It is the story of St. Thomas More, who was the only individual in history that I know of who achieved the trifecta of being a lawyer, a politician, and a saint--a rare combination in any generation. In the movie, St. Thomas More was asked if he would be willing to cut down every law in England to get his hands on the devil. More answered: Absolutely not. He said: When the last law was down, and the Devil turned 'round on you, where would you hide, the laws all being flat? This country is planted thick with laws, from coast to coast-- Man's laws, not God's! And if you cut them down . . . do you really think you could stand upright in the winds that would blow then? Those laws know no secrecy, Madam President, they know no distinctions for power or wealth. They live, that is, in openness. And when that openness has been defended, when the facts are in light, where they belong, I welcome all my colleagues' ideas in the great and ongoing debate on security and liberty in this century--a debate in the open, and open to us all. It can begin by adopting this amendment striking retroactive immunity. We can allow the courts to do their jobs to determine whether what happened was legal. There are those who would argue the telecoms' actions were legal--but none of us know that for sure. If we don't adopt this amendment, we will never know. Whatever happened will be buried for all of history. We will have set the precedent that on the mere word or request of the administration--or any future administration--that telecommunications companies, or others who can collect millions of volumes of data about us, will be allowed to turn it over to the federal government. Maybe the next time it will be medical records or financial records that all of us would like to think are held private--maybe those records, under some argument, will be handed over. When does this stop? When do we say there is a legal means by which we do this? That has been what FISA has tried to establish for the last three decades--to strike that balance between liberty and security. If we set a precedent with the rejection of this amendment, we open the door, regretfully, for not only this administration but future ones to engage in the very practice that would deprive us of that balance between liberty and security. So when the vote occurs tomorrow on this amendment that Senator Feingold and I have offered, I urge my colleagues to step out of their partisan roles and consider the example we are setting. I am also deeply disappointed that the President suggested he would veto the FISA legislation if this amendment passes. The idea that an American President would suggest that we ought to put aside the Foreign Intelligence Surveillance Act merely to protect a handful of companies who seek immunity, and to deny us the opportunity to determine whether what they did was legal, seems to go far beyond what we need to be doing at this hour, where our security is at risk, as we all know. The best way to handle this, in my view, is to accept and adopt this amendment and send the FISA bill to the President for signature. I believe that despite his warnings to the contrary, he will sign this into law. I don't want to believe an American President would put us at risk and deny these courts the ability to grant warrants and court orders to gather the information we need to keep us secure, all to protect a few corporations from lawsuits. I have said this repeatedly over the past several months, but it deserves repeating. Not all the telephone companies complied with that request. If they all had, it might strengthen their arguments. But in the end, this is a Republic: the President cannot order us to break the law. And the argument that orders from on high excuse illegal behavior has been thoroughly debunked. Remember, when one telecom, Qwest, asked for a court order to justify cooperation with the President's surveillance program, it never received one. That ought to be instructive. Why wasn't the court order forthcoming? Why didn't the Administration go to the FISA Courts, which were created exactly for that purpose? Why did some companies say no when others said yes? For all of these reasons, and the ones eloquently posed by Senator Feingold, we urge our colleagues to accept this amendment. Let the courts do their work and determine the legality or illegality of these actions. If we are able to do that, I think we will strengthen our country and come closer to maintaining that balance between security and the rule of law that generations throughout our Nation's history have struggled with, doing their utmost to maintain that healthy balance. To reject this amendment, I think, destroys that balance, does great damage to it. I think we will regret that in the years to come. With that, I yield the floor to others who may want to be heard on this amendment. I suggest the absence of a quorum.

Mr. DODD

Mr. DODD. Mr. President, I come to the floor today to discuss the Banking Committee's action on S. 2062, the Native American Housing Assistance and Self-Determination Reauthorization Act of 2007. Senator Shelby and I agreed to discharge this bill from the Banking Committee, with an amendment, to help move the bill along. This legislation reauthorizes the Native American Housing and Self- Determination Act, NAHASDA, which provides critical funds for housing Native Americans who suffer significant and unique housing problems. According to HUD data, almost one-third of Native Americans have severe housing burdens. They live in overcrowded conditions, lack basic plumbing and utilities, or pay over half of their income for their housing costs. NAHASDA is the primary way that Indian tribes are assisted in addressing these critical housing needs. The amendment drafted by Senator Shelby and I includes a provision to clarify that this bill should not interfere with ongoing court cases regarding funding allocations. I want to acknowledge the contributions of Senators Tester and Enzi in working on this provision. In addition, the amendment helps to retain the requirements that funds be used for those Native Americans in the worst housing situations and that funds continue to be used to increase affordable housing opportunities. I look forward to working with my colleagues to quickly pass S. 2062 as amended.

Mr. DODD

Mr. DODD. As I say, I have already spent over 20 hours on this. And as I say, I have never engaged in extended debate in my 27 years because the matters were handled by others or because we came up with a resolution of issues. But I stand here tonight, as I have over the last several months--as many of my colleagues know, I interrupted a Presidential campaign to come back and spend 10 hours on the floor here when this matter came up in December, to raise my concerns about this issue. I do not want to try the patience of the staff and others, including my colleague who is patiently sitting in the Presiding Officer's chair with little or no relief. So more than 20 hours of making my case here is probably more than most people can tolerate. But I want people to know how much I care about this and how much I wish and hope and pray that this evening, Members, regardless of party, will stand up tomorrow for the rule of law. So tonight, my fervent prayer and hope is that when this vote occurs, first of all, that I will be surprised and that 50 of our colleagues here will join with Senator Feingold and myself and vote to strike this language from the Intelligence Committee bill. That would be the best result of all, and then we can send this bill to the other body and have it resolved and sent to the President, hopefully, for his signature. If that doesn't occur, then I hope 38 others would join Senator Feingold and me in voting against cloture in a historic moment and send this bill back to be revised to comply with the Judiciary Committee's decision excluding the retroactive immunity. That would be the second best result. With that, Madam President, after almost 2\1/2\ hours and the hours before, I yield the floor.

Mr. DODD

Mr. DODD. Mr. President, I rise with my colleague, Senator Collins, along with Senators Biden and McCain, to introduce legislation that reauthorizes the U.S. Fire Administration, USFA. Established in 1974, the USFA provides critical support to 30,300 fire departments across our Nation through training, emergency incident data collection, fire awareness and prevention education, and research and development activities. Each year, the USFA trains approximately one million fire and emergency personnel both at the USFA campus in Emmitsburg, Maryland, and through distance learning programs. The USFA also offers vital assistance to Federal Emergency Management Agency and Department of Homeland Security in the development of Federal preparedness and response policies. The legislation I am introducing today with my colleagues seeks to provide the USFA with proper resources so the agency may effectively meet the growing responsibilities of the fire service in the 21st century. It contains the following provisions. The USFA Reauthorization Act of 2008 provides $70 million in fiscal year 2009 with 1.3 percent annual increases through fiscal year 2012. The bill expands National Fire Academy training curricula to include issues relevant to urban-wildland interface fires, fires involving hazardous materials, and fire-based emergency medical services. The bill also encourages the expansion of onsite fire training, authorizes up to $5,000,000 annually for necessary technology upgrades to the National Fire Incident Reporting System, authorizes the USFA to expand research activities in relevant topics to urban-wildland interface fires, encourages the USFA to adopt national voluntary consensus standards relevant to firefighter health and safety, and requires the USFA to provide greater coordination with other Federal, State and local agencies on fire prevention and fire-based emergency medical services programs. Finally, the legislation establishes a rotating position at the DHS National Operations Center for State or local fire service officials. This new position will bring the expertise of the fire service to the incident management and information sharing activities of the Center. I am pleased to say this bipartisan legislation is supported by the Congressional Fire Services Institute, the International Association of Fire Fighters, the International Association of Fire Chiefs, and the National Volunteer Fire Council. The U.S. Fire Administration performs a critical array of duties that ensure the safety of Americans each day. It is important that we continue to pledge our support to the agency and our Nation's brave firefighters. I look forward to working with my colleagues on this important legislation. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. DODD

Mr. DODD. Mr. President, I rise with my colleague, Senator Collins, along with Senators Biden and McCain, to introduce legislation that reauthorizes the U.S. Fire Administration, USFA. Established in 1974, the USFA provides critical support to 30,300 fire departments across our Nation through training, emergency incident data collection, fire awareness and prevention education, and research and development activities. Each year, the USFA trains approximately one million fire and emergency personnel both at the USFA campus in Emmitsburg, Maryland, and through distance learning programs. The USFA also offers vital assistance to Federal Emergency Management Agency and Department of Homeland Security in the development of Federal preparedness and response policies. The legislation I am introducing today with my colleagues seeks to provide the USFA with proper resources so the agency may effectively meet the growing responsibilities of the fire service in the 21st century. It contains the following provisions. The USFA Reauthorization Act of 2008 provides $70 million in fiscal year 2009 with 1.3 percent annual increases through fiscal year 2012. The bill expands National Fire Academy training curricula to include issues relevant to urban-wildland interface fires, fires involving hazardous materials, and fire-based emergency medical services. The bill also encourages the expansion of onsite fire training, authorizes up to $5,000,000 annually for necessary technology upgrades to the National Fire Incident Reporting System, authorizes the USFA to expand research activities in relevant topics to urban-wildland interface fires, encourages the USFA to adopt national voluntary consensus standards relevant to firefighter health and safety, and requires the USFA to provide greater coordination with other Federal, State and local agencies on fire prevention and fire-based emergency medical services programs. Finally, the legislation establishes a rotating position at the DHS National Operations Center for State or local fire service officials. This new position will bring the expertise of the fire service to the incident management and information sharing activities of the Center. I am pleased to say this bipartisan legislation is supported by the Congressional Fire Services Institute, the International Association of Fire Fighters, the International Association of Fire Chiefs, and the National Volunteer Fire Council. The U.S. Fire Administration performs a critical array of duties that ensure the safety of Americans each day. It is important that we continue to pledge our support to the agency and our Nation's brave firefighters. I look forward to working with my colleagues on this important legislation. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. DODD

Mr. DODD. I move to lay that motion on the table. The motion to lay on the table was agreed to.

Mr. DODD

Mr. DODD. Mr. President, I want to inquire as to how we are to proceed. I was asked to offer my amendment on behalf of myself and Senator Feingold regarding striking the language dealing with immunity in the bill. I don't want to interrupt the debate. I don't know how we ought to proceed. Is this debate concluded? I will check with the author. Mr. President, I ask unanimous consent to set aside the pending amendment so I may offer the Dodd-Feingold amendment dealing with retroactive immunity.

Mr. DODD. Let me inform my colleagues that what I intend to do is not to speak at length. I know under the previous time agreement, there are 2 hours allocated to this amendment. My intention this evening is to use probably 10 or 15 minutes of debate on this amendment. I see my colleague from Washington. I don't know if she has an intention to address the Senate on this matter or something else. I am going to take 10 or 15 minutes to talk about the amendment and then reserve the remainder of my time for tomorrow. There are other Members who would like to be heard on this amendment. I don't want to consume too much of the time to deny others the opportunity to be heard. I presume my colleague from Wisconsin tomorrow may want some time. I will take a brief amount of time this evening and then reserve the balance until later. Then my colleague from Washington can certainly be heard or anyone else for that matter. I send to the desk an amendment offered by myself and Senator Feingold, and Senators Leahy, Kennedy, Harkin, Wyden, Sanders, Obama, Biden, and Clinton and ask for its consideration.

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

Mr. DODD. Mr. President, this amendment we have talked about at length over the last number of weeks going back into December. This is a striking amendment to strike the language in the bill out of the Intelligence Committee that would provide for retroactive immunity to the telecom industry. It has been debated at length. This amendment strikes that language in the bill, conforms it to what has been adopted by the other body in its legislation dealing with the Foreign Intelligence Surveillance Act suggestions and recommendations, and conforms it to what has been included in the Senate Judiciary Committee bill. So while there have been three different committees that have reported their suggestions to the Congress on this issue, the committees in the House of Representatives and one committee here have reached different conclusions than that of the Intelligence Committee, where they have recommended that retroactive immunity be granted to the telecom industry for having kept over the last 5 years sort of a vacuum-cleaner approach to telephone conversations, faxes, e-mails that have been engaged in by Americans across the board. This goes back immediately to after 9/11. As I said, had this been a temporary deviation from the norm, particularly in the wake of 9/11, I would not be standing here asking that retroactive immunity not be granted. But this program went on for 5 years. It only came to an end because of a revelation by whistleblowers and others that the program stop. This was 5 years of collecting data and information on U.S. citizens without a court order. The FISA Court was established back in 1978 specifically to provide for warrants and court orders when such information was being solicited and needed to provide for the security of our country. I think these amendments that we need to update the FISA legislation are critically important, and I certainly want to see them adopted. But I believe it is going way beyond the pale in the midst of all this to extend retroactive immunity back to a group of companies that decided this was an appropriate request and they were going to comply with it. I would point out to my colleagues that not all companies did. If every single company complied with this, you might make the case that there was something going on that required, or certainly warranted, their decision to agree to this invasion of privacy without a court order. There were companies that said: No, we will not comply with that request absent a court order. That court order was never forthcoming and those companies did not engage, to the best of our knowledge, in the collection of this data and information. Now I am not drawing the conclusion--but I have my opinions about this--as to whether what the companies did was legal or illegal. That is not a matter for 51 of us here by a majority vote to decide. That is a matter for which the courts exist in this country. It is not a matter for the executive branch to decide. It is why we have three coequal branches of Government. When matters such as this arise, raising the legality of certain actions, then that matter ought to be appropriately decided by that third coequal branch of Government, as the Framers intended, in exactly these kinds of cases; that is, the matter to determine whether those who are suggesting that these telephone companies did exactly what they should have done under the circumstances. There are many here and elsewhere who believe otherwise, and while short of reaching a determination as to legality, believe that the courts ought to make that determination. There are some 40 cases now pending before the courts on this very matter. If we take the action adopted by the Intelligence Committee, we will never, ever know whether these actions were legal, whether the privacy of millions and millions of Americans were invaded. Once we have set the precedent of allowing this retroactive immunity to go forward, why not then in other areas outside of the case of telecommunications? What about medical records? What about financial records? The Congress will have voted that it is all right to grant retroactive immunity. The next time an American President asks these companies or other companies to engage in similar activities, why not use the precedent established by the telecommunications industry to comply with that request absent a court order? These are critical moments involving the rule of law--the rule of law--not the whim of a President, any President. Given the pattern of behavior of this administration over the last 6 or 7 years, in example after example where there has been a disregard, in my view, of the rule of law and the Constitution of the United States, what more does this body need to understand in this matter than to once again grant this administration a pass and in effect say to those companies: It doesn't make any difference. We don't know whether what you did was legal, but you get a pass on this right now. I think nothing could be more dangerous than to allow that precedent to go forward without us insisting that the courts be allowed to exercise their judgment in these matters. There are arguments that have been raised on why we shouldn't let this happen. One: It might hurt these companies financially. That argument is so offensive I hesitate to make it even on behalf of those who would argue it. The idea that some financial injury is far more important than the rule of law ought to be offensive to every American, whether you agree or disagree with whether these companies did the right thing, or somehow that these companies had no idea what they were doing; they went along with this because an American President asked for it. I would point out that in 1978, during the drafting of the FISA legislation, many of these companies were directly involved in the drafting of that legislation. They knew exactly what the law is in this area. I would further point out that it has been reported to the press that there have been more than 18,000 requests of FISA Courts over the last 30 years when it has come to these kinds of inquiries. In all but 5 cases, out of the more than 18,000 requests, the FISA Courts have complied with executive branch requests for warrants to invade or to engage in surveillance activities. Only in 5 cases were they rejected, out of more than 18,000 requests. That is better than 99.9 percent of the cases. Why not in this one? Why were the courts not solicited to provide the kind of approval for the court orders that would have allowed for this surveillance to go forward? It is not a minor point. It is a huge point. I would further point out that the administration, of course, originally requested that immunity be granted not only to the telecommunications industry but everyone involved in this matter. Thanks to the wisdom of Senator Rockefeller and Senator Bond, that broad request was rejected, and I thank them for it. But it is important that our colleagues understand that that is what they wanted to do; They wanted total immunity for everyone involved in this 5-year plan. But the committee wisely rejected that request and narrowed the immunity only to the telecommunications industry. But nonetheless, I think all of us understand the net effect. If we grant retroactive immunity as requested by this legislation, then we will never get to the bottom of what occurred here, and once again, opening the door to possible future violations. It is being suggested by some: Well, this is just a bunch of Democrats going after a Republican administration. I will tell my colleagues that if this were a Democratic administration, I would be standing here with as much passion as I am today. This is not about Republicans or Democrats, liberals or conservatives; it is about the rule of law. It is about the Constitution of the United States. All of us here, regardless of political ideology or what party we affiliate with, this is a matter that transcends all of that. We ought to--as we have sworn to do when we raised our right hand in the well of this body, as each one of us has here as Members of this institution-- protect and defend the Constitution of the United States. Nothing less than that is being asked of us when we vote on this matter: to strike this provision and allow the courts to do their work; to determine whether, as those who are advocating for retroactive immunity assert, that this was an appropriate and proper response by these companies, or to draw the different conclusion that it was not and that it was inappropriate, illegal, and improper for them to do what they have done; and that all other bodies in this country, private or otherwise, need to understand when this administration or any administration makes a similar request in the future, the Congress has spoken on this matter, so that they do so only when they receive those kinds of court orders and then provide that kind of immunity which, in every single case in the past, they have when the court order has been approved by the FISA Courts. That is the sum and substance of this debate. There are various other arguments for immunity, including the argument that somehow you can't protect private information. As one Federal judge has already pointed out--I might point out a Republican appointee to the bench--what are we all hiding from? We all know this went on. This is not some secret. We all know that for 5 years or more, this information was being vacuumed up. That is no longer a secret. What is potentially a secret is how this was done--methods and means-- and I appreciate those who want to make sure that we don't allow for the revelation of that kind of information. But there are ample examples of how the Federal courts have handled these matters in the past, acting in a way that protects this kind of information. The suggestion that this is too dangerous to allow these matters to go forward I don't think is a valid argument, particularly when you are going to sweep across retroactive immunity. There are plenty of examples. In fact, I would note that the Presiding Officer--I don't know this, but I presume in his previous life as an attorney general-- faced matters in his own State where certain private information had to be kept private and secret and there were matters before the courts before which he operated where that was exactly the case. I have listened to other attorneys general cite examples where there was privacy and other information that did not belong in the public domain and was protected. So the argument that somehow we can't run the risk of allowing the Federal courts to handle these matters given the revelation of information that otherwise shouldn't be in the public domain--I don't buy that argument either. But those are the arguments for having retroactive immunity on this legislation. I have spoken at great length about this in the past and I appreciate the indulgence of the chairman and others to listen to me over and over again on this subject matter. But this is a matter I care deeply about and I know others do too. This is not a Democrat standing up here trying to cause trouble for a Republican administration. That is an offensive argument. I think we know each other well enough to respect and understand that these are serious debates and serious arguments. The tension that has existed for the life of our great Republic is this debate today, how do we protect the rights and liberties of our American citizens and simultaneously protect our people from those who would do us great harm and injury. It is not an easy debate; I understand that. But it is one that is as old as our Republic, to make sure that we maintain those rights and liberties while simultaneously fulfilling that obligation to protect our citizens from those who would do us great harm. I believe the tension is such that I don't believe we want to give up these rights, these important systems we put in place. In fact, the very FISA Courts as they exist were designed to specifically address that balance more than 30 years ago, and I believe on some 30 different occasions over the years we have amended the FISA legislation to allow us to stay current with technologies that could be used against us as well as allowing those technologies that allow us greater opportunity to learn about those who would do us harm. So over the years we have made those recommendations. Almost unanimously--and I believe I am correct in that assessment--previous Congresses have adopted those recommendations and suggestions. To suggest, as was done here, that because of Senator Feingold's amendments dealing with reverse targeting and bulk collections, that somehow we are violating that history, I think is wrong. I think those suggestions are worthwhile and warranted, and it can improve not only what we are doing technologically in this bill, but also fulfilling the second part of that obligation, and that is to protect the rights of our citizenry. It is truly a false dichotomy to suggest that we can only become more secure by giving up rights. I think that is a very dangerous argument to make. Too many in this country are subscribing to it today. That is exactly the opposite of what the case ought to be: that we become more secure when we insist upon those rights and liberties. That has been the history of our great country. In every single example I can think of when we have allowed our rights to be shortchanged to the argument of security, we look back historically and regret those moments. When we think about the internment of Japanese Americans during World War II and other examples, I think all of us look back and regret those moments, if we did anything but give our country more security. We have had great moments when we stood up for the rights and liberties of our fellow citizens in the face of arguments that our security was in jeopardy if we didn't somehow tailor those rights and liberties to give us additional security. I think that is the same argument today. I think we will be a proud body by rejecting this piece of the bill before us, allowing the courts to do their job as the Framers intended them to do, to determine the legality of the actions taken by these companies at the request of this administration, to allow them to make that decision, not by some vote in this body that would allow these matters to be swept aside for all of history without ever knowing whether we did great damage to the rights and liberties of our fellow citizens. I will make additional arguments here tomorrow, but I want to reserve time because here we are on Super Tuesday and a lot of people are not here who want to engage in this debate. So I will reserve the remainder of my time so that others can be heard on this matter when it comes up either tomorrow or whenever the matter comes back to the floor. But I appreciate the managers of this legislation giving me a few minutes to make my case on this issue. I have said so many times before, and I will say again, Jay Rockefeller and Kit Bond are very good friends of mine. I have great admiration for these men. We have served a long time together here. They don't have an easy job. This is a very difficult committee to have to work on, given the difficult matters they are faced with. I am sure they understand that my objections are not about our friendship or my respect for the work they do, but about a fundamental disagreement. I admire what they are trying to do, I respect the job they have been asked to do, and I thank them for it.

Mr. DODD

Mr. DODD. Mr. President, I ask unanimous consent that the period for morning business be extended for 30 minutes, with the time equally divided.

Mr. DODD

Mr. DODD. Mr. President, first of all, let me thank my colleague, Senator Dorgan, for his statement this morning. I wish to follow with very similar remarks. He and I have been good friends for a long time and have worked together on a lot of issues over the years. I just want to underscore what he said this morning about the importance of the stimulus package and the importance of additional ideas that will allow us to get moving again. I am grateful to hear about the article this morning that was very gracious in talking about the bill that Senator Chuck Hagel and I have worked on, along with others, including former Senators Warren Rudman and Bob Kerrey, the Center for Strategic and International Studies, John Hamry, Felix Rohatyn, Bernard Schwartz and other leaders. I am delighted that the Chamber of Commerce as well as major labor unions have endorsed this bill which we spent 2\1/2\ years putting together, including spending a lot of time with people in the investment community about ways in which we can attract private capital to public infrastructure. So I appreciate immensely Senator Dorgan hosting the meeting last Friday that brought a lot of these people together. Our plan here, I say to him, is to talk with our leaders, the Democratic leader as well as, I hope, Senator McConnell, the Republican leader. This ought to be a major issue. If we can bring the Chamber of Commerce and organized labor together around a bill, this is a vehicle which ought to deserve the attention of this body. I know there is a growing interest in the House as well about it for all of the reasons Senator Dorgan has mentioned. The economic implications are huge, and the necessity grows by the hour. But it even goes beyond economic terms because there is symbolism in a nation building and working. In talking to Bob Herbert yesterday, I mentioned that even during the Civil War, President Lincoln insisted that the work on the Capitol, the very building which we are in here this morning, would continue; that it was important, despite that there were obvious demands to provide the resources to prevail in the great conflict between North and South, that the country see that this project, to build a national capitol representing the entire country, would go forward. Obviously, there were jobs that were important in that construction. But more important than the jobs, even, was the symbolism of a nation at work. So I am looking forward to the opportunity to take this idea of a major infrastructure proposal and hopefully attract some broad-based attention to it. My colleague Ron Wyden from Oregon has a proposal as well. We are hoping to bring them together. He has a little different perspective but one that I think can be added to our proposal. I wish to focus my talk this morning about the stimulus package and economic issues. I know the FISA bill is going to come up again. I have some strong feelings, as my colleagues know, about the retroactive immunity in that bill. But I was stunned last evening as I sat and listened to the State of the Union. I have been to a lot of them over the years. Last night, when the Presiding Officer and I walked he asked me how many. When I said the number, it stunned me in a way, how many I have been involved in. I was elected to the House in 1974 and went to my first one in January of 1975, with Gerald Ford giving his State of the Union. I have been to every one since. I have not missed one over the last three decades. There have been some great ones and others less than great. Last evening, put aside whether you like the rhetoric or not, what surprised me is that here we are in a nation where, by everyone's estimation, we are either in a recession or about to enter one, we have economic data that indicate this country is in deeper trouble economically than we have been in in years, and there was hardly any reference to our economic problems whatsoever other than a paragraph or so about a stimulus package. So the elephant in the room, if you do not mind using that animal analogy, the elephant in the room in the State of the Union was, of course, the state of the union is in tough shape economically. We are in desperate shape in many ways. What is beyond ironic is that we would have a President of the United States talking about the condition of our union, and here is a major problem that is the subject of headlines every day across the Nation, and there are hardly any references to it at all. So we were gathered last evening to talk about where we are and what we need to do in the coming days, and there is hardly a passing reference to the economic condition our country is in. The President called this a period of ``economic uncertainty.'' I think those were the words he used. While I agree we are certainly in an uncertain period, to put it mildly, what we know with some certainty is that the current economic situation is more than merely a slowdown or a downturn; it is even more than a mere recession or near recession. Instead, I think it is a crisis of confidence among consumers and investors. Consumers are fearful of borrowing and spending, investors are fearful of lending. Financial transactions which generate new businesses and new jobs are shrinking in number and size by the hour in this country. The incoming economic data shows how serious this problem is. Yesterday the Commerce Department reported that the sale of new homes fell again in December, reaching a 12-year low. Retail sales were down and unemployment was up significantly in December. 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 and other bills. Lastly, inflation increased by 4.1 percent last year, the largest increase in 17 years. This is what the President called a period of ``economic uncertainty.'' You have record numbers and statistics pointing to the difficulty our Nation is in economically, and we hardly heard any mention of it at all last night. The inflation that we are experiencing, is driven mainly by the rising cost of energy--oil is at $100 a barrel--and there was hardly a reference to that last evening. It costs $100 for a barrel of oil, and I do not recall a word being spoken, except about energy independence and to try to get there. Food and health care costs have gone up as well. Industrial production is falling. And we have been hemorrhaging jobs in the manufacturing sector. Our economy is clearly facing more than uncertainty; it is facing significant challenges to our Nation's future economic growth and prosperity. The most important step we could take right now is, of course, to act to restore consumer and investor confidence. Unlike past recessions and slowdowns, the epicenter of this economic crisis is the housing crisis; and the epicenter of the housing crisis is the foreclosure crisis. Housing starts are at their lowest level in more than a quarter of a century. Home prices declined last year nationwide by 6 percent, and are expected to decline again this year. This would be the first time since the Great Depression that the country will have had two consecutive years where home prices have dropped and the President calls this a period of ``economic uncertainty.'' This crisis stems above all from the virtual collapse, as I said a moment ago, of the housing market. That collapse was triggered by what Secretary Paulson has rightly and properly called--and I commend him for it--``bad lending practices.'' Those are his words, not mine. These are lending practices that no sensible banker would ever engage in. Reckless, careless, and sometimes unscrupulous actors in the mortgage lending industry essentially allowed loans to be made that they knew hard-working, law-abiding borrowers would never, ever be able to repay when the fully indexed price kicked in. And they engaged in practices that the Federal Reserve and the Bush administration did absolutely nothing to effectively stop. As a result, foreclosures are at record levels, the value of people's homes is declining, and the tax base for State and local governments is shrinking. A year ago, I chaired the first Housing hearing in the Congress on the subject of predatory lending. I talked then about the possibility that more than 2 million Americans would lose their homes as a result of such lending practices. I know there were those who scoffed when I mentioned the number of 2 million almost a year ago, but no one is scoffing now. Today, foreclosure rates are at record levels. Estimates are that foreclosures will continue to climb for most of this year, dip briefly, and then begin to rise again when interest rate resets kick in. The catalyst of the current economic crisis is, as I said a moment ago, the housing crisis. And the face of the housing crisis is the foreclosure crisis. Therefore, in my view, any short-term stimulus package should include measures that will address the causes and symptoms of the foreclosure crisis head on, as well as trying to provide some immediate relief for those who are dealing directly with this problem. I want to indicate at the outset I am very supportive of the work done by Speaker Pelosi in the House along with John Boehner, the Republican leader, and other Members over there who have worked on this. I thank them for what they have done to formulate outlines of a stimulus package that the administration could support. Senator Baucus, my good friend from Montana and the chairman of the Finance Committee, Senator Harkin, Senator Kennedy and others have expressed some important views regarding unemployment insurance, food stamps, low- income energy assistance, and other important programs. We may not accommodate all of those priority programs, but they bring up a good point; and that is, historically you want to make sure resources get into the hands of the people who are feeling the pinch. For people who still have choices, there may be less than the desired impact by providing a tax break for people in that category, as opposed to those who are at the low-income levels, who are tremendously strapped, that they are provided some relief. So I am confident when the Senate works its will, there will be some additions to the stimulus package, I think, in the unemployment area, certainly, and possibly in low-income energy assistance, and in some food stamp areas as well. In addition to the problems in our housing market, we also have tremendous challenges and opportunities with respect to our Nation's aging infrastructure. In the short term we need to include funding for States and localities to start projects that are already ready to go, including existing highway and transit maintenance projects and other infrastructure projects that can be done quickly. There are a long list of highway and transit projects that are important to creating jobs today and to strengthening our Nation's economic future. These projects will boost employment in the construction and manufacturing sectors, which are those that have been hardest hit in the recent economic downturn. I intend to work for and support an immediate investment in transit, highway and other infrastructure projects. In the long term we need to renew and reinvent our infrastructure. This is no small task, but it is critically important to putting people to work and modernizing the economy for future generations. As I said, I have worked with my colleague, Senator Hagel, in introducing legislation to authorize a National Infrastructure Bank to address some of these challenges, and I look forward to working with him and others in this Chamber to do that. I do not want to overload the stimulus and I realize it is important we act quickly or the value of the package gets lost. Even if it does not include all the things I wish to see in it, it is important we move expeditiously or the value of the timing of it, I think, could be lost on us altogether. It is important we consider some of those suggestions that are being made on a temporary basis. I look forward to working with our colleagues to try to add some additions to the stimulus package. But, hopefully, we can do it in a timely fashion. Specifically, with respect to housing, because this is an area where, again, if we are just dealing with people's problems and not the problem that caused the problems, then I think we are missing a critical point. I want to pick up on some of the things Byron Dorgan talked about a moment ago. Let me add that I am pleased to note there were elements in the proposed House package that address the housing market issues; namely, a temporary increase in the conforming loan limits for the GSEs, and also for the FHA program. I think we ought to be talking about jumbo loans in this area. One of the concerns in the current crisis is that of market liquidity. If you want to get liquidity into this market, then you have to have loan limits that can reach amounts that truly make a difference, even if for only 12 months. So my hope is the administration--however this will work--will set those loan limits to create the desired impact that we are trying to reach, and that is, injecting liquidity into the housing market. Increasing these loan limits will help restore confidence and liquidity into the housing market, where interest rates have skyrocketed for nonconforming loans due to the current problems. These steps will also allow millions of middle-class Americans who live in areas of the country where the value of an average house is far above the existing conforming loan limits to participate and reap the benefits from having a conforming loan. So I would urge these additional loan limits to deal with the problems in the jumbo loan market, at least for a year, be considered. I have supported both of these measures and have also worked very closely with my ranking member on the Banking Committee, Senator Shelby, to draft and pass a more broad FHA modernization bill. That legislation passed this body 93 to 1. We spent a lot of time drafting that bill, and getting strong bipartisan support for it back at the end of last year. I want to acknowledge the assistance of the majority leader, Senator Reid, and Senator Schumer of New York who were very helpful in getting that legislation adopted on the floor with the kind of overwhelming numbers I mentioned a moment ago. I remain dedicated to making this happen. I have spoken with Chairman Barney Frank of the House as late as last evening. We had breakfast together a week ago to talk about how this bill can get done as part of this stimulus package. These are good and needed steps, but we must, I think, go farther. I think this is where Senator Dorgan's remarks come in. If we limit it to a short-term stimulus package, and assume that is going to achieve the desired results, I think you are missing the point and that explains why we have had some negative reaction to the short- term program. It has to be followed on--whether you call it a second or third tranche or effort here--but we need to follow the short-term effort with some longer term decisions and proposals that can go a long way to restoring that sense of confidence and optimism beyond the short-term injection of confidence that is needed if we are going to see our economy improve and opportunities improve in this century. The work of the President and the Congress to right our Nation's economic ship will not end with the enactment of a stimulus package. On the contrary, it will have barely begun. There are other important measures we can and should take to address the problems in the housing market, and I want to briefly address two of them, if I can. In the short term, we need to increase funding for the community development block grant, CDBG, program. The CDBG program has been a very successful program all across the country for many years, and in my view, it can do an awful lot to assist in foreclosure mitigation. It is a tried and true program. We should use it to direct, I would suggest, some $10 billion to local governments to renovate and resell the foreclosed and abandoned homes that are decimating many communities. The mayor of Bridgeport, CT, was in my office last week. He was a newly elected mayor last fall. He told me in the city of Bridgeport-- which is a city of a little less than 100,000--he is looking at 6,000 foreclosed homes in his city. That is 6,000 homes in a city of less than 100,000 residents. Needless to say, even for those homes that are current with their mortgage and in no danger of foreclosure, the value of those homes, and every home, in that city will be adversely affected. Even if there were only 1,000 foreclosed homes it would be a huge number. Imagine if it is six times that in one city in my State, which is the most affluent State in many ways in the country, what it must be like in many other cities throughout my State and the country as a whole. I do not know the numbers in Hartford and Waterbury and other cities, and smaller cities, but 6,000 foreclosures in Bridgeport is a huge number. These are not speculator homes. This is not Las Vegas or Florida or Arizona. These are single-family homes that people are living in, and the idea that 6,000 people and families in that city would be adversely affected ought to cause all of us great pause to ask what can we do creatively and imaginatively to help out. The CDBG program has been very useful over the years in providing mayors and county supervisors and others across the country some help in this area. I think it would be a smart short-term effort. Foreclosed and abandoned homes are devastating--again, I am preaching to the choir as we all know this--to communities around the country. They lead to a cycle of disinvestment and crime in neighborhoods. All of the commensurate problems that emerge with abandoned properties hardly need to be articulated again this morning. We all understand it. The property values and property tax bases all suffer, thereby leading to service cuts and further disinvestment. So CDBG money could provide, I think, some very valuable resources for these communities. Again, we are talking about $10 billion. It is not insignificant, but if we think about the potential good it could do, I think it would be a worthwhile investment. Let me mention another idea. I want to thank the American Enterprise Institute and the Center for American Progress that wrote an op-ed piece on this idea. It is an idea that comes out of both conservative and liberal to moderate think tanks about what to do about foreclosed properties, where you have people living in their homes. This is about a need for a temporary apparatus to mitigate foreclosures. I am working with a proposal to create what is called the Homeownership Preservation Corporation, which was tried actually in the 1930s and worked rather well under similar circumstances. Very basically, this proposal would allow for the purchase of very distressed mortgages either in default or about to go in default. These are single-family homes with people living in them. Again, it is not housing speculators that we are talking about here. What you have already going on is, there are people actually going out buying some of these loans in the hopes they will restore it and sell it at some point down the road. The Homeownership Preservation Corporation idea would allow us, in effect, to form a corporation to do this: buy them at discounted rates, so the lender gets a haircut, but there is still someone paying the note. You get a fixed rate deal, so the homeowner stays in it under terms they can afford to stay in, so you do not have your neighborhoods deteriorating. If it works as well as it could work, I think you actually have a program that has little or no cost to it. What you have done is stabilized these neighborhoods and allowed people to stay in their homes. While everyone suffers to some degree, it also allows us to preserve people's ability to remain in these neighborhoods, remain in their homes. As I said, this was done during the Great Depression very successfully back a number of years ago, at little or no cost to the Government. Under this concept, no one gets bailed out. Everyone shares in the pain of the housing bust. But at the same time, a market-based mechanism is established that can restore confidence to lenders and investors, and give innocent homeowners a chance to save their homes. In the longer term and this is the last point I want to make, we need to end predatory lending practices. I introduced a bill in the fall that will crack down on these practices. Again, there will be ideas that our colleagues will bring to this debate. I do not claim we have captured all the wisdom in this area. But clearly we want to send a message that some of these practices cannot go on any longer. My hope is we will get some strong support again from across the political divides in the country. Fifteen of our colleagues have already cosponsored the bill, and others are welcome to do the same. In addition to the problems in our housing market, we also have tremendous challenges and opportunities with respect to our Nation's aging infrastructure. Again, I thank the Chamber of Commerce and I thank the labor unions who are supporting my bill. I thank Byron Dorgan, people such as Felix Rohatyn, Bernard Schwartz, CSIS, and others for spending the last 2\1/ 2\ years with Warren Rudman, Chuck Hagel, myself, and Bob Kerrey in putting together this proposal of an infrastructure bank. Again, the estimates are that we need $1.5 trillion just to bring our infrastructure up to current levels. Our infrastructure is declining and deteriorating literally as we speak. The definition of infrastructure has changed as well. It is not just the physical infrastructure but human infrastructure as well. The FAA system is in deep need of modernization, or we are going to face some tragedies if we don't understand how important that piece is. There are a wide variety of issues that need to be addressed with infrastructure. Throughout history I think we have all understood the value, economically, to our country that has come from investing in infrastructure. Bob Herbert's article this morning very generously talks about the bill Chuck Hagel and I have introduced. He talks historically about the great canal systems in the Midwest that opened up opportunities for New York, and obviously, the interstate highway system under the Eisenhower administration, and the incredible economic expansion that occurred as a result of those investments. The rural electrification programs that brought electrification to rural areas in the country made a huge difference to people and to our nation. So we invite our colleagues to look at these ideas on how we can expand our efforts to meet our infrastructure needs. It really is an issue that demands the attention of this body. So I offer that idea as well. In conclusion, I think the package the President and House leaders have laid out is a good one. I think it can be expanded on, and it addresses some of the critical areas. More needs to be done. If we don't follow up on the stimulus package with some of these other ideas, I think we will have missed a significant not only opportunity, but I think an important moment in our history to restore that confidence and optimism people are looking for. I yield the floor.

Mr. DODD

Mr. DODD. Mr. President, I thank the manager of the legislation, Senator Rockefeller. Once again, I will say that I have great admiration for the work done by the committee. It is not an easy matter. The Intelligence Committee has serious work to do. Much of what they have done, I agree with. My objections here this afternoon are focused on one aspect of the legislation rather than the cumulative effort the committee has made. Let me address the issue we will be voting on, and that is cloture. That is a critical issue for all of us. Aside from the question of whether I agree or disagree with various amendments, or even the bill, we find ourselves in the midst of a parliamentary nightmare. We have been in this position since late last year, going back to December. So much hinges on this bill. It will set America's terrorist surveillance policy well into the next Presidential term and beyond if a period of 6 years is adopted or even the 4 years suggested by Senator Cardin and others. Depending on the outcome of the debate, this legislation has the power to bring that surveillance under the rule of law or to confirm the President's urge to be a law of his own. It has the power to bring the facts of warrantless spying to light and to public scrutiny, or to lock down those facts as the property of only the powerful. It has the power, obviously, to declare the same law applies to all of us regardless of economic circumstances, well connected or not, or to set the precedent that some corporations are far too rich, far too affluent to be sued, that immunity can effectively not be brought against them. Wherever you come down on these choices--and I know there are those of us who have different opinions--you certainly cannot be neutral, in my view. None of us can be neutral on a matter such as this. This is one of the most important and contentious pieces of legislation we will debate in this session, and I argue any session of Congress, and yet the Senate is frozen today. I objected passionately to retroactive immunity, but I did not shut out debate. Republicans have frozen this body since debate began, not only last week but going back further, and they unwittingly created a perfect microcosm of retroactive immunity right here in this body. Because both flow from the same impulse: shutting down the organs of Government--in this case, the legislation, the courts, and now, because of the procedural nightmare we find ourselves in, the Senate--when you are afraid, of course, you will not get your way. That is why President Bush wants his favored corporations saved from lawsuits, it appears. That is why the minority party wants this bill saved from any and all amendments, saved from serious and thoughtful discussion. As a committee chairman myself, as I pointed out the other day, I wish I had the privilege being requested by the minority. I sometimes wished the bills we passed out of committee would have swept out of this body when I came to the Senate floor without a single amendment. That is not how this body works. It was never intended to work that way. It is certainly not the way the Founders intended it to work. Amendments are not entitled to pass, but they are entitled to a fair hearing, a fair debate, and a fair vote. The minority can object as strenuously as it wants, but it must do so fairly. I accept that principle, even when it does not go my way; even on immunity itself, I understand a minority cannot stand forever. Is it too much for Republicans to extend the same courtesy? On a bill as important as this one, it would be ridiculous to curtail debate, shut out new ideas, or rush to a conclusion without even extending the Protect America Act for a month to give us the time we need. Whether you agree with them or not--and some I disagree with myself--the amendments offered by my Democratic colleagues are serious proposals and deserving of serious consideration. Shouldn't we debate whether this new surveillance regime ought to stay inflexible through the next Presidential term and into the one after that? Shouldn't we debate whether we are going to categorically outlaw unconstitutional reverse targeting or indiscriminate vacuum cleaner bulk collection? Shouldn't we debate whether Congress even gets to see the secret rulings of the FISA Court? Those are some of a few of the well-intentioned proposals we need to consider before we vote on this bill. But across the board, the Republican answer to those questions is absolutely not, in every single instance: No debate, no votes. I disagree, and I will vote against cloture because we haven't done our job yet. I will also vote against cloture because I cannot support the bill as it now stands, as my colleagues know. First, the legislation still contains some egregious provisions for corporate immunity. I already made my objection to immunity many times over the last number of days. It puts the President's chosen few above the law, in my view; it endorses possibly illegal spying on Americans; and it strikes a harsh blow against the rule of law. I will continue to fight retroactive immunity with all the strength any one Senator can muster. But I also strongly object to many of the intelligence-gathering portions of the bill, as well as supporting many of them that have been included. This bill reduces court oversight of spying nearly to the point of symbolism. It would allow the targeting of Americans on false pretenses. It opens up new twisted rationales for warrantless wiretapping, which is exactly what it ought to prevent. It could allow bulk collection of communications of millions of Americans as soon as an administration, whether this one or future one, has the wherewithal to build such an enormous dragnet, and it sets all of these deeply flawed provisions in stone for 6 years, depriving us of the flexibility we need to fight terrorism. For all of those reasons, as well, I will vote against cloture later this afternoon. Tonight, the President will come to Congress to speak to us and to the American people about the state of our Union. I hope he will use that opportunity to realize the Senate needs more time to do its constitutional duty to debate and consider this important legislation. However, I am concerned that he will instead continue to threaten to veto this legislation unless it includes retroactive immunity for the telecommunications industry. The President has said this bill is essential to ``protecting the American people from enemies who attacked our country.'' That is a quotation. So why is he trying to stop it? Why is he promising to veto it? Why is he throwing it all away to protect a few corporations from lawsuits? I fear that if we give this President what he wants, we risk weakening the rule of law and placing the rights of some of the President's favored corporations over the rights of ordinary American citizens. I hope my colleagues will join with those of us who oppose cloture today on the substitute amendment to allow the Senate the time it needs to debate and improve the FISA Amendments Act. This issue is far too important for the security of our Nation and to our civil liberties to do otherwise. As we all know, as I have stated over and over, this is historic tension that dates back to the founding of our Republic, of keeping us safe from those who would do us harm, and protecting the rights and liberties of American citizens. It has been a tension that has been debated and argued for more than 200 years, and the adoption of the FISA legislation three decades ago created the means by which that balance could be struck, allowing us to do what is necessary to protect us against those who would do us harm while simultaneously guaranteeing those rights and liberties we enjoy as Americans would be protected in these circumstances. It is a critical point to maintain that balance. My fear is this legislation, particularly with retroactive immunity, upsets that balance significantly. As I said before, and I will repeat in closing, had this been a few months, even a year in the wake of 9/11, had this administration had a record of by and large supporting the rule of law, I would not stand here and demand that we not include retroactive immunity under those circumstances. But there has been a pattern of behavior by this administration from the very outset. We now know these warrantless wiretaps began in January or February of 2001, not in the wake of 9/11. So even prior to the tragic events of September 11, 2001, this administration had begun a pattern of seeking warrantless wiretaps on average American citizens without the court orders provided for under the Foreign Intelligence Surveillance Act. Of course, it went on for 5 years and would still be ongoing were it not for a whistleblower in a report in a major American newspaper uncovering this program. This went on for 5 long years amidst a pattern of behavior by this administration. I do not think I need to necessarily enumerate the examples of that pattern, beginning with Abu Ghraib, secret prisons and rendition, habeas corpus, the U.S. Attorney's Office, and the list goes on and on. I cannot undo those mistakes, but they are more than just mistakes. They are tragic examples of this administration's trampling all over the rule of law. What we can do this evening and what we can do in the coming days, collectively, Democrats and Republicans, is pass a FISA bill, much of which is included in the work of Senator Rockefeller and Senator Bond. There will be some objections, obviously, to some amendments that will be offered, but to get our work done, pass this legislation, and move on to other business. The issues are far too important to leave them otherwise. I thank, again, Senator Rockefeller for giving me some time and urge our colleagues to vote against the cloture motion when that moment occurs. I yield the floor.

Mr. DODD

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

Mr. DODD

Mr. DODD. Mr. President, I rise this morning to continue the debate and discussion on the Foreign Intelligence Surveillance Act. Let me underscore the point that Majority Leader Reid and others have made. I listened carefully to the comments of Senator McConnell, the distinguished Republican leader. I have served in this body for more than a quarter of a century now, and it is unfortunate that we seem to have come to a point where not as much is happening as should be happening, in my view. I brought committee products to the floor on many occasions, and I am sort of envious of the remarks of the Senator from Kentucky--because as a committee chairman, I love nothing more than to bring a product out of my committee. Many times I brought them out with unanimous votes, only to have to spend days here on the floor as amendment after amendment was being offered to change, in some cases dramatically, the substance of our bill, which we had worked on for weeks and months and years in some cases. So it is a new idea here to just accept committee product and say the other 90 or 85 Members should respect the work of our colleagues, and acknowledge that and pass the legislation as if we had all had some input here. That is unique and, I suppose, an idea that most of us would like to embrace at one point or another. But this is the Senate. This is not an operation that runs by fiat. This institution has an historic responsibility. In this institution, every single Member has the opportunity to express themselves, not only rhetorically for unlimited amounts of time, but also with the ability to contribute to the policy products we frame. To suggest that other Members, including members of a committee that had commensurate jurisdiction, the Judiciary Committee, ought to be excluded from adding their thoughts and ideas, is ridiculous. Even members of both Committees, Judiciary and Intelligence, are excluded, such as Senator Feingold. It was his amendment, as a member of both of these committees, that the Republican leadership would not even consider debating or acknowledging with a vote. So that is unique in any regard. Anyone who has observed this institution for more than an hour--or less--understands how this works. So the idea that we should accept this bill because the President will sign it, is nice to hear, but I have been around long enough to know that Presidents will sign things they did not think they would in time, and particularly if we can add some thoughts that Members have. I do not want to dwell on the procedural aspects of all of this, but I wanted to underscore the point that Senator Reid, our leader, the majority leader, made this morning, on the unique idea that Members who have substantive ideas and thoughts and amendments should somehow stick them back in their pockets, accept the product of the Intelligence Committee and go home, because the President will sign that bill. I will be anxious to raise the argument in future dates when I bring a bill to the floor and I find that the Republican leadership is going to offer some amendments to my ideas, reminding them of their eloquence in suggesting a different approach to the Foreign Intelligence Surveillance Act. Last night, we saw into the heart of the minority's priorities. Since last month, day after day, opponents of retroactive immunity have been warning about its underlying motive: shutting up the President's critics. Pass immunity, we have said, and the debate will be shut down, the critics will be shut up, and the actions of the President's favored corporations will be shut in the dark for good. Last night, we saw the mindset of the minority. Several of my Democratic colleagues have brought to the floor their carefully prepared amendments, many of which do their part to right the balance between security and civil liberties. The Cardin amendment, which would allow us to revisit the bill in 4 years instead of 6, not exactly a frightening proposal. It would be a simple debate; we could decide if he's right or wrong--make your case either way. I happen to believe he is right. Amendments from Senator Feingold prohibiting the dangerous and possibly unconstitutional practice of reverse targeting and bulk collection. The Leahy amendment, requiring the inspectors general of the Director of National Intelligence and the Department of Justice and the National Security Agency to investigate possible illegal domestic spying. The Feinstein- Nelson amendment allowing the FISA Court to determine whether immunity should apply to the telecommunications companies; and several more amendments as well. These are all very serious amendments. The Presiding Officer himself has one of these amendments. Some of them I support, others I would probably end up opposing. Nonetheless, I acknowledge the seriousness of their proposals. I am concerned, however, about amendments that expand the authority of the FISA Court beyond what Congress intended when it originally passed FISA. While I respect the motives behind such proposals, Congress needs time to fully consider their implications. Further, I am concerned that such proposals put excessive power in the hands of a secret court whose members are all appointed by one individual. In other words, I am concerned this is yet another concentration of power, the implications of which we don't fully understand and ought to consider carefully. Yes, secrecy is necessary at times in the life of every nation. But it is a bedrock principle that democracy should always err on the side of less secrecy. For that reason I believe cases against the telecoms are best handled in our standard Federal courts--which, by the way, have shown time and time again that they know how to protect State secrets. None of that is the real issue this morning. Whether you agree with any of these proposals or not, each amendment deserves consideration. Senators are not entitled to see their amendments agreed to, but they are entitled to this: a good-faith debate, honest criticism, and, ultimately, a vote on their ideas. Last evening, they didn't get that. Our Republican colleagues, assuming they would lose those votes, effectively shut down the work of the United States Senate. In the words of the cliche, they have taken their ball and run home. I don't think that is far off base, in seeing in this egregious shutdown a parallel to retroactive immunity itself. Both attitudes privilege power over deliberation, over consensus, over honest argument. Like immunity, pulling these amendments down shows a contempt for honest debate and a willingness to settle issues in the dark, in the back rooms, rather than in the open, where the law lives, where the American people can see it. President Bush wants to shut down the courts whose rulings he doesn't like. Last night, Senate Republicans showed when they don't like the outcome of a debate, they shut down that as well. It is one thing for a President to express that kind of contempt for the process of legislation. It is yet another for the coequal Members of this legislative branch to express it themselves. I have spoken repeatedly about the rule of law. The rule of law is not some abstract idea. It is here with us. It is what makes this body run and has for more than two centuries. It means we hear each other out. We do it in the open. And while the minority gets its voice, its right to strenuously object, the majority ultimately rules. Standing for the rule of law anywhere means standing for it everywhere--in our courts and in the Senate. The circumstances are different, of course, but the heart of the matter is the same. Last evening, I believe the Republican Party forfeited its claim to good faith on this issue. They are left to stake their case on fear. Whether that be enough, the next few days will tell. But I want to talk about the issue of the underlying bill, the substance of it. As my colleagues here know, I care deeply and passionately about several aspects of this bill. Again, I have great respect for the work it takes to strike the balance between the need for have surveillance of those terrorists who would do us great harm, and the protection of civil liberties, rights, and the rule of law. It is not an easy balance. I will be the first to acknowledge that the tension between those two goals has been an ongoing tension since the founding of this Republic. It is not just new since 9/11. It goes back to the very first days of our Republic. In fact, James Madison spoke eloquently about the tensions in civil liberties and rights and, with a great deal of prescience, recognized that it is usually threats from outside our country that have the most influence on endangering the rights and liberties we embrace at home. He acknowledged that more than two centuries ago. So the debate we are engaged in today is a historic one, historic in the sense that it has been ongoing. No Member of this Chamber wants to sacrifice the security of our country, and my hope is that no Member of this body wants to sacrifice our liberties and rights either. I want to believe that very deeply. While we are debating how best to do that, my fear is that we are about to adopt legislation that will deviate from a 30-year history of actually achieving that sense of balance, by and large with the almost unanimous support of Members who have served here during that 30-year period. I spoke yesterday about a crime that may have been committed against millions of innocent Americans: their phone calls, their faxes, their e-mails, every word listened to, copied down by Government bureaucrats into a massive database. I spoke about how our largest telecommunications companies leapt at the chance to betray the privacy and the trust of their own customers. That spying didn't happen in a panic or short-term emergency, not for a week, a month, or even a year. It went on relentlessly for more than 5 years. If the press had not exposed it, it would be going on at this very hour. This was not a question where a program started up and someone realized they had done something wrong, shut it down, and we discovered it later. This program has been ongoing and would have been ongoing arguably for years had the New York Times and a whistleblower not stepped forward to acknowledge its existence. We saw how President Bush responded when this was exposed--not by apologizing, not even by making his best case before our courts, but by asking for a congressional coverup: retroactive immunity. He asked us to do it on trust. There are classified documents, he says, that prove his case beyond a shadow of a doubt, but, of course, we are not allowed to see them. I have served in this body for 27 years, and I am not allowed to see these documents! Neither are the majority of my colleagues. And when we resist his urge to be a law unto himself, how does he respond? With fear. When we question him, he says we are failing to keep the American people safe. Shame on the President and shame on these scare tactics. I have promised to fight those tactics with all the power any one Senator can muster, and I am here today to keep that promise. For several months I have listened to the building frustration over this immunity and this administration's campaign of lawlessness. I have seen it in person, in mail, online--the passion, the eloquence of average citizens who are just fed up with day after day, week after week, month after month, year after year of this administration, in one case after another, trampling all over the basic rights of American citizens. They have inspired me more than they know, these citizens who have spoken up. But almost every time telecom immunity comes up, there is the inevitable question: What is the big deal? Why are so many people spending so much energy to keep a few lawsuits from going forward? Because this is about far more than the telecom industry. This is about a choice that will define America--the rule of law or the rule of men. It is about this Government's practice of waterboarding, a technique invented by the Spanish Inquisition, perfected by the Khmer Rouge, and in between banned--originally banned for excessive cruelty even by the Gestapo. It is about the Military Commissions Act, a bill that gave President Bush the power to designate any individual he wants as an unlawful enemy combatant, hold him indefinitely, and take away that individual's right to habeas corpus, the centuries-old right to challenge your detention. It is about the CIA destroying evidence of harsh interrogation--or, as some would call it, torture. It is about the Vice President raising secrecy to an art form. The members of his energy task force? None of your business, we are told. His location? Undisclosed. The names of his staff? Confidential. The visitor log for his office? Shredded by the Secret Service. The list of papers he has declassified? Classified. It is about the Justice Department turning our Nation's highest law enforcement offices into a patronage plum and turning the impartial work of indictments and trials into the machinations of politics. It is about Alberto Gonzales coming before Congress to give testimony that was at best wrong and at worst perjury. It is about Michael Mukasey coming before the Senate and defending the President's power to break the law. It is about extraordinary renditions and secret prisons. It is about Maher Arar, the Canadian computer programmer who was arrested by American agents, flown to Syria, held for some 300 days in a cell 3 feet wide, and then cleared of all wrongdoing. It is about all of that. We are deceiving ourselves when we talk about the torture issue or habeas issue or the U.S. attorneys issue or the extraordinary rendition issue or the secrecy issue. As if each one were an isolated case! As if each one were an accident! We have let outrage upon outrage upon outrage slide with nothing more than a promise to stop the next one. There is only one issue here--only one--the law issue. Attack the President's contempt for the law at any point, and it will be wounded at all points. That is why I am here today. I am speaking for the American people's right to know what the President and the telecoms did to them. But more than that, I am speaking against the President's conviction that he is the law. Strike it at any point, with courage, and it will wither. That is the big deal. That is why immunity matters--dangerous in itself but even worse in all it represents. No more. No more. This far, Mr. President, but no further. More and more Americans are rejecting the false choice that has come to define this administration: security or liberty but never, ever both. It speaks volumes about the President's estimation of the American people that he expects them to accept that choice. The truth, I would say, is that shielding corporations from lawsuits does absolutely nothing for our security. I challenge the President to prove otherwise. I challenge him to show us how putting these companies above the law makes us safer by one iota. That, I am convinced, he cannot do. The truth is that a working balance between security and liberty has already been struck. It has been settled for decades. For three decades, 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, Republicans and Democrats, determined to investigate executive abuses of power. Unsurprisingly, they found that when Congress and the courts substitute ``trust me'' for real and true oversight, massive law breaking 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 opened hundreds of thousands of Americans' letters without warning or warrant. In sum, Americans had sustained a severe blow to their fourth amendment right 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 is not the problem: unchecked, unregulated, unwarranted surveillance was. What surveillance needed, in a word, was legitimacy. In America, as the Founders understood, power becomes legitimate when it is shared; when Congress and the courts check the attitude which so often crops up in the executive branch: If the President does it, it is not illegal. The Church Committee's final report, ``Intelligence Activities and the Rights of Americans,'' puts the case powerfully. Let me quote, if I can, from that report. The Church Committee--Republicans and Democrats--said: 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. . . . The report further states: 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. That report is more than 30 years old. But couldn't those words have been written this morning? We share so much with the Senators-- Republicans and Democrats--who wrote them. We share a nation under grave threat--in their case, from communism and nuclear annihilation; in ours, from international terrorism. We share, as well, the threat of a domestic spying regime that, however good its intentions, finally went too far. Senators in my lifetime have already faced this problem, and I believe their solution stands: The power to invade privacy must be used sparingly, guarded jealously, and shared equally between all three branches--all three branches of Government. 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 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 over the last three decades, FISA has accomplished its mission. It has been a valuable tool--a tremendously valuable tool--for conducting surveillance of terrorists and those who would harm our country. Every time Presidents have come to Congress openly to ask for more leeway under FISA, Congress has worked with them; Democrats and Republicans have negotiated; and together, Congress and the President have struck a balance that safeguards America while doing its utmost to protect privacy. This summer, Congress made a technical correction to FISA, enabling the President to wiretap, without a warrant, conversations between two foreign agents, even if those conversations are routed through American computers. For other reasons, I felt this summer's legislation went a bit too far, and I opposed it. But the point is that Congress once again proved its willingness to work with the President on FISA. Shouldn't that be enough? Just 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 that, in a true emergency, the FISA Court could do nothing to slow down intelligence gathering. Shouldn't that be enough? And as for the FISA Court? Between 1978 and 2004, according to the Washington Post, the FISA Court approved 18,748 warrants--18,748 warrants. It rejected five, between 1978 and 2004. Let me repeat the numbers. They granted 18,748 warrants, and rejected 5 of them over that almost 30-year period. The FISA Court has sided with the executive 99.9 percent of the time. Shouldn't that be enough? One would think so. Is anything lacking? Have we forgotten something? Isn't all of this enough to keep us safe? It took three decades, three branches of government, four Presidents, and 12 Congresses to patiently, painstakingly build up that machinery. It only took one President to tear it down. Generations of leaders handed over to President Bush a system that brought security under the law, a system primed to bless nearly any eavesdropping he could possibly conceive or think of. And he responded: No, thank you; I'd rather break the law. He 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. And he still has not given us a good reason why. He still has not shown how his lawbreaking makes us safer. So I am left to conclude that, to this President, this is not about security. It is about power: power in itself, power for itself. I make that point not to change the subject, but because I believe it solves a mystery. That is: Why is retroactive immunity so vital to this President? The answer, I believe, is that immunity means secrecy; and secrecy, to this administration, means power. It is no coincidence that the man who declared ``if the president does it, it's not illegal''--Richard Nixon--was the same man who raised executive secrecy to an art form in an earlier generation. The Senators of the Church Committee expressed succinctly the deep flaw in the Nixonian executive. I quote from them: ``Abuse thrives on secrecy.'' And in the exhaustive catalog of their report, they proved it. This administration shares a similar level of secrecy, and a similar level of abuse, I would add. Its push for immunity is no different. Secrecy is at its center. We find proof in their original version of retroactive immunity. Remember, this was their idea: a proposal not just to protect the telecoms but everyone involved in the wiretapping program. That is what they sought of the Intelligence Committee. Everyone involved in that program was to be protected. In their original proposal, that is, they wanted to immunize themselves. Think about that. It speaks to their fear and, perhaps, their guilt: their guilt that they had broken the law, and their fear that in the years to come they would be found liable or convicted. They knew better than anyone else what they had done. They must have had good reason to be afraid. Thankfully, immunity for the Executive is not part of the bill before us. But the original proposal--the original proposal--to immunize everyone involved ought to be instructive to Members here. Why did they seek such broad authority to immunize every individual? Why? What was behind that proposal? This is, and always has been, a self-preservation bill. Otherwise, why not have the trial to get it over with? If the President believes what he says, the corporations would win in a walk. After all, in the administration's telling, the telecoms were ordered to help the President spy without a warrant, and they patriotically complied. Read Justice Robert Jackson's briefs after Nuremberg. The 21 defendants at Nuremberg made that case, that they were only complying with orders they were given. And the court in the Nuremberg trials, in 1945, rejected that argument. Robert Jackson reminded us, in subsequent decisions he handed down as a Supreme Court Justice, that that argument, ``we were ordered to do it,'' is not a legitimate defense when you know what you are doing is wrong. And when you hear the President's story, ignore for a moment that in America we obey the laws, not the President's orders. Ignore that the telecoms were not unanimous; one, Qwest, wanted to see the legal basis for the order. They never received it, of course, and so they refused to comply. Ignore that a judge presiding over the case ruled that--and I quote--``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, 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 five 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. The Federal court system has dealt for decades with the most delicate national security matters, building up expertise in protecting classified information behind closed doors--ex parte, in camera. We can expect no less in these cases, as well. No intelligence sources need to be compromised. No state secrets need to be exposed. And after litigation at both the district court and circuit court level, no state secrets have been exposed. In fact, Federal District Court Judge Vaughan Walker, a Republican appointee, I might add, has already ruled that the issue can go to trial without putting state secrets in jeopardy. Judge Walker reasonably pointed out that the existence of the President's surveillance program is hardly a secret at all. I quote from him. He stated: The government has [already] disclosed the general contours of the ``terrorist surveillance program,'' which requires the assistance of a telecommunications provider. That is from Judge Walker. 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. That is Republican appointee Vaughan Walker speaking to the administration. He further goes on to say: 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. That ought to be the epitaph of this administration: sacrificing liberty for no apparent enhancement of security. Worse than selling our soul, we are giving it away for free. The President is equally wrong, I would suggest, 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, FISA has compelled telecommunications companies to cooperate with surveillance when it is warranted. And what is more, it immunizes them. It has done that for more than 25 years. So cooperation in warranted wiretapping is not at stake today. Collusion in warrantless wiretapping is. And the warrant makes all the difference, 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. The conclusion, I again repeat, is clear: The only thing that stands to be exposed if these cases go to trial is the extent of the President's lawbreaking, of the administration's lawbreaking. That, he will keep from the light of a courtroom at all costs. This is a self-preservation bill. And given the lack of compelling alternatives, I can only conclude that self-preservation--secrecy for secrecy's sake--explains the President's vehemence. Well, you might say, he will be gone in a year. Why not let the secrets die with this administration and start afresh? Why take up all the time on this matter? Because those secrets never rightfully belonged to him. They belong to history, to our successors in this Chamber, to every one of us. Thirty years after the Church Committee, history repeated itself. If those who come after us are to prevent it from repeating again, they need the full truth. We need to set an unmistakable precedent. Determining guilt or innocence belongs to the courts, not to 51 Senators who may carry the day by a vote here, or the President, for that matter--that is what the courts are for. Lawless spying will no longer be tolerated. And, most of all, the truth is no one's private property. Which brings us, unfortunately, to economics. Because once the arguments from state secrets and patriotic duty are exhausted, immunity's defenders make their last stand as amateur economists. Here is how 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. To begin with, that is a clear exaggeration. We are talking about some of the wealthiest, most successful companies in America. Let me quote an article from Dow Jones MarketWatch. The headline reads: ``AT&T's third-quarter profit rises 41.5 percent.'' I will quote the article: AT&T, Inc. on Tuesday said third-quarter earnings rose 41.5 percent, boosted by the acquisition of BellSouth and the addition of 2 million net wireless customers. . . . Net income totaled $3.6 billion . . . compared with $2.17 . . . a year ago. I should note that AT&T has posted these record profits at the same time of this very public litigation. Now, granted, that is only one quarter, and I understand that AT&T's most recent earnings aren't as large as the ones I have just quoted; but I think the point still stands. A company of that size, capable of posting a $3 billion quarter, couldn't be completely wiped out by anything but the most exorbitant and unlikely judgment. To assume that the telecoms would lose and that their judges would hand down such backbreaking penalties is already taking several leaps. The point, after all, has never been to financially cripple our telecommunications industry; the point is to bring checks and balances back to domestic spying. Setting that precedent would hardly require a crippling judgment. It is much more troubling, though, that the Director of National Intelligence has begun talking like a stockbroker, pronouncing on ``liability protection for private sector entities.'' How does that even begin to be relevant to letting the case go forward? Since when did we throw out entire lawsuits because the defendant stood to lose too much? Translate the point into plain English, and 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. I have rarely in public life heard an argument as venal as this one. But this administration would apparently rather protect the telecoms than the American people. In one breath, it can speak about national security and bottom lines. 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. So at the rock bottom of its justifications, the administration is essentially arguing that immunity can be bought. The truth is exactly the opposite, in my view. The larger the corporation, the greater 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, the President and the telecoms have engineered one of the most massive violations of privacy in American history. A violation such as that would be inconceivable without the size and resources of a corporate behemoth behind it. If reasonable search and seizure means opening up a drug dealer's apartment, the telecoms' alleged actions would be the equivalent of strip-searching everyone in the building, ransacking their bedrooms, and prying up all the floorboards. That is the massive scale we are talking about, and that massive scale is precisely why no corporation must be above the law. Ultimately, that is all I am asking--not a verdict of guilty or innocent. I have my own views, but I don't have a right to pronounce those views. That is why there is something called the third branch of Government. It is called the courts--the courts. A simple majority of this body doesn't get the right to decide the guilt or innocence in this particular case. But when the day in court comes, I have absolutely no investment in the verdict either way. Just as it would be absurd for me to declare the telecoms clearly guilty, it would be equally absurd to close the case today without a decision. But their day in court, as far as I am concerned, is everything. Why? Because surveillance demands and deserves legitimacy, and the surest way to throw legitimacy away is to leave all of these questions hanging. Few things are as vital to our national security as giving domestic surveillance the legitimacy it deserves and needs to sustain public support. Because ``the threat to America is not going to expire.'' ``Staying a step ahead of the terrorists who want to attack us'' is ``essential to keeping America safe.'' In the end, ``Congress and the President have no higher responsibility than protecting the American people from enemies who attacked our country and who want to do it again.'' Those aren't my words; they are George Bush's words. He says all of this, yet he says he will veto the entire bill--this vital bill, this bill which is essential to protecting our very lives--all to keep a few corporations safe from lawsuits. There, at last, as honest as you will ever hear them, are this President's true priorities: secrecy over safety, favors over fairness. Marry those priorities to a contempt for the rule of law, and the results have been devastating. I don't have to repeat them. They aren't secret anymore. No, Mr. President we can't go back. We can't un-pass the Military Commissions Act. We can't un-destroy the CIA's interrogation tapes. We can't un-speak Alberto Gonzales's disgraceful testimony. We can't un- torture those who have been apprehended and held wrongfully. We can't undo all this administration has done in the last 6 years for the cause of lawlessness and fear. But we can do this: We can vote down this immunity. We can do this: We can grab hold of the one thread left to us here and pull until the whole garment unravels. We can start here. And why not here? Why not today? Why not provide for the protections we need, the surveillance we need, but without this grant of immunity? It is unwarranted, it is unneeded, it is unfair, it is wrong, and it is dangerous. So, on Monday, I hope my colleagues will reject the motion on cloture, allow these amendments to go forward, allow us to have a debate and a discussion, and then send a clean bill to the President-- one that enhances our security and protects our civil liberties. Mr. President, I yield the floor.

Mr. DODD

Mr. DODD. Mr. President, I had earlier this morning intended to spend a few minutes talking about the stimulus package that was at least agreed to between the leadership of the other body and the administration, a matter that will be coming here and the Senate will have an opportunity to express its will on that matter. But I wanted to speak on it for a moment, at least as Chairman of the Senate Banking Committee that will have at least a small part of that discussion, because of the inclusion of the FHA proposals as well as the loan limits within the GSEs, which I commend the administration for including. These are critical elements. We must, of course, deal with people's problems. But is something else again to deal with the problems that have caused people's problems. In my view, the deeper problem is the foreclosure crisis. That is the underlying issue, in my view, and therefore to have dealt with a short-term stimulus package that did not include some measures and steps that would address the housing issue and the foreclosure issue would have been shortsighted. So I was pleased to see that in addition with some rebates and refundable tax assistance, even to those who have very limited incomes, as well as assistance to those with young children and families. All are wonderful ideas. I know Senator Baucus, who will have the bulk of the responsibility in the Finance Committee for dealing with this, along with others who want to add elements of dealing with such things as unemployment insurance or food stamps or low-income energy assistance and the like, will have some additional thoughts on this short-term package. But I felt it was important to express some optimism about the direction it is going in and to note how important it is for consumers and investors to begin to have their confidence restored.

Mr. DODD

Mr. DODD. Absolutely.

Mr. DODD. Mr. President, I thank both my colleague from Vermont, the chairman of the committee, and the Senator from Pennsylvania as well. I arrived in this body in January of 1981 with a very engaged Senator from Pennsylvania as a new Member that day in January of 1981. The Senator from Vermont had already been here for a term. They do a tremendous job, and their voices are worth listening to on matters affecting civil liberties and the rule of law. I spoke at some length last evening and back in December on the issue of the Foreign Intelligence Surveillance Act amendments and what I consider to be the most egregious provision in the Intelligence Committee bill: retroactive immunity for the telecommunications companies that may have helped this administration break the law. I have objected to that immunity on very specific grounds because it would cover an immense alleged violation of trust, privacy, and civil liberties. But even more importantly, immunity is wrong because of what it represents: a fatal weakening of the rule of law that shuts out our independent judiciary and concentrates all the power in the hands of one branch--the executive branch. We know there has been a pattern of behavior over the past 6 or 7 years. As I said last evening on this floor, had this been the first instance of an administration overreaching, candidly, I would have had some difficulty in objecting to the Intelligence Committee's proposal. If the alleged violation had been limited to a period of a few months, 6 months, a year even after 9/11, I might not have objected. But all of us in this Chamber know there has been a 6 or 7 year pattern of this administration's abuses against the rule of law and civil liberties. And this alleged violation went on not for 6 months or a year but for 5 years--and it would still be ongoing today had it not been for a whistleblower in an article in a major publication, which revealed this program's ongoing activities to literally vacuum--and I am not exaggerating when I say ``vacuum''--every telephone conversation, fax, and e-mail of millions of people in this country. I would object to retroactive immunity not just in this administration but in any administration, Democratic or Republican, that sought immunity to this extent, that sought to concentrate such power in the hands of the executive branch. The Founders of this great Republic strenuously argued for a process that concentrates power not in one branch but provides a balance of that power, a tension, if you will, between the judicial, the legislative, and the executive branches. To grant such power to one branch, as this bill seeks to do, is a dangerous step. And it would be no matter which administration requested it. The Foreign Intelligence Surveillance Act, as we have seen, was written precisely to resist that concentration. When we divide power responsibly, terrorist surveillance is not weakened; it is strengthened, Mr. President, made more judicious, more legitimate, and less subject to the abuse that saps public trust. I firmly believe any changes to this FISA bill must be in keeping with the original spirit of shared powers and the respect of the rule of law. If we act wisely, as every previous Congress has for 30 years when amending the Foreign Intelligence Surveillance Act, then I think we can ensure terrorist surveillance remains inside the law--not an exception to it. The Senate should pass a bill doing just that. But the FISA Amendments Act, as it comes to us from the Intelligence Committee, is not that bill, Mr. President. Its safeguards against abuse, against the needless targeting of ordinary American citizens, are far too weak. The power it concentrates in the hands of the executive branch is far too expansive. However, the Senate also has before it a version of a bill that embodies a far greater respect for the rule of law, and that is the proposal before us at this hour, offered by the chairman of the Judiciary Committee, Senator Patrick Leahy of Vermont. Both versions of the bill--both versions--authorize the American President to conduct overseas surveillance without individual warrants. Both of these bills allow the President of the United States to submit his procedures for this new kind of surveillance for the review of the FISA Court after those procedures are already in place. But only one version of the bill balances these significant new powers with real oversight from the Congress and the courts, and that is the Leahy amendment. That is the balance we need to strike. That is what every Congress has done for three decades--for three decades--with over 35 different changes to this bill, since its adoption in the late 1970s, passing every Congress almost unanimously, with the approval of Democrats and Republicans alike, balancing the tension between our determination to keep us safe from those who would do us harm with our need to protect the rule of law and the rights of the American people. That is the tension, that is the balance that we have struck over the last 30 years. After three decades of maintaining that long-held balance, we are about to deviate from it. The intelligence version of this legislation, I am afraid, is a bill of token oversight and very weak protections for innocent Americans. Specifically, the intelligence version of the bill fails on five specific counts. First, its safeguards against the targeting of Americans--its minimization procedures--are insufficient. The Intelligence Committee bill significantly expands the President's surveillance power while leaving the checks on that power unchanged. The intelligence version provides practically no deterrent against excessive domestic spying and no consequences if the court finds that the President's--any President's--minimization procedures are lacking. If his targeting procedures are found lacking, the President hardly has to worry. They administration can keep and share all the information it has obtained, and it can continue its actions all the way through the judicial review process, which can take months, if not years. It should be clear to all of us that real oversight includes the power of enforcement. The Intelligence Committee's bill offers us the semblance of judicial oversight--but not the real thing. Imagine, if you will, a judge convicting a bank robber and then letting him keep the loot he stole, as long as he promises to never, ever, ever do it again. That might as well be the Intelligence version of the bill. In fact, the Intelligence version would allow the President to immediately target anyone on a whim. Wiretapping could start even before the court has approved it. In the Intelligence Committee bill, oversight is exactly where the President likes it--after the fact. Don't get me wrong, Mr. President, when a President--any President-- needs immediate emergency authority to begin wiretapping, that President should have it. All of us, I think, agree with that. We find that obvious. The question is what to do in those cases that aren't emergencies-- because not every case is an emergency. In those cases, I believe there is no reason that the court shouldn't give advice and approval beforehand. President Bush disagrees. He believes in a permanent state of emergency. Second, the Intelligence Committee bill fails to protect American citizens from reverse targeting--the practice of targeting a foreign person on false pretenses without a warrant in order to collect the information on an American on the other end of the conversation. Reverse targeting, according to Admiral McConnell, the Director of National Intelligence, says: It is not legal. It would be a breach of the fourth amendment. That is according to the Director of National Intelligence. He is absolutely correct, of course, which is why it is so vital the FISA bill before us contain strong enforceable protections against reverse targeting. Unfortunately, the Intelligence Committee version doesn't have one. Third, the intelligence version, by purporting to end warrantless wiretapping of Americans, might actually allow it to continue unabated. That is because the bill lacks strong exclusivity language--language stating that FISA is the only controlling law for foreign intelligence surveillance. With that provision in place, surveillance has a place inside the rule of law. Without it, there is no such guarantee, Mr. President. Who knows what specious rationale this or any administration might cook up for lawless spying? The last time, as we have seen, Alberto Gonzalez--laughably, I might add, if it weren't so tragic--tried to find grounds for warrantless wiretapping in the authorization of force against Afghanistan. Those are the legal lengths to which this administration has proved willing and able to go to in order to achieve its goals. As I mentioned last evening, Senator Daschle, the former majority leader, who was deeply involved in the negotiations of the authorization language to use force in Afghanistan, wrote an op-ed piece absolutely debunking the argument that any part of that negotiation included granting the administration the power to conduct warrantless wiretaps. He was offended by the suggestion that somehow we in this Congress, on a vote of 98 to nothing, gave the administration the power to conduct warrantless wiretappings. He was directly involved in those negotiations. It never, ever, ever came up. It is offensive that Alberto Gonzalez argued that Afghanistan justified warrantless wiretapping is offensive--but it is a good example, Mr. President, of what can happen if you don't have exclusivity. FISA is the vehicle, and has been for 30 years, by which we allow for warrants to be granted to conduct surveillance when America is threatened. What is next without strong exclusivity language? The Intelligence Committee version of the bill would leave that question hanging over our heads. Fourth, Mr. President, unlike the Leahy amendment, the Intelligence Committee version of the bill lacks strong protections against what is called ``bulk collection''--the warrantless collection of all overseas communications, a massive dragnet with the potential to sweep up thousands or even millions of Americans, without cause. Today, bulk collection is not feasible. But Admiral McConnell said: It would be authorized, if it were physically possible to do so. Before any administration has that chance, I think it is important that we should clearly and expressly prohibit such an unprecedented violation of privacy. The intelligence version fails to do so. In fact, I would suggest that the previous collection of data by the telecom industry, in fact, nearly approached such bulk collection: as we now know, millions and millions and millions of faxes, of e-mails, and of phone conversations were swept up over 5 years, without any warrants whatsoever. Now, the legality of that is an unanswered question--but we are never going to know the answer if we grant retroactive immunity. We would shut the door forever on determining whether it was legal. Even though global bulk collection is not yet feasible, we have already seen a vacuum operation sweep up millions of conversations, e- mails, and faxes. So we know the will for true bulk collection is there, and the Director of National Intelligence has admitted as much. So failure of the Intelligence version of the bill to prohibit bulk collection ought to cause us all some concern. Fifth, and finally, Mr. President, the intelligence committee version of the bill stays in effect until 2013, through the next Presidential term and into the next one after that. Compare that to the 4-year sunset in the Leahy amendment. I believe that, when making such a dramatic change in the Nation's terrorist surveillance regime, we ought to err on the side of some caution. Once the new regime has been tested, once its effectiveness against terrorism and its compromises of privacy have been weighed, we deserve to have this debate again. Hopefully we will all be more informed when that happens; I trust that it will be a much less speculative debate. And there is another advantage to coming back to this bill with greater frequency. We are learning painfully that the abilities those who would do us harm are growing more sophisticated year by year. We need to be flexible, as well. To not allow for a review of this legislation until 2013, except under extraordinary circumstances, locks us in place for far too long. We ought to come back and review whether we are facing additional problems that didn't exist even a year ago, given the warp speed with technology changes globally. We shouldn't wait 6 years. Given the ever-changing terrorist threats we face, taking another look at this bill sooner is in our security interest. Mr. President, I said last evening that I admire the work of Senator Rockefeller and Senator Bond, and the members of the Intelligence Committee. And I know people say, ``Oh, you are just being collegial.'' But this is not easy work. I know they struggle with these issues, and I don't want my criticism to be interpreted to suggest that I don't respect the work they do. I clearly respect it. But this is such a critical issue, and maybe I have more of a passion about it, because it is so important. Once you begin to accept expanded executive power, it is so easy to move to the next step and the next step--and we have to be so careful about that. We are mere custodians, those of us who serve here, over our rights and the rule of law. We are relying on the work of those who have preceded us. And I think all of us admire immensely what various Congresses have done over three decades since the adoption of the original FISA bill, which was done in a bipartisan, almost unanimous fashion. But the issue we face today is historic. It is not something that began just after 9/11. The tension between keeping us safe and protecting our rights has been an ongoing debate for more than two centuries, and it will be a continuous debate. It will be a contentious debate. But striking that balance is what is so important. And the temptation to err on one side of that balance is so strong. James Madison warned more than two centuries ago that our willingness to give up domestic rights is always contingent upon the fear of what happens abroad. So while all of us here want to make sure we are doing everything to keep our country secure, we do not want to be willing to give up the basic rule of law here, and denigrate the importance of those rights. It is very dangerous to confront the people of this country with a choice between rights and security. It is a false choice. In truth, we become more secure when we protect our rights. We have learned that over the years. And if we forget that lesson now, I believe we will come to deeply, deeply regret it. This bill, the Intelligence Committee bill, reduces court oversight merely to the point of symbolism. It allows the targeting of Americans on false pretenses. It opens us up to new, twisted rationales for warrantless wiretapping, the very thing it ought to prevent. It would allow bulk collection as soon as this administration--or any administration--has the wherewithal to do it. Mr. President, we are letting this debate become one of Republicans versus Democrats, liberals versus conservatives. But the Constitution is not a partisan document. It is a document which all of us embrace. It deeply troubles me that we have allowed things to come to this point instead of insisting that we can find the wisdom and the ability to keep America safe without compromising the rule of law. In sum, the Intelligence version is entirely too trusting a bill, and not just for this administration. People say: If there were a Democrat sitting in the White House, you would not be saying this. Yes, I would. If any Democrat tried to do this, I would speak just as passionately, maybe more so, offended that someone I thought I shared some values with was suggesting a similar course of action. My concern with what we are doing is not just about the next year; it is for the years and years and years to come, for the precedent we are setting, not only for this administration, but for all those that will follow. So my passion about this is not rooted in partisanship; it is rooted in my deep conviction that abandoning or undermining the rule of law-- we don't have the right to do that. We are temporary custodians of the Constitution of the United States. So the Intelligence version is too trusting, as I said. With its immunity provisions, with its wiretapping provisions, it simply responds to the executive branch's offer of ``trust me'' with an all- too-eager to say ``yes.'' I leave my colleagues with a simple question: Has that trust been earned, not just by this President, by any President? What would our Founders think? Why did they craft a system which insisted that there be a judicial, a legislative, and an executive branch? If we walk away from that balance, then we walk away from the very trust we were endowed with by those who elected us to this office and the oath we took here. So I urge my colleagues to support the substitute being offered by Senator Leahy. Again, I commend Senator Rockefeller and Senator Bond and members of that committee who worked hard at it. There are a lot of good ideas, outside of immunity, in the Intelligence Committee version of the bill. I think we can improve it; and the Leahy amendment does that. I yield the floor.

Mr. DODD

Mr. DODD. Mr. President, let me begin my remarks, I know tomorrow we are going to begin more formal debate on the FISA legislation. This is to be a continuation of the effort, for those who wonder what this is, this is the Foreign Intelligence Surveillance Act. This was the debate which was the last item of debate before the holiday break back in mid- December. The legislation was withdrawn and was not completed. Senator Rockefeller, Senator Bond, the chairman and the ranking Republican, and members of the Intelligence Committee, Senator Leahy, Senator Specter, and members of the Judiciary Committee, Republicans and Democrats have worked on this legislation. I wish to begin my comments by thanking them for their efforts on trying to develop a piece of legislation that would reflect the realities of today. There has been some history of this bill. My intention this evening is to spend some time talking about a section of this bill dealing with retroactive immunity, which my colleagues and others who followed this debate know I spent some 10 hours on the floor of this body back in December expressing strong opposition to that provision of this bill; not over the general thrust of the bill. The Foreign Intelligence Surveillance Act is critically important to our country. It provides a means by which you can have a proper warrant extended or given out by governmental authorities to collect data, information, critical to our security. For those who know the history of this, it dates back to the 1970s as a result of the Church Committee's efforts revealing some of the egregious activities of the Nixon administration in listening in, eavesdropping, wiretapping, without any kind of court order, warrant or legal authorities. So the Congress, working in a bipartisan fashion, I think almost unanimously adopted the Foreign Intelligence Surveillance Act in the late 1970s. Since that time, this bill has been amended I think some 30 or 40 times, maybe more, I know it has been a number of times over the years. In nearly every instance, almost unanimously amended to reflect the changes over the years and the sophistication of those who would do us harm or damage, as well as our ability to more carefully apprehend or listen in or gather information that could help us protect our Nation from those who would do us great harm. That is a very brief history of this. We are once again at a situation to try and modernize and reflect the needs of our Nation. There is a tension that that exists between making sure we are secure and safe and simultaneously doing it in a manner in which we protect the basic rights of the American citizens. There has been this tension throughout our history. But we are a nation grounded in rights and liberties. It is the history of our country. It is what made us unique as a people going back more than two centuries. Over the years, we have faced very significant challenges, both at home and abroad. So we have had a need to provide for the means by which we collect data and information that would protect us, to make us aware of those who would do us harm, and yet simultaneously make sure that in the process of doing that, we do not abandon the rights and liberties we all share as Americans. The Constitution does not belong to any political party. I have said that over and over again. Certainly today, as we debate these issues involving the FISA legislation, I hope everyone understands very clearly my objections to the provisions of this bill have nothing to do whatsoever with the important efforts to make it possible for us to collect data that would keep us safe, but I feel passionately that we not allow this vehicle, this piece of legislation, to be used as a means by which we reward behavior that violated the basic liberties of American citizens by granting retroactive immunity to telecom companies that decided, for whatever reason, to agree, at the Bush administration's request, to provide literally millions of telephone conversations, e-mails, and faxes, not for a month or 6 months or a year but for 5 years, in a concerted effort contrary to the law of our land. So that is what brings me to the floor this evening. It is what brought me to the floor of this body before the holiday recess, talking and expressing my strong opposition to those provisions of this legislation. There are other concerns I would point out about this bill that other Members will raise. Senator Feingold has strong objections to certain provisions of this legislation, others have other ideas I am confident have merit. But I commend Senator Rockefeller and Senator Bond. They have done the best job, in many ways, of dealing with these sets of questions. But why in the world we decided we are going to grant retroactive immunity to these telephone companies is what mystifies me, concerns me deeply, because of the precedent-setting nature of it. There are those who would argue that in order for us to be more secure, we must give up some rights, that you have to make that choice. You cannot be secure, as we would like to be, if we are unwilling to give up these rights and liberties. I think this false dichotomy is dangerous. In fact, I think the opposite is true. In fact, if you protect these rights and liberties, that is what makes us more secure. Once you begin traveling down that slippery slope of deciding on this particular occasion we are going to walk away from these rights and these liberties, once you begin that process, it gets easier and easier to do. In this case, we are talking about telecom companies. We are talking about communications between private citizens, e-mails, faxes, phone conversations. Why not medical information? Why not financial information? When is the next example going to come up where companies that knew better, not should have known better, knew better, in my view. One of the companies that may have complied with the Bush administration's request, in fact, was deeply involved in the drafting of this legislation in the 1970s, in putting the FISA bill together. This was not some first year law school student who did not know the law of the land in terms of FISA, they knew the law, they understood it. In fact, there are phone companies that refused to comply with the request of the Bush administration absent a court order. Those companies said: Give us a court order, we will comply. Absent a court order, we will not comply. So there were companies that understood the differences when these requests were made more than 5 years ago. So this was not a question of ``everybody did it,'' the same argument that children bring to their parents from time to time, or ``we were ordered on high,'' in what is known as the Nuremberg defense which asserts that there were those in higher positions who said we ought to do this. That was the defense given in 1945 at the Nuremberg trials by the 21 defendants who claimed they were only obeying orders given by Hitler. Though this situation before us is obviously enormously different, a similar argument, that the companies were ordered to do this, defies logic and the facts of this case. With that background and the history of the FISA legislation--and there are others who will provide more detail--let me share some concerns about this particular area of the law. I will be utilizing whatever vehicles are available to me, including language I will offer to strike these provisions, to see to it that this bill does not go forward with retroactive immunity as drafted in the legislation included in the bill. I rise, in fact, in strong opposition to the retroactive immunity provisions of the Foreign Intelligence Surveillance Act as passed by the Intelligence Committee. I strongly support the Leahy substitute to the current legislation. It is my hope the Senate adopts this important measure. If it does, it will solve this particular problem. However, I am concerned that, once again, we will return to a Foreign Intelligence Surveillance Act that will grant retroactive immunity to telecom companies. As my colleagues know, I have strongly opposed retroactive immunity for the telecommunications companies that may have violated the privacy of millions of our fellow citizens. Last month, I opposed retroactive immunity on the Senate floor for more than 10 hours. The bill was withdrawn that day, but I am concerned that tomorrow retroactive immunity will return, and I am prepared to fight it again. Since last month, little has changed. Retroactive immunity is as dangerous to American civil liberties as it was last month, and my opposition to it is just as passionate. The last 6 years have seen the President--the Bush administration's pattern of continual abuses against civil liberties. Again, if this were the first instance and it went on for a few months, a year, these companies acquiescing to an administration's request, an administration that had made it its business to protect the basic liberties of Americans throughout its terms in office, I would not be standing here. I am not so rigid, so doctrinaire that I am unwilling to accept that at times of emergency such as in the wake of 9/11, you might have such a request being made by an administration-- not that I think it is right, but it could happen. I would say if it did and a handful of companies for a few months or a year, even, complied with it and went forward, I wouldn't be happy about it, but I would understand it. But that is not what happened here. That is not what this administration has been involved in. From Guantanamo, from Abu Ghraib, from rendition, secret prisons, habeas corpus, torture, a scandal involving the Attorney General's Office, the U.S. attorneys offices around the country--how many examples do you need to have? How many do we have to learn about to finally understand that we have an administration regrettably that just doesn't seem to understand the importance of the rule of law, the basic rights and liberties of the American public? My concern is that we had a pattern of behavior, almost nonstop, going on some 6 years and still apparently ongoing today. Then add that to the fact that this collection of data, this collection of information went on not for 6 months or a year but for 5 long years and would have continued, had there not been a story in the media which uncovered, through a whistleblower, that this was going on. It would still be going on today, despite the absence of any court order, or a warrant being granted by the FISA courts. There is a pattern of behavior that is going unchecked, and behavior went on for more than 5 years. That is why I stand here, because I am not going to tolerate--at least this Member is not--accepting these abuses and granting retroactive immunity. It is, once again, a walking away from this problem, inviting even more of the same in the coming days. It is alleged, of course, that the administration worked outside the law with giant telecom corporations to compile Americans' private domestic communications--in other words, a database of enormous scale and scope. Those corporations are alleged to have spied secretly and without warrant on their own American customers. Here is only one of the most egregious examples. According to the Electronic Frontier Foundation: Clear, first-hand whistleblower documentary evidence [states] . . . that for year on end every e-mail, every text message, 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. Those are not my words; those are the words of the Electronic Frontier Foundation. To me, those facts speak clearly. If true, they represent an outrage against privacy, a massive betrayal of trust. I know many see this differently. No doubt they do so in good faith. They find the telecoms' actions defensible and legally justified. To them, immunity is a fitting defense for companies that were only doing their patriotic duty. Perhaps they are right. I think otherwise, but I am willing to concede they may be right. But the President and his supporters need to prove far more than that. I think they need to show that they are so right and that our case is so far beyond the pale that no court ever need settle the argument, that we can shut down the argument here and now. That is what this will do. It will shut down this argument, and we will never, ever know what data was collected, why, who ordered this, who was responsible, if we grant retroactive immunity. Retroactive immunity shuts the courthouse door for good. It settles the issue with politicians, not with judges and jurist, and it puts Americans permanently in the dark on this issue. Did the telecoms break the law? I have my own strong views on this but, candidly, I don't know. That is what courts exist for. Pass immunity, and we will never know the answer to that question. The President's favorite corporations will be 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. The book on our Government's actions will be closed for good and sealed and locked and handed over to safekeeping of those few whom George Bush trusts to keep a secret. Over the next couple of days, I will do my best to explain why retroactive immunity is so dangerous and, conversely, why it is so important to President Bush. But first it would be useful to consider the history of the bill before us, as I did at the outset of my remarks, and how it fits into the history of the President's warrantless spying on Americans. For years, President Bush allowed Americans to be spied on with no warrant, no court order, and no oversight. The origins of this bill, the FISA Amendments Act, lie in the exposure of that spying in 2005. That year, the New York Times revealed President Bush's ongoing abuse of power. To quote from that investigation: Under a presidential order signed in 2002, the National Security Agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands of people inside the United States without warrants over the past 3 years. In fact, we later learned that the President's warrantless spying was authorized as early as 2001. Disgraced former Attorney General Alberto Gonzales, in a 2006 white paper, attempted to justify that spying. His argument rested on the specious claim that in authorizing the President to go to war in Afghanistan, Congress had also somehow authorized the President to listen in on the phone calls of Americans. But many of those who voted on the original authorization of force found this claim to new Executive powers to be laughable. Here is what former majority leader Tom Daschle wrote at the time or shortly thereafter: As Senate majority leader . . . 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 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. Such claims to expand Executive power based on the authorization for military force have since been struck down by the courts. Recently, the administration has changed its argument, now grounding its warrantless surveillance power in the extremely nebulous authority of the President to defend the country that they find in the Constitution. Of course, that begs the question, exactly what doesn't fit in under defending the country? If we take the President at his word, we would concede to him nearly unlimited power, power that belongs in this case in the hands of our courts. Congress has worked to bring the President's surveillance program back where it belongs--under the rule of law. At the same time, we have worked to modernize FISA and ease restrictions on terrorist surveillance. The Protect America Act, a bill attempting to respond to the two- pronged challenge--poorly, in my view--passed in August. But it is set to expire this coming February. The bill now before us would create a legal regime for surveillance under reworked and more reasonable rules. But crucially, President Bush has demanded that this bill include full retroactive immunity for corporations complicit in domestic spying. In a speech on September 19, he stated that ``it's particularly important for Congress to provide meaningful liability protection to those companies.'' In October, he stiffened his demand, vowing to veto any bill that did not shield the telecom corporations. And last month, he resorted to shameful, misleading scare tactics, accusing Congress of failing ``to keep the American people safe.'' That is absolutely outrageous. An American President, at a time when there are serious threats and reliable information that the threat still persists, an American President is saying: Despite your efforts to modernize FISA by providing the additional tools we need for proper surveillance on terrorist activities, I will veto this bill, I will deny you this legislation, if you don't provide protection for a handful of corporations that violated the law. That is an incredible admission, the fact that he is willing to lose all of the efforts we are making to modernize FISA in order to grant retroactive immunity so you are not in a court of law. Who is putting the country at greater risk? That is what the debate is about. That is what the President has said. He will veto the bill if we don't provide protection for a handful of corporations that, for 5 long years, when their legal departments knew exactly what the law was--AT&T was involved in the drafting of the FISA legislation in 1978. How can that company possibly claim they didn't know what the law of the land was when it came to FISA, going before the secret FISA courts, getting those warrants to allow for the Government to go in and do the proper surveillance and grant the immunity that these companies would receive under that kind of a situation. To avoid that court altogether was wrong. For 5 long years, they did that. Now the President says: I don't care what Jay Rockefeller or what Kit Bond or what the Intelligence Committee has done to modernize FISA. If you don't give me those protections I want for those handful of corporations, then you are not going to get this bill that modernizes the surveillance on terrorist activity. The very same month, the FISA Amendments Act came before the Senate Select Committee on Intelligence. Per the President's demand, it included full retroactive immunity for the telecom corporations. Don't give me it, I will veto the bill. And the committee went along. Senator Nelson of Florida offered an amendment to strip that immunity and instead allow the matter to be settled in the courts. It failed on a 3- to-12 vote in committee. As it passed out of the Intelligence Committee by a vote of 13 to 2, the bill still put corporations literally above the law and assured that the President's invasion of privacy would remain a secret. At that time, I made public my strong objections on immunity, but the bill also had to pass through the Judiciary Committee. Through an open and transparent process, the Judiciary Committee amended several provisions relating to title I and reported out a bill lacking the egregious immunity provisions. However, I am still concerned that when Senator Feingold proposed an amendment to strip immunity for good, it failed by a vote of 7 to 12 in the committee. So here we are, facing a final decision on whether the telecommunications companies will get off the hook for good without us ever knowing anything more about it, because if you grant immunity, that is it. We will never learn anything else. The President is as intent as ever he was on making that happen. He wants immunity back in this bill at all costs, including a willingness to veto very important legislation, without the meaningful provisions of this bill that would provide this country with the kind of protection and security we ought to have. He is willing to lose all of that. He is willing to trade off all of that to give a handful of corporations immunity. What he is truly offering is secrecy in place of openness. Fiat in place of law. And in place of the forthright argument of judicial deliberation that ought to be this country's pride, there are two simple words he offers: Trust me. I would never take that offer, not even from a perfect President. Because in a republic, power was made to be shared; because power must be bound by firm laws, not the whims of whomever happens to sit in the Executive chair; because only two things make the difference between a President and a king--the oversight of the legislative body, and the rulings of the courts. It is why our Founders formed this Government the way they did, with three branches of government coequally sharing the powers to govern. Each is a check on the other. That is what the Founders had been through: the absence of that. ``Trust me.'' Those two small words bridge the entire gap between the rule of law and the rule of men, and it is a dangerous irony that when we need the rule of law the most, the rule of men is at its most seductive. It is a universal truth that the loss of liberty at home is to be charged to the provisions against danger . . . from abroad. Let me repeat that. It is a universal truth that the loss of liberty at home is to be charged to the provisions against danger . . . from abroad. That is from James Madison, the father of our Constitution. He made that prediction more than two centuries ago. If we pass immunity, and put our President's word above the courts and witnesses and evidence and deliberations, we bring that prophecy a step closer to coming true. I repeat it again: 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. So that is the deeper issue behind this bill. That is the source of my passion, if you will. I reject President Bush's ``trust me'' because I have seen what we get when we accept it. I go back and mention just the maze, the list of egregious violations of the rule of law over the last 6 years. With that aside, were this a Democratic administration that would suggest this, I would be as passionate about it, not because I distrust them necessarily but because once we succumb to the passions or the desires of the rule of men over the rule of law, then we trade off the most important fundamental essence of who we are as a people. We are a nation of laws and not men. How many times have we heard that? You learn that in your first week of constitutional law. You learn in your American history class as a high school student the importance of the rule of law. If we walk away from that, then, of course, we walk away from who we are as a people. After all of that, President Bush, of course, comes to us in all innocence and begs, once again: Trust me. He means it literally. Here in the world's greatest deliberative body only a small handful of Senators know even the barest facts; only a tiny minority of us have even seen the classified documents that explain exactly what the telecoms have done, exactly what actions we are asked to make legally disappear. I have been a Member of this body for over a quarter of a century. I am a senior member of the Foreign Relations Committee. I have no right to see this? As a Member of this body, as a senior member of the Foreign Relations Committee, I am prohibited. Only the administration can see this and one or two people here who are granted the right to actually see and understand what went on. So we are being asked as a body to blindly grant this immunity, take this issue away entirely so no one can ever learn anything more about 5 long years of millions--millions--of Americans, with their private phone conversations, their faxes, and e-mails. Every word uttered is now being held and kept. And this administration knows it. The people in charge of it know it. And we want to find out why this happened, who ordered this, who provided this. If we grant this immunity, we will never know the answers to those questions. So as far as the rest of us--we are flying blind. And in that state of blindness, we can only offer one kind of oversight. The President's favorite kind: the token kind. And here, in the dark, we are expected to grant President Bush's wish. Because, of course, he knows best. Does that sound familiar to any of my colleagues? In 2002, we took the President's word and faulty intelligence on weapons of mass destruction, and we mistakenly approved what has become the disaster in Iraq. Is history repeating itself in a small way today? Are we about to blindly legalize gravely serious crimes? If we have learned anything--if we have learned anything at all--it must be this: Great decisions must be built on equally strong foundations of fact. Of course, we are not voting to go to war today. Today's issue is not nearly as immense, I would argue. But one thing is as huge as it was in 2002; and that is, the yawning gap between what we know and what we are asked to do. So I stand again and oppose this immunity--wrong in itself, grievously wrong, I would add, in what it represents: contempt for debate, contempt for the courts, and contempt for the rule of law. As I did in December, I will speak against that contempt as strongly as I can. So I will reserve further debate and discussion for tomorrow, as we go forward with this. I say this respectfully to my colleagues. I do not know if a cloture motion will be filed or not, but I hope there will be enough people who will join me. This bill can go forward without this immunity in it. And it ought to go forward. There are some amendments that will be offered, some of which I will support. There are ideas to improve on the FISA provisions of the bill to see to it that the Foreign Intelligence Surveillance Act will do exactly what we want it to do: to allow us to get that surveillance on those who would do us harm and simultaneously make sure that basic liberties are going to be protected. But I will do everything in my power, to the extent that any one Member of this body can, to see to it we do not go forward in the provision of this bill that grants retroactive immunity for the egregious misbehavior, to put it mildly, that went on here. The courts may prove otherwise. I do not know. Maybe someone will prove what they did turned out to be legally correct. But we are never going to know that if we, as a body--Democrats and Republicans--walk away from the rule of law and deny the courts of this land which have the ability to do this. The argument that you cannot rely on the courts to engage in a deliberation involving information that should be held secret is wrong. We have done it on thousands of cases over the years, and we can do it here. So I hope there will be those who will join me in saying to the President: If you want to veto this bill, go ahead. You veto it because you did not get your corporations' immunity. You explain that to the American public, why we did not have the tools available that kept America safe from those who would do us harm--because a handful of corporations decided to violate the law, in my view, and did so because the Bush administration asked them to do that. You are going to veto this bill to deny us those tools that our intelligence communities ought to have to protect American citizens at a dangerous time. You make that decision. So when this debate continues tomorrow, I will offer some additional thoughts in support of the Leahy amendment. I will be offering my own amendment, to strike retroactive immunity, and I will be considering other amendments along the way. If all of that fails, then I will engage in the historic rights reserved in this body for individual Members to talk for a while, to talk about the rule of law, and to talk about the importance of it. I do not think I have ever done this before. I have been here a long time, and I rarely engage in such activities. I respect those who have. The Founders of this wonderful institution granted the rights of individual Senators to be significant, including the power of one Senator to be able to hold the floor on an important matter about which they care deeply. I care deeply about this issue. I think all of my colleagues do. I just hope they will care enough about it to see to it this bill does not go forward with the precedent-setting nature of granting immunity in this case. It is not warranted. It is not deserved. It was not a minor mistake over a brief period of time. There is a pattern of behavior, and it went on for too long, and it would still go on if it had not been for a report done by a newspaper and a whistleblower who stood up within the phone company, who had the courage to say this was wrong, or we would still be engaged in these practices today. I think we as a body--Democrats and Republicans--need to say to this administration, and all future administrations, that you are not going to step all over the liberties and rights of American citizens in the name of security. That is a false choice, and we are not going to tolerate that and set the precedent tonight or tomorrow by agreeing to such a grant of immunity in this bill. Mr. President, I appreciate the patience of the Chair and yield the floor.

Mr. DODD

Mr. DODD. Mr. President, I rise to wish farewell to an honored colleague and a good friend: Senator Trent Lott. Trent served in Congress for 34 years, and has represented the State of Mississippi in the Senate for 18; during that time, he distinguished himself as both a dedicated and effective party leader, and a symbol of bipartisan compromise. Few Senators play both roles so well. Those who know Trent often describe his personal charisma and his natural leadership abilities. Those abilities have been on display for decades, manifesting themselves as early as his college days at Ole Miss, where Trent was a fraternity president, a cheerleader, and a well-known presence on campus. Trent brought his budding political skills to Washington, where he served as a staffer on Capitol Hill before he was elected to Congress himself, in the first of a long series of wide-margin victories. From 1973 to 1988, Trent represented Mississippi's conservative 5th District, serving on the House Judiciary Committee during the Watergate scandal, as well as in the Republican leadership. As Republican whip, he helped build broad coalitions to pass important domestic and national security legislation. In 1988, Trent was elected to the Senate by eight percentage points over his opponent and never again faced a close race, winning reelection overwhelmingly in 1994, 2000, and 2006. His skill at negotiation made him a Senate natural, and his party entrusted him with its highest leadership responsibilities: majority whip in 1995; majority leader in 1996; and, in a widely remarked-upon comeback, whip again just last year. Newt Gingrich called Trent ``the smartest legislative politician I've ever met.'' And though I often disagreed on the issues with Trent, not to mention Newt, I just as often admired his acumen. I couldn't begin to list the important legislation shepherded through this body by the Senator from Mississippi: education reform, defense spending, trade legislation, the ratification of NATO expansion, the creation of the Department of Homeland Security, and much more. But even as he worked on matters of national and international import, he always had time for the people of Mississippi: he helped expand his state's highway system, brought research funding to its universities, and dedicated himself to Mississippi's economic recovery in the wake of Hurricane Katrina. Indeed, the challenged posed by that destructive storm convinced Trent to put off retirement until this year; and I am sure that the people of his state are grateful for the time he could lend to their recovery efforts. In his memoirs, Trent compared leading the Senate to ``herding cats.'' But today, at least, the members of this most difficult body have found some unanimity: We are united in our affection for Trent Lott and in our sadness at his departure. We will miss his legislative talent, his rich baritone, his taste in seersucker suits, and his fine head of hair. But we trust that he and his dear wife Tricia have many happy years ahead, and we wish them all the best.

Mr. DODD

Mr. DODD. Mr. President, first, let me say to my two good friends, Senators Rockefeller and Bond, I appreciate the job they do serving as chairman and ranking member of the Senate Intelligence Committee. I commend them for their efforts in this matter. Having said that, I reluctantly rise to urge my colleagues to vote against cloture on S. 2248, the FISA Amendment Act, and I will explain why. Opposing cloture is essential, because there is no unanimous consent agreement in place providing for the immediate adoption of the Judiciary Committee substitute amendment. As you know, the Judiciary substitute amendment, among other things, strikes title II of the Intelligence Committee bill--the title which seeks to provide retroactive immunity to telecommunications companies who are alleged to have violated their customers' privacy rights by turning over information to the government without warrants. I am fully aware that the majority leader has various parliamentary options at his disposal to move this legislation forward. It is his right to attempt to invoke cloture. But I regret that decision, and I hope that my colleagues will join me in stopping this legislation. Mr. President, why do I feel so strongly about this matter? For the last 6 years, our largest telecommunications companies have been spying on their own American customers. Secretly and without a warrant, they delivered to the Federal Government the private, domestic communications records of millions of Americans--records this administration has compiled into a database of enormous scale and scope. That decision betrayed millions of customers' trust. It was unwarranted--literally. But was it illegal? That, Mr. President, I don't know. And if this bill passes in its current form, we will never know. The President's favored corporations will be immune. Their arguments will never be heard in a court of law. The details of their actions will stay hidden. The truth behind this unprecedented domestic spying will never see light. And the book on our Government's actions will be closed, and sealed, and locked, and handed over to the safekeeping of those few whom George Bush trusts to keep a secret. The bill that the majority leader will seek to make the pending business of the Senate later today--the FISA Amendments Act of 2007-- has a long and twisted history behind it. Its origins lie in President Bush's years of warrantless spying on Americans. That abuse of power was exposed by the press in late 2005. The New York Times revealed that: Under a presidential order signed in 2002, the [National Security Agency] has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years. In fact, we later learned that the President's warrantless spying was authorized as early as 2001. Disgraced former Attorney General Alberto Gonzales, in a 2006 white paper, attempted to justify that spying; his argument rested on the specious claim that, in authorizing the President to go to war in Afghanistan, Congress had also somehow authorized him to listen in on phone calls in America. But many of those who voted on the original authorization of force found this claim to new executive powers to be a laughable invention. Here's what former Majority Leader Tom Daschle wrote: As Senate majority leader . . . 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 am also confident that the 98 senators who voted in favor of authorization of force against al-Qaida did not believe that they were also voting for warrantless domestic surveillance. Such claims to expanded executive power based on the authorization for military force have since been struck down by the courts. In recent months, the administration has changed its argument, now grounding its warrantless surveillance power in the extremely nebulous ``authority of the President to defend the country'' that they find in the Constitution. Of course, that begs the question: Exactly what doesn't fit under ``defending the country''? If we take the President at his word, we would concede to him nearly unlimited power, as long as he finds a lawyer willing to stuff his actions into that boundless category. Rather than concede such power, Congress has worked to bring the President's surveillance program back where it belongs--under the rule of law. At the same time, we have worked to modernize FISA and ease restrictions on terrorist surveillance. The Protect America Act, a bill attempting to respond to that two-pronged challenge, passed in August; but it is set to expire in February. The bill now before us would create a legal regime for surveillance under reworked and more reasonable rules. But crucially, President Bush has demanded that this bill include full retroactive immunity for corporations complicit in domestic spying. In a speech on September 19, he stated that ``it's particularly important for Congress to provide meaningful liability protection to those companies.'' In October, he stiffened his demand, vowing to veto any bill that did not shield the telecom corporations. And this month, he resorted to shameful, misleading scare tactics, accusing Congress of failing ``to keep the American people safe.'' That month, the FISA Amendments Act came before the Senate Select Committee on Intelligence. Per the President's demand, it included full retroactive immunity for the telecom corporations. Senator Nelson introduced an amendment to strip that immunity, and instead allow the matter to be settled in the courts. It failed by a vote of 3 to 12. But as it passed out of the Intelligence Committee, by a vote of 13 to 2, the bill still put corporations literally above the law and ensured that the extent of the President's invasions of privacy would remain a secret. I found retroactive immunity far beyond the pale, and I made my objections strongly and publicly. But the bill also had to pass through the Judiciary Committee. There, Chairman Pat Leahy succeeded in reporting out a bill without the egregious immunity provision. Over the years, Pat Leahy has cemented his reputation as a champion of the rule of law; and I believe the stand he took last month will be honored for a long time to come. However, I am still concerned that when Senator Feingold proposed an amendment to strip immunity for good, it failed by a vote of 7 to 12. So here we are--facing a final decision on whether the telecommunications companies will get off the hook for good. The President's allies are as intent as they ever were on making that happen. They want immunity back in this bill at all costs. But what they are truly offering is secrecy in place of openness. Fiat in place of law. And in place of the forthright argument and judicial deliberation that ought to be this country's pride, two simple words from our President's mouth: ``Trust me.'' I cannot speak for my colleagues--but I would never take that offer, not even in the best of times, not even from a perfect President. I would never take that offer because our Constitution tells us that the President's word is subject to the oversight of the Congress and the deliberation of the courts; and because I took an oath to defend the Constitution; and because I stand by my oath. ``Trust me.'' It is the offer to hide ourselves in the waiting arms of the rule of men. And in these threatened times, that offer has never seemed more seductive. The rule of law has rarely been so fragile. ``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 our 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. On its behalf, we say to President Bush that a Nation of truly free men and women would never take ``trust me'' for an answer, not even from a perfect President--and certainly not from this one. In these times--under a President who seems every more day intent on acting as if he is the law, who grants himself the right to ignore legislation, who claims the power to spy without a warrant, to imprison without a hearing, to torture without a scruple--in these times, I would be a fool to take his offer. But ``trust me,'' says President Bush. He means it literally. When he first asked Congress to make the telecoms' actions legally disappear, Congress had a reasonable question for him: Can we at least know exactly what we'd be immunizing? Can you at least tell us what we'd be cleaning up? And the President refused to answer. Only he, his close advisors, and a handful of telecom executives know all of the facts. Congress is only asked to give token oversight. But if we are to do our constitutionally mandated job, we need more than token oversight; we need full hearings on the terrorist surveillance program before the Intelligence and Judiciary Committees. Without that, we remain in the dark--and in the dark we're expected to grant the President's wish, because he knows best. Does that sound familiar to any of my colleagues? In 2002, we took the President's word and voted to go to war on faulty intelligence. What if we took his word again--and found, next year or the year after, that we had blindly legalized grave crimes? If this disastrous war has taught us anything, it is that the Senate must never again stack such a momentous decision on such a weak foundation of fact. The decision we're asked to make today is not, of course, as immense. But between fact and decision, the disproportion is just as huge. So I rise in determined opposition to this unprecedented immunity and all that it represents. I have served in this body for more than a quarter century. I have spoken from this desk hundreds and hundreds of times. I have rarely come to the floor with such anger. But since I came to Washington, I have seen six Presidents sit in the White House--and I have never seen a contempt for the rule of law equal to this. Today, I have reached a breaking point. Today my disgust has found its limit. I don't expect every one of my colleagues to share that disgust, or that limit. I wish they did--but had that been the case, we would never have come to this point. I only ask them to believe me when I say if I did not speak today, my conscience would not let me rest. The right to conscience is one of the Senate's most treasured allowances. It is perhaps this body's defining feature. The President has his dominating bully pulpit. Justice Robert Jackson famously wrote that ``in drama, magnitude and finality [the President's] decisions so far overshadow any others that almost alone he fills the public eye and ear. No other personality in public life can begin to compete with him in access to the public mind.'' But in this Chamber, a minority--even an impassioned minority of one--has the right to stand against all the combined weight and machinery of government and plead: ``Stop!'' Or at least: ``Wait.'' A minority can't stand forever, as surely as I can't speak forever. Ultimately, a minority has only one recourse--to make itself a majority. And I have faith that when the American people understand the full extent of this President's contempt for the law, they will share my outrage. This is a trusting and patient nation--and with more than two centuries of democratic tradition, rightly so. But that trust is not infinite; that patience is not endless; and after 7 years of this President, they are worn down to the nub. If I didn't believe that, I wouldn't be standing here today. If the rule of law were not my ruling passion, I wouldn't be standing here today. But I do, and it is. ``Law'' is a word we barely hear from the President and his allies. They offer neither a deliberation about America's difficult choices in the 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, ever both. It speaks volumes about the President's estimation of the American people that he expects them to accept that choice. I think differently. 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 the President's allies: You want to put the President's favored corporations above the law. Could you please explain how your immunity makes any one of us any safer by an iota? If security were truly the issue, this debate wouldn't be happening. An excellent balance between security and liberty has already been struck by FISA, a balance that has stood for three decades. In fact, FISA was written just to prevent a situation like ours from occurring: to protect Americans without countenancing executive lawbreaking. In the wake of the Watergate scandal, the U.S. Senate convened the Church Committee, a panel of distinguished senators determined to shine light on executive abuses of power. The facts it uncovered were shocking: 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. The collective force of these revelations was undeniable: In their oversight duties, Congress and the courts had failed; they had unquestioningly accepted the executive's ``trust me''; and as a result, 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.'' The Senate could have panicked; it could have ended or drastically curtailed those searches altogether. But in its wisdom, the Senate understood that protecting the American people was not the problem; the problem was simply the Nixonian attitude that ``if the President does it, it's not illegal.'' The solution was to bring the executive's efforts to protect America under the watchful eye of Congress and the courts--to restore checks and balances to surveillance, and to give it the legitimacy it demands and deserves. America would not be America if such power remained concentrated in the hands of one man, or one branch of Government. The Church Committee's final report, ``Intelligence Activities and the Rights of Americans,'' put the case eloquently: 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 of the Church Commission 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 we hear in those words. They 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 30 years ago. Why is it so clouded now? 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, had seen Nazi and Soviet spying, and were living every day under the cloud of nuclear holocaust. How short some memories are. The threats 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, the dean of Yale Law School, recently argued: The engagement of all three branches tends to yield not just more thoughtful law, but a more broadly supported public policy. Three decades ago, that broadly supported public policy--a prime outcome of the Church Committee--was 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 that the Federal FISA court issued a warrant--ensuring that wiretapping was aimed at safeguarding our security, and nothing else. To further protect intelligence gathering, that court was to work in secret. Ironically, none other than the President's own Director of National Intelligence, Mike McConnell, explained the rationale in an interview this summer: The United States ``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 nine times since, FISA has accomplished its mission; it has been a valuable tool for conducting surveillance of terrorists and those who would harm America. And every time Presidents have come to Congress openly to ask for more leeway under FISA, Congress has worked with them; Congress has compromised; and together, Congress and the President have struck a balance that safeguards America while doing its utmost to protect 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 computers. Personally, I felt that this summer's legislation went too far, and I opposed it. But the point is that Congress once again proved its willingness to work with the President on FISA. Isn't that enough? Just this October and November, as we have seen, the Senate Intelligence and Judiciary Committees worked with the President to further refine FISA and ensure that, in a true emergency, the FISA court would do nothing to slow down intelligence gathering. Isn't that enough? And as for the FISA court, it has approved the President's wiretapping requests with impeccable consistency. Between 1978 and 2004, according to the Washington Post, the FISA court approved 18,748 warrants and rejected five. The FISA court has sided with the executive 99.9 percent of the time. Isn't that enough? Is anything lacking? Isn't the framework already in place? Isn't all of this enough to keep us safe? We all know the President's answer. Given this complex, fine-tuned machinery, crafted over three decades by all three branches, what did he do? He ignored it. Given a system primed to bless nearly any eavesdropping he could conceive--he conducted his own, 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. And still that wasn't good enough for our President. So I will ask the Senate candidly, and candidly it already knows the answer: Is this about our security or is it about his power? I ask that question not to change the subject, but because it is the key to understanding why this administration is pushing so hard for telecom immunity--that is, for secrecy. Richard Nixon, the same man who declared that ``if the president does it, it's not illegal,'' raised secrecy to an art form--because he understood that the surest way to amass power is to conceal its true extent. Secrecy can spring from the best motives; but as it grows it begins to exist only for itself, only for its own sake, only to cover its own abuses. The Senators of the Church Committee expressed succinctly the deep flaw in that form of Government: ``Abuse thrives on secrecy.'' Today, we have seen the executive branch pass to a new master of secrecy. Vice President Cheney practices a secrecy so baroque that it could, in a less threatened time, be an object for laughter, instead of fear. His unclassified papers? Stamped ``treat as TSSCI,'' one of the highest levels of state secret. The list of papers he has declassified? Classified. The members of his energy task force? None of your business. His location? Undisclosed. The names of his staff? Confidential. And tellingly, of course, the visitor log for his office? Shredded by the Secret Service. When secrecy becomes this divorced from practicality, we are left with only one conclusion: For this executive branch, secrecy is power. Of course, I don't mean any offense against our Vice President--as he reminds us, he is not part of the executive branch. We see a pattern of secrecy stretching back to the first months of this administration. Its push for immunity is no different--secrecy is at its center. And tellingly, the administration's original immunity proposal protected not just the telecoms, but everyone involved in the wiretapping program. In their original proposal, that is, they wanted to immunize themselves. Think about that. It speaks to their fear and, perhaps, their guilt: their guilt that they had broken the law, and their fear that in the years to come, they would be found liable or convicted. They knew better than anyone else what they had done--they must have had good reason to be afraid! Thankfully, executive immunity is not part of the bill before us. I am grateful for that. But the origin of immunity tells us a great deal about what's at stake here: This is, and always has been, a self- preservation bill. Otherwise, why not have the trial and get it over with? If the President's allies believe what they say, the corporations would win in a walk. After all, look at things from their perspective: In their telling, when our biggest telecom corporations helped the President spy without a warrant, they were doing their patriotic duty. When they listened to the executive branch and turned over private information, they were doing their patriotic duty. When one company gave the NSA a secret eavesdropping room at its own corporate headquarters, it was simply doing its patriotic duty. The President asked, the telecoms answered. Shouldn't that be an easy case to prove, Mr. President? 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 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? Why is he standing in the way? Our Federal court system has dealt for decades with the most delicate national security matters, building up expertise in protecting classified information behind closed doors--ex parte, in camera. We can expect no less in these cases. If we're worried about national security being threatened as a result, we can simply get the principals a security clearance. No intelligence sources need be compromised. No state secrets need be exposed. And we can say so with increasing confidence, because after the extensive litigation that has already taken place at both the district court and circuit court level, no sensitive information has leaked out. In fact, Federal District Court Judge Vaughn Walker, a Republican appointee, has already ruled that the issue can go to trial without putting state secrets in jeopardy. He reasonably pointed out that the existence of the President's surveillance program is hardly a secret at all: The government has already disclosed the general contours of the ``terrorist surveillance program,'' which requires the assistance of a telecommunications provider. George Bush wouldn't be the first president to hide righteously behind the state secrets privilege. In fact, the privilege was tainted at its birth by a President of my own party, Harry Truman. In 1952, he 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 state 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 this Presidency: ``sacrificing liberty for no apparent enhancement of security.'' Worse than selling our soul--giving it away for free! The President 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, FISA has compelled telecommunications companies to cooperate with surveillance, when it is warranted--and what's more, it immunizes them. It is done that for more than 25 years. So cooperation in warranted wiretapping is not at stake today. Collusion in warrantless wiretapping is--and the warrant makes all the difference, 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 of our president's lawbreaking, and the extent of his corporations' complicity. That, our President will go to the mat to defend. That, he will keep from the light of a courtroom at all costs. That, his supporters would amend the law to protect. And that is the choice at stake today: Will George Bush's secrets die with this Presidency? Or will they be open to the generations to come, to our successors in this Chamber, so that they can prepare themselves to defend against future outrages of power and usurpations of law from future Presidents, of either party? I am here because I will not see those secrets go quietly into the good night with Donald Rumsfeld and Alberto Gonzales and Dick Cheney and George Bush. I am here because the truth is not their 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 president's allies use when they're feeling high- minded! When their thoughts turn baser, they make their arguments in dollar signs. Here's how 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. Mike McConnell is quickly becoming an accidental truth-teller! Notice how the President's own Director of National Intelligence concedes that if the cases went to trial, the telecoms would lose. I don't know if that's true, Mr. President--but we can thank Admiral McConnell for telling us how he really feels. Of course, it is an exaggeration to claim that these companies would surely go bankrupt, even if they did lose. We are talking about some of the wealthiest, most successful companies in America. Let me quote an article from Dow Jones MarketWatch. The date is October 23, 2007. The headline reads: ``AT&T's third-quarter profit rises 41.5 percent.'' AT&T Inc. on Tuesday said third-quarter earnings rose 41.5 percent, boosted by the acquisition of BellSouth and the addition of 2 million net wireless customers . . . Net income totaled $3.06 billion . . . compared with $2.17 billion . . . a year ago. Note that AT&T has posted these record profits at a time of very public litigation. A company with more than $3 billion in profits one quarter--only the most exorbitant and unlikely judgment could completely wipe it out. To assume that the telecoms would lose, and that their judges would then hand down such backbreaking penalties, is already to take several leaps. The point, after all, has never been to financially cripple our telecommunications industry. The point is to bring checks and balances back to domestic spying. Setting that precedent would hardly require a crippling judgment. It is much more troubling, though, that the Director of National Intelligence even feels the need to pronounce on ``liability protection for private sector entities.'' Since when were our spies in the business of economics? Since when did they put protecting AT&T or Verizon ahead of protecting the American people? Since when did the amount a defendant stands to lose have any bearing on whether a suit should go forward? I learned in law school that guilty was guilty--no matter how rich or how poor. Lean on this logic, and you'll sink to its venal core: Certain corporations are too rich to be sued. Forget what they owe; forget what's just; forget judges setting the penalty. If there's even a chance of the judgment being high, throw the suit out--it endangers the Republic! This administration has equated corporations' bottom lines with our Nation's security. Follow that reasoning honestly to its end, and you come to the conclusion: The larger the corporation, the more lawless it can be. If we accept Mr. McConnell's premises, we could conceive of a corporation so wealthy, so integral to our economy, that its riches place it outside the law altogether. And if the administration's thinking even admits that possibility, we know instinctively how flawed it is. The truth is exactly the opposite: The larger the corporation, the greater the potential for abuse, and the more carefully it must be watched. Not that success should make a company suspect; 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. Consider this. According to the Electronic Frontier Foundation, Clear, first-hand 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. If true, that constitutes one of the most massive violations of privacy in American history. And it would be inconceivable without the size and resources of an AT&T behind it--the same size that makes Mike McConnell fear the corporations' day in court. 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, and prying up all the floorboards. 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. But the arguments of the President's allies sink even lower. Listen to the words a House Republican leader spoke on Fox News. They are shameful: I believe that they deserve immunity from lawsuits out there from typical trial lawyers trying to find a way to get into the pockets of American companies.

Mr. DODD. Mr. President, I ask unanimous consent for 1 more minute.

Mr. DODD. Cindy Cohn is one of those ``trial lawyers.'' She is lead counsel at the Electronic Frontier Foundation, a small public-interest law firm bringing suit against the telecom corporations. And when she heard that Fox News claim about typical greedy trial lawyers, she laughed. If he still thinks that we're rich plaintiffs' attorneys after he's visited our little tiny Mission Street offices, [she said,] then I have a bridge to sell him. Most of the EFF lawyers worked in those big fancy firms for big fancy salaries, and took big pay cuts to join us . . . Young lawyers come to me and say, ``I really want to work for EFF--you have such great lawyers.'' I say: ``Take your current paycheck, rip it in three pieces, take any third, and that's about what you'll get working for EFF.'' The lawyers who work for EFF . . . are making far less than they could on the open market in exchange for being able to work in things they believe in every day. Consider the hundreds of lawyers retained by the corporations in question, and their multimillion-dollar legal budgets, and the attempt to portray them as pitiable Davids is ludicrous. Sprint's lawyers recently settled an unrelated class-action lawsuit for $30 million. Three years ago, AT&T handled a settlement with shareholders for $100 million. With those resources, I think they can give EFF's nine nonprofit lawyers in their little office on Mission Street a fair fight. Mr. President, I don't presume to know how that fight will end. I don't presume to hand out innocence and guilt--that's not my job. Judges and juries do that. And in their search for the truth, the only job of this body is to get out of the way. I am not invested in one verdict or another--only that a verdict is reached. I don't care who the truth favors--only that it comes out at all. State secrets; future cooperation; economic harms; reputational damage; legal burdens--as we've seen, not a single one of the President's arguments for this immunity stands. Nothing tells us to halt the legal process, to bar the courthouse door. Everything tells us to open it. Mr. President, perhaps when I leave this floor today, someone will ask me, ``Why are you so agitated about some telephone records? There's so much else to be worked up about!'' And I'll only be able to respond: ``Exactly.'' We have seen this administration chip away at the rule of law at a dozen points. Its relentlessness may be its greatest strength--the assault becomes numbing, and our healthy outrage grows dull. It was an outrage when this President set up secret courts outside the law. It was an outrage when he ignored the courts and tapped our phones. It was an outrage when he sanctioned torture. But outrage upon outrage upon outrage--and we wind up in a stupor. We have allowed each abuse with nothing more than a promise to resist the next one--and the next one, and the next one. I am here, in the end, because the line has to be drawn somewhere. Why not here? Why not today? So, Mr. President, I urge my colleagues to reject the motion on cloture. Let them come back, strip this language out on immunity, and give us a clean FISA bill. That is the only right thing to do. The law is here to protect all of us. We can have security and liberty. As Benjamin Franklin said some 200 years ago: Those who would sacrifice liberty for security deserve neither security nor liberty. So I urge my colleagues to reject cloture, and then we can send the bill forward without that immunity provision. Mr. President, I yield the floor.

Mr. DODD. Mr. President, reserving the right to object, is there a rule in the Senate that requires this?

Mr. DODD. Let me say this, further reserving the right to object, I will respectfully object at this time, and I will talk with the leader about that necessity. I don't want to set the precedent of insisting on 60 votes on a germane amendment. I will object at this point, and following that, the leader can make the request again.