Christopher Dodd

Mr. DODD

Mr. DODD. I have an amendment I would like to offer that strikes title II of the legislation. I am prepared to offer that. I know Senator Leahy talked about going first. I am prepared to follow whatever the Senate would like us to in order. I would like an opportunity to offer my amendment at some point. I told the leader that we can work out a time agreement. I wasn't quite ready to do it. I want to know how many people want to be heard. I will limit myself, but I want to get a vote. I am not looking for extended debate on my amendment.

Mr. DODD. Mr. President, I thank my colleague from Ohio for his continuing efforts here. He is not a newcomer at all to these issues. I thank him for his words, support, and knowledge of the issue, and his continuing efforts to see if we can get a good bill out of here and not add extraneous matters such as this. As I heard Senator Nelson of Florida talk earlier, I thought--I think many of us thought that had this been a day or a week after 9/11, we might have found the telecoms' actions more understandable. In the heat of emergency, we might have accepted some excessive aggression. I can understand people drawing that conclusion. But this program went on for 5 long years. The idea that we grant retroactive immunity for actions over 5 long years goes way beyond anything anybody ought to accept in this body. Retroactive immunity, under these circumstance, would be a massive step backward in light of this administration's assault on the Constitution and the rule of law. Again, I thank my colleague from Ohio.

Mr. DODD. Madam President, before my colleague leaves, I thank my colleague Senator Feingold for not only his statements today but for speaking eloquently about this issue, with which he has been deeply involved with for a long time. Drawing on his service on both the Intelligence and Judiciary Committees, he eloquently pointed out that these provisions are designed to guarantee exactly what FISA intended to provide the security of our country and the sanctity of our rights, simultaneously. And the idea that these companies were acting out of patriotism and naive to the provisions of the law when the very same companies were involved in crafting that law 30 years ago says volumes. I thank Senator Feingold immensely for his work.

Mr. DODD. Madam President, first of all, I know others may want to speak as well, but let me take a few minutes, if I can, to share with my colleagues some of the background and information concerning my concern with Title II of this legislation. I certainly agree with my friend and colleague from Virginia, the former chairman of the Armed Services Committee, that it is critically important we modernize FISA. The 30-year-old piece of legislation has served our country well, striking a balance between acquiring the intelligence we need to protect our country and protecting us against the erosion of our rights. My main concern with the proposal, as many know, is Title II, the retroactive immunity provision. I am deeply concerned about the precedent it would set. The telecoms' 5-year-old program only became public information because there was a whistleblower, Madam President, a gentleman by the name of Mark Klein, who was an employee of AT&T for more than 20 years. He was really responsible for us being aware of this program. Had it not been for Mark Klein stepping up, this story might have remained secret for years and years, causing further erosion of our rights. Mark Klein and others were principally responsible for coming forward and expressing their deep concerns. I think it is important for my colleagues in this body to understand precisely what these telecom communities are doing at the behest of the Bush administration. Mark Klein was courageous enough to blow the whistle on one such program at AT&T's facility at 611 Folsom Street in San Francisco. When the government's warrantless surveillance program came to light in December of 2005, Mr. Klein realized he had unwittingly aided and abetted an extensive, untargeted spying program that may have violated the civil liberties of millions of Americans. In early 2006, Mr. Klein went public with evidence of this program, providing over 100 pages of authenticated schematic diagrams and tables detailing how AT&T diverted its customers' communications to a room controlled by the NSA, with sophisticated equipment inside capable of analyzing millions of customers' Internet activities and e-mails in real time. The following are Mr. Klein's own words as to what he saw. For 5 years, the Bush administration's National Security Agency, with the help of the country's largest telecommunication companies, has been collecting your e-mail, accumulating information on your web browser, and gathering details on your Internet activity, all without warrants and in violation of the United States constitution and several Federal statutes and State laws. Even after the program was exposed by The New York Times in December of 2005, the President and other government officials consistently defended the NSA's activities, insisting that the NSA only collects communications into or from the United States where one party to the communication is someone they believe to be a member of al-Qaida or an associated terrorist organization. But these claims are not true. I know they are not true, because I have firsthand knowledge of the clandestine collaboration between one giant telecommunications company and the NSA to facilitate the most comprehensive spying program in history. I have seen the NSA's vacuum cleaner surveillance infrastructure with my own eyes. It is a vast government-sponsored warrantless spying program. For over 22 years, I worked as a technician for AT&T. While working in San Francisco in 2002, I learned that a management level technician, with AT&T's knowledge, had been cleared by the NSA to work on a special but secret project--the installation and maintenance of Internet equipment in a newly constructed secure room at AT&T's central office in San Francisco. Other than the NSA cleared technician, no employees were allowed in that room. In October of 2003, I was transferred to that office and was in particular assigned to oversee AT&T's operations. As part of my duties, I was required to connect circuits carrying data to optical splitters, which made a copy of the light signal. But the splitters weakened the light signal causing problems I had to troubleshoot. After examining engineering documents given to the technicians which showed the connections of the splitters, I discovered they were hard wired to a secret room. In short, an exact copy of all traffic that flowed through critical AT&T cables, e-mails documents, pictures, web browsers, voice-over-Internet phone conversations, everything, was being diverted to equipment inside the secret room. In addition, the documents revealed the technological gear used in their secret project, including a highly sophisticated search component capable of quickly sifting through huge amounts of digital data, including text, voice, and images in real time according to preprogrammed criteria. It is important to understand that the Internet links connected to the splitters contained not just foreign communications but vast amounts of domestic traffic, all mixed together. Furthermore, the splitter has no selectively abilities. It is just a dumb device which copies everything to the secret room, and the links going through the splitter are AT&T's physical connections to many other Internet providers--Sprint, Quest, Global Crossing, cable and wireless, and the critical West Coast exchange point known as Mae West. Since these networks are interconnected, the government surveillance affects not only AT&T customer matters but everyone else--millions of Americans. I also discovered in my conversations with other technicians that other secret rooms were established in Seattle, San Jose, Los Angeles, and San Diego. One of the documents I obtained also mentions Atlanta, and the clear inference and the logic of this setup and the language of the documents is that there are other such rooms across the country to complete the coverage, possibly 15 or 20 more. So when reports of the government's extensive wiretapping program surfaced in December 2005, after I had left AT&T, I realized two things: First, that I had been a witness to a massive spying effort that violated the rights of millions of Americans; and, second, that the government was not telling the public the truth about the extent of their unconstitutional invasion of privacy. In the spring of 2006, I became a witness for the Electronic Frontier Foundation's lawsuit against AT&T. The New York Times, on April 13, 2006, reported that four independent technical experts examined the AT&T documents. All said that the documents showed that AT&T had an agreement with the Federal Government to systematically gather information flowing on the Internet. Now, Madam President, there is a further statement of telecommunication expert Brian Reid on AT&T whistleblower Mark Klein's revelations. Dr. Reid is currently the Director of Engineering and Technical Operations at Internet Systems Consortium, a nonprofit organization devoted to supporting a nonproprietary Internet. Dr. Reid, who has taught at Stanford and Carnegie-Mellon Universities, was an early pioneer in the development of Internet and network technology and received numerous awards for his work in the field of information technology. I think Dr. Reid's expertise in telecommunications is vital to understanding the depth and breadth of the program found at AT&T's Folsom Street facility in San Francisco. Let me read from Dr. Reid's testimony. I am a telecommunications and data networking expert who has been involved in the development of several critical Internet technologies. I was a professor of electrical engineering at Stanford University and in computer science at Carnegie-Mellon university west. I have carefully reviewed the AT&T authenticated documents and declaration provided by Mark Klein and the public redacted version of the expert declaration of J. Scott Marcus both filed in the Hepping vs. AT&T litigation. Provided the information contained in those declarations and documents, with my extensive knowledge of the international communications infrastructure and the technology regularly used for lawful surveillance pursuant to warrants and court orders, I believe Mr. Klein's evidence is strongly supported of widespread untargeted surveillance of ordinary people, both AT&T customers and others. The AT&T documents describe a technological setup at the AT&T facility in San Francisco. This setup is particularly well suited to wholesale dragnet surveillance of all communications passing through that facility, whether international or domestic. These documents describe how the fiber-optic cables were cut and splitters installed at the cut point. Fiber-optic cables work just like ordinary TV splitters. One cable feeds in and two cables feed out. Both cables carry a copy of absolutely everything that is sent, and if the second cable is connected to a monitoring station, that station sees all traffic going over the cable. Mr. Klein stated the second cable was routed into a room at the facility whose access was restricted to AT&T employees having clearances from the NSA. The documents indicate that similar facilities were being installed in Seattle, San Jose, Los Angeles, and San Diego, and also a reference to a somewhat similar facility in Atlanta. This infrastructure is capable of monitoring all traffic passing through the AT&T facility, some of it not even from AT&T customers, whether voice or data or fax or international or domestic. The most likely use of this infrastructure is wholesale untargeted surveillance of ordinary Americans at the behest of the NSA. NSA involvement undermines arguments the facility is intended for use by AT&T in protecting its own network operations. This infrastructure is not limited to, nor would it be, especially efficient for target surveillance or even untargeted surveillance aimed at communications where one of the ends is located outside of the United States. It is also not reasonably aimed at supporting AT&T operations in security procedures. There are three main reasons. The technological infrastructure is far more powerful and expensive than that needed to do targeted surveillance or surveillance aimed only at international or one-end foreign communications. For example, it includes a NARUS Norris 6400, a computer that can simultaneously analyze huge amounts of information based on rules provided by the machine operator, analyze the content of messages and other information--not just headers or routing information--conduct the analysis in real time, rather than after a delay, and correlate information for multiple sources, multiple formats, over many protocols and through different periods of time in that analysis. The document describes a secret private backbone network, separate from the public network where normal AT&T customer traffic is carried and transmitted. A separate backbone network would not be required for transmission of the smaller amounts of data captured by a targeted surveillance. You don't need the magnitude of capacity doing targeted surveillance. The San Francisco facility is not located near an entry point for international communications that happen to be transmitted through the United States, either through undersea cable or via satellite. As a result, it would not be a sensible place to locate a facility aimed at simply monitoring traffic to or from northern countries. I apologize for those rather elaborate statements from two rather technical people, but I thought it was important for our colleagues considering the matter before us that the information that broke this story did not just come from casual observers, but from highly skilled people who could comment on the rather broad use of this information. The idea that we are just focusing our attention on foreigners who might be engaged in activities threatening our existence of course is belied by the evidence provided by both of these very substantial witnesses. I would like to maybe take another few minutes, if I can, to address some of the questions that have been raised by a number of people today in support of the retroactive immunity. Let me state again, it is very important that we have the FISA legislation. It is very important that we have the modern means to maintain the technological advances to be able to trap and capture information that poses a risk to our country. No one here, I believe, is arguing against that. The question simply was, For 5 years, why didn't the telecommunications industry and why didn't the individuals in the Bush administration simply do what had been done more than 18,000 times before, and that is go and get a court order from the FISA Court? Don't blame the NSA here. I have talked about them. The NSA is a Federal Government agency responsible for collecting the data. It was the administration officials here and the lawyers within these telecommunications companies who decided to avoid the law. The NSA officials whom I have dealt with over the years want to be able to operate within Federal statutes. Their job is not to draft the law but to gather intelligence. The responsibility is on those in the administration responsible for granting this kind of legal authority without going to the FISA Court. And it is on the legal departments in these major communications companies for not understanding what they should know--and did know, I believe--and that is that they merely had to go to the FISA Court and get a court order, and the information sought by the NSA would be immune from any further legal proceedings. That is the issue. The law had been in place for three decades. Those who are fighting immunity want an open debate on the balance of security and civil liberties. The President disagrees. He is saying: If you strike the immunity for these corporations, I will veto the bill. I find it remarkable that Members have worked hard over weeks to craft a bill to balance the needs of civil liberties and the ability to gather information, and the President is saying: I don't care if you have done all of that; if you don't protect these corporations from lawsuits, I am going to put the whole legislation at risk. It seems to me the immunity issue ought not dominate the decision the committees have made about what needs to be done to balance civil liberties and the need to gather information. Mr. President, I see great danger in this immunity. It would replace the rule of law with the rule of secrecy. Those who are fighting immunity offer open debate on the balance of security and civil liberties. But this President tells us that he knows best, that he has set the balance already and the rest of us do not need to worry our heads about it. I oppose immunity because I find that thinking to be dead wrong. The power at stake today--the power to spy, the power to invade privacy, the power to put one's friends outside the law--does not belong in the hands of any one individual, no matter how wise--and certainly not the hands of a President whose contempt for the law has been too obvious for too many years. As we fight this immunity, that is what is at stake today. Not punishment. Not payback. Openness. Americans deserve to know what this President and these corporations have done to them, and we are never going to know that if this immunity is granted. We are never, ever going to know. It will be as if it never happened. As a Member of this body for 26 years, a senior member of the Foreign Relations Committee, I don't have the right to even look at the relevant documents. Only a handful of people have the right to do it. So I am being asked, as a 26-year veteran of this Senate, serving on the Foreign Relations Committee, to grant blanket immunity to the President's favored corporations. I find that rather remarkable. As you know, I have serious doubts about the legality of the corporations' actions, but I would never presume to come to this floor and render a verdict on them. I am not a judge. None of my colleagues are, either, nor is the President of the United States. Just as it would be absurd for me to declare the telecoms clearly guilty, it is equally wrong to declare them effectively innocent. That power belongs to the courts, to the coequal branch of government, the judiciary. To slam the courthouse door shut on American citizens seeking redress would be to forget the meaning of checks and balances in our system of governance altogether. I believe in letting the courts do their job. It seems the President's allies only believe in the courts when the verdict goes their way. They offer any number of arguments for immunity, but one by one, they fail. They are false and often misleading. I would like to take a few minutes to look at those claims and their failures one by one. First of all, immunity supporters argue that granting immunity is a Presidential prerogative. That was one of the arguments made by Alberto Gonzales. The answer to that is, of course, the fact is that this case belongs in the courts. The judiciary should be allowed to determine whether the President has exceeded his powers by obtaining wholesale access to the domestic communications of ordinary citizens without a court order. That is why the courts exist, to determine if the actions by the Chief Executive or the Congress are, in fact, appropriate and proper and legal. Because the telecom corporations are intimately bound up with the President's warrantless wiretapping, immunity supporters are proposing that the President sit as a judge over himself. The administration's original immunity proposal protected not just telecommunications but everyone involved in the wiretapping program. In their original proposal, they wanted to immunize themselves. Think about that. It speaks to their fear and perhaps their guilt, as well: 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 concerned! Thankfully, executive immunity is not part of the bill before us, but the origin of immunity tells us a great deal about what is at stake here. That is, and always has been, a self-preservation bill. Second, immunity supporters claim that only foreign communications were targeted, not Americans' domestic calls. For those who were listening, I just read two documents from an AT&T official of 22 years who was deeply involved in helping set up the very systems, and from Dr. Reid, who then analyzed all the materials that have been presented by Mark Klein to determine exactly how the system worked. The fact is clear: Firsthand evidence, authenticated by corporations in court, contradicts the claim. Splitters at the AT&T Internet hub in San Francisco diverted to a secret, NSA-controlled room every e-mail, every text message, every phone call, foreign and domestic, carried over the massive fiber-optic links of 16 separate companies. Third, immunity supporters claim that the Intelligence Committee version of this bill actually does preserve a role for the judiciary. But, again, the fact is that the role would be empty. The Intelligence version of this bill would require the cases to be dismissed at a word from the Attorney General. The central legal questions raised by these cases would never be heard in court. The cases would never be fully closed. We would never truly know what happened. The fourth argument is that a lack of immunity will make the telecom industry less likely to cooperate with surveillance in the future. However, in the 1970s, FISA compelled telecommunications companies to cooperate with surveillance. In fact, AT&T helped write this law some 30 years ago. But they could only get that cooperation from the telecommunications industry when it is warranted, literally where there is a court order. But if the court order is given, the cooperating telecom is immunized. No warrant, no immunity. 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. The fifth argument immunity supporters offer is that the telecoms cannot defend themselves without exposing state secrets. But the fact is that Federal district court judge Vaughn Walker--I might point out, appointed by a Republican administration--has already ruled on this matter 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 all hardly a secret at all today. We are debating it here, and have been. It is has been in the discussion for weeks on end. You can't claim there is a secret about the surveillance program. As Judge Walker said: The Government has already disclosed the general contours of the Terrorist Surveillance Program, which requires the assistance of a telecommunications provider. The sixth argument offered by supporters of immunity claims that telecom companies are already protected by common law principles. But again, the fact is that common law immunities do not trump specific legal duties imposed by statute, such as the specific duties to protect customer privacy that Congress has long imposed on these telecommunication companies, going back almost 30 years. In the pending case against AT&T, the judge has already ruled unequivocally, and I quote: That AT&T cannot seriously contend that a reasonable entity in its position could have believed that the alleged domestic dragnet was legal. Even so, the communication company defendants can and should, I believe, have the opportunity to present these defenses to the courts. I am not suggesting by that quote that there ought to be a predetermined verdict. As I said a moment ago, I am not pretending I am a judge here. All I am asking is that these cases go forward and a determination made as to whether they were legal. The defendants can and should have the opportunity to present these defenses to the courts; and the courts, not the Congress preemptively, should decide whether they are sufficient. The seventh argument offered by the supporters of the retroactive immunity says that leaks from the trial might damage national security. We heard this argument from my good friend from Virginia, Senator Warner. But the fact is, our Federal court system has already dealt for decades with the most delicate national security matters, building up expertise in protecting classified information behind closed doors in what are called ex parte and in camera proceedings. We can expect, I think, no less in these cases as well. If we are 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 to be exposed. And we can say so with increasing confidence, because after the extensive litigation that has taken place at both the district court and circuit court levels on this matter already, no sensitive information has leaked out. I think it is a red herring to suggest somehow that you cannot go to court here when we have proved for decades the courts' ability to handle national security matters without leaking. An eighth argument offered by immunity supporters claims that litigation will harm the telecoms by causing them ``reputational damage.'' The fact is there is no evidence that this legislation has reduced or would reduce the defendant companies' bottom lines or customer base. This morning I quoted from the Dow Jones Market Watch. The date is October 23, 2007, well after the reports were out about AT&T's involvement in the surveillance program. Third quarter earnings rose 41.5 percent. Boosted by the acquisition of BellSouth and the addition of 2 million net wireless customers, AT&T's net income was $3.06 billion, compared with $2.17 billion a year ago. Hardly a company that is suffering reputational damage. AT&T has posted these record profits during a time of very public litigation. So the argument that reputational damage somehow prevents us from going forward has no basis in fact. But moreover, to claim that ``reputational damage'' ought to trump our rights and liberties--I find it frightening that anyone in government would even make that argument. To say that a violation of millions of Americans' privacy over 5 years is outweighed by the potential for reputational damage is to show a rather extraordinary lack of balance when it comes to understanding the relative importance of these issues. A ninth argument made by those in favor of retroactive immunity claims that these lawsuits could bankrupt the telecommunications industry. But the fact is that only the most exorbitant and unlikely judgment could completely wipe out such enormous corporations. To assume that the telecommunications industry would lose and that the judges would then hand down such back-breaking penalties is already to take several leaps from where we are today. The point, after all, has never been to cripple our telecommunications industry; the point is to bring checks and balances back to domestic surveillance. Setting that precedent would hardly require a crippling judgment. But on another level, immunity supporters are staking their claim on a dangerous principle: that a lawsuit can be stopped simply on the basis of how much a defendant stands to lose. The larger the corporation, in other words, the more lawless it could be. If we accept the immunity supporters' 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. We see then none of those arguments for immunity stand up to the test. All nine of them fail. I am not here again to render judgment on the telecom corporations. I have my doubts, but that's not why I'm here. All I am suggesting is that when you grant this kind of immunity once, what is to stop someone from making that argument again, in a later debate, when maybe someone will be asked to collect information about our medical histories or our financial records or some other personal matters? They would wave that vote back in our face: Democrats, Republicans found no difficulty in granting retroactive immunity for telecommunications surveillance; why would you object today when it comes to people's medical records, or their financial records, or other private information? You start down that slippery slope, and nothing good can come of it. This ought not be a difficult debate. So I am surprised and stunned to listen to some of my more conservative colleagues here. I used to associate conservative principles with standing up for privacy, a principle once held sacrosanct. It is rather stunning to me today to listen to some of the more conservative Members argue for retroactive immunity, that somehow it was all right for those companies to do what they did. I hear that they did not know any better, that somehow they got drawn into this by mistake. If that were true of every one of them, well, maybe that point would have a little more weight. But there were companies such as Qwest that said, ``No, give me a court order, and then I will comply.'' Why did the Qwest lawyers arrive at a different decision? Was it a great secret within the telecommunications industry that there were those who said no? Why did Qwest say no and others say yes? I believe they understood the law, and they realized that without a court order they could not legally comply with that request. I might point out that no court order was ever forthcoming. Why did not the administration seek that court order for Qwest to get additional information? Why did they drop that kind of request? I might point out, as I did earlier today, that over the years, I am told by The Washington Post, there have been over 18,000 requests of the FISA Court for court orders, and of more than 18,000 requests, only 5 have been rejected. 99.9 percent of the requests by administrations for court orders over the years in the FISA Court have been granted. Why would you not ask? Why did they not go forward and make that request? Why did Qwest say no? Why did the others say yes? Why are we granting immunity to these companies, without going through the courts of law to determine what is right? Again, this ought not be a debate between Democrats and Republicans and conservatives and liberals. It ought to be a debate about defending these basic rights we have here in America. Companies that may have violated them deserve their day in a court of law. But immunizing them for a program that went on for not for a day or two or a week or 6 months or even a year, but for 5 years and only stopped when exposed by a whistleblower ought to cause all of us to pause. Clearly we want to keep our country safe, but if we are being asked to keep our country safe by giving up our rights, then we are granting these jihadists and terrorists victories far beyond anything they have yet achieved. As tragic as the events of 9/11 were, if we begin to undo our own liberties and rights, we give them a success far beyond anything they could have ever imagined. I have been here today for the last 8 hours, and I will stay here for as long as it takes. At the appropriate time, when we have exhausted the ability to talk about it generally, I will offer the language to strike it, and I hope my colleagues will join me in that effort. But I am determined not to let this go forward, because I think we have done that too often. I myself have been guilty of accepting far too much from this administration. Just one small thing is at issue today. But then I start to look back at all of the small things that have been done, so- called ``small things'' over the last 5 or 6 years--most recently, the destruction of interrogation tapes at the CIA. And the combined weight of these ``small things'' truly frightens me. What was going on at the CIA? Why did that happen? Why Abu Ghraib? Why Guantanamo? Why get rid of habeas corpus? Why bring back waterboarding? Why do away with the Geneva Conventions? Why nominate someone to be the Attorney General who believes that Presidents have the right to violate Federal statutes here under the guise of protecting the Nation's security? Why, after each one of those these things? Why the Military Commissions Act? In case after case after case, we see the slow erosion going on. And again, regardless of what your politics are, regardless of where you find yourself on the spectrum, when our basic rights are involved, we must stand up and say, ``Enough!'' A generation ago, Members of this body sat here, and had only one negative vote as they worked out the original FISA law, that balance between our needs to protect our security and to protect our rights. Here we are about to make a major step in the opposite direction. And those gentlemen faced tough times. They were wrestling with the threat of nuclear war in the 1970s. The Soviet Union still existed. They had been through World War II, many of them, Korea and Vietnam. They knew what hostility and difficulty were like. And yet Democrats and Republicans came together and wrote that legislation. On 30 separate occasions since then they modernized it to keep pace with the changes occurring throughout the world, where new risks and new dangers are posed every day. So yes, we should modernize FISA and bring it up to date. I applaud the committees' efforts to do so. But to add retroactive immunity, to grant blanket immunity to companies that listened in on millions of people in this country without a court order, is a step too far. Listen to the remarks of our colleague from Massachusetts today in talking about the legal counsel of this administration. Their words: to blow through these laws. They did not like them? Blow through them! That was their attitude. Well, I am going to stop the blowing through. No more blowing through the laws. Not here, not tonight, not this Member, not on this bill. No more blowing through the law! You do not get immunity, not as long as I can stand here and fight this. I intend to do just that. Madam President, I withhold the remainder of my time, and I suggest the absence of a quorum.

Mr. DODD. Mr. President, will the Senator yield for a question?

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

Mr. DODD. Mr. President, I understand the 60-vote majority, but I have a germane amendment that strikes a provision in the bill. I understand the rules. When something is nongermane or violative of the rules of the Senate and you want to waive the rule, you have a supermajority requirement, but not on an amendment pertaining directly to the bill that strikes a section of it. I understand there is opposition to it, but having to reach a supermajority on an amendment that strikes something in the bill that is of significant disagreement seems to be excessive at this point. This is an important piece of legislation, and the Judiciary Committee voted differently than the Intelligence Committee on this matter. We feel strongly about this. If I were offering something that is violative of the Senate rules, I would accept a supermajority. But to establish the precedent here that any amendment to be offered to this bill will be subjected to a supermajority vote I think is too excessive. That is my concern. Tell me I am wrong about that, that I am violating the rules of the Senate, and I will accept that. But if we are establishing that simply on any amendment that is different, I think that is a direction in which we should not go.

Mr. DODD. Madam President, let me begin by thanking my colleague from California, Senator Boxer, not only for her generosity in giving me some additional time, but also for her comments regarding the underlying discussions on the FISA legislation and the provisions of the law before us for our consideration. I appreciate her comments and her thoughts on the subject matter. I have already spoken at some length on FISA this morning, on these amendments, this new legislation before us, and my concern for what I consider to be the most egregious provision in this proposed legislation--that is, the retroactive immunity for the telecommunications industry that may have helped the President break the law. I have objected to that immunity on some very specific grounds because it would cover up an immense violation of trust, privacy, and civil liberties in our country. This was not some small matter. It was not a one-time event. It went on for 5 years, in an elaborate and extensive way. But even more importantly, immunity is wrong because of what it represents. This is a fatal weakening of the rule of law which shuts out our independent judiciary and concentrates power in the hands of the executive. FISA, as we have seen, was written precisely to resist that concentration. That the motivation in 1976-1978 when this legislation was drafted: making sure we could bridge this gap between security and rights, protecting both our security and our fundamental liberties. When we divide that power responsibly between the legitimate legislative, judicial, and executive branches, terrorist surveillance is not weakened; it is strengthened and made more judicious and more legitimate and less subject to the abuses that sap public trust. But when millions of people, for over 5 years, had their private communications interrupted by the telecommunications industry, without a court order--which is what the law requires--the spirit of FISA has been undermined, and the public trust has been sapped. That, Mr. President, compromises our security. I firmly believe, therefore, that any changes to FISA must be in keeping with its original spirit of shared powers, respect for the rule of law. If we act wisely, we can ensure terrorist surveillance remains inside the law and not an exception to it. The Senate should pass a bill doing just that, and we will have the opportunity to do so; but the FISA Amendments Act, as it comes to us from the Intelligence Committee, is not that bill. Its safeguards against abuse, against the needless targeting of ordinary Americans, are far too weak. The power this bill concentrates in the hands of the administration is far too expansive. However, the Senate also has before it a version of the bill that embodies a far greater respect for the rule of law. The version crafted by the Senate Judiciary Committee substituted a completely new title I and was reported out on November 16. Both versions of the bill authorize the President to conduct overseas surveillance without individual warrants. Let me repeat that: both bills--both versions of the bill authorize the President to conduct overseas surveillance without individual warrants. Madam President, I see my colleague from California arriving on the floor, so I will yield the floor to her. I will ask when I come back to pick up my remarks as if uninterrupted, when the Senator from California completes her remarks; or the Senator from Missouri may have some thoughts on this legislation, and I will be more than happy to yield to him, as well, before coming back to the remarks I was in the midst of giving. But I appreciate the opportunity to address the subject of retroactive immunity, which is the reason I am here on this matter today. So I look forward to hearing from the Senator from California, and I am withholding my time, and I yield the floor.

Mr. DODD. Mr. President, will my colleague yield?

Mr. DODD. Mr. President, I wish to commend the Senator from Massachusetts for his statement this afternoon. He has captured the essence of all this and the importance of the issue in Title II. He made very many good points. But one point he made said it all: that the President of the United States would veto the FISA legislation if he does not get immunity for the phone companies. This administration would risk the entire law--a law designed to improve our surveillance of terrorists, while respecting privacy--simply to protect a handful of companies. Those are the lengths to which President Bush is prepared to go. I think the Senator from Massachusetts made this point, but it is worth repeating: Not every company did what the administration asked them to do. There were those that stood up and said: ``No. Give me a court order, and I will comply under the law.'' They should be commended for what they did. For those that said, ``We were just doing our patriotic duty,'' their legal departments were not made up of first-year law students. They knew what the law was. Yet they may have violated it and are now seeking immunity. So I commend my colleague. I am going to offer--when I get a chance-- an amendment that strikes title II from the legislation. I hope every Senator here supports it. This ought not be about party or ideology. It is about our Constitution. The FISA law is a good law. It has protected us for almost 30 years. But it should not sanction retroactive immunity for a handful of phone companies that eavesdropped on millions of people's conversations. So I commend my colleague for his words.

Mr. DODD. Mr. President, if I may further inquire of my colleague from Massachusetts, I was intrigued to learn how many the Washington Post recorded. I heard no one argue with these numbers. One of the arguments we have heard is that the FISA Court may not have been willing to agree with these court orders to the phone companies--not that that argument was even remotely legitimate. The Washington Post reports that over the years, there have been over 18,000 requests for FISA court orders. Of those more than 18,000 requests, 5 have been rejected--5. So with over 18,000 requests, for 99.9 percent of those requests, that court has acquiesced to administration appeals 99.9 percent of the time. So the idea this court was somehow going to serve as an obstruction to the administration's desire to get legitimate information is certainly belied by the statistics. I point that out to my colleague.

Mr. DODD. I was in the midst of giving some remarks earlier, and my colleague from California, Senator Feinstein, came on the Senate floor. I know she wanted to share her thoughts, so I yielded the floor to her to allow her to speak. I see my friend and colleague from Missouri is here. I know we have gone back and forth. I understand how this works. I don't know if he has some remarks he wants to give.

Mr. DODD. Fine.

Mr. DODD. Mr. President, on this last point: obviously we are in public session, and the last thing I want to do is have the Senator from Oregon talk about what is in these documents; he cannot do that. But I am struck by the passion with which he just spoke about those documents and the value of having Members of this body see them, particularly considering the vote we are about to cast. If this bill is adopted with retroactive immunity, then this issue disappears; it goes away forever. There will be no court proceedings, nothing. We will never have the opportunity to know until, perhaps, some of these documents might be released decades down the road under the Freedom of Information Act. But I am struck by the Senator's passion in arguing that if people read these documents and saw them, they would have a very difficult time supporting the provision in this bill that grants retroactive immunity. Is that the suggestion the Senator has made by those comments?

Mr. DODD. As a senior member of the Foreign Relations Committee, I do not have the right to see these documents?

Mr. DODD

Mr. DODD. I ask unanimous consent that the amendment at the desk be considered and agreed to; the committee-reported amendment, as amended, be agreed to; the bill, as amended, be read a third time, passed, the motion to reconsider be laid upon the table, and that any statements related thereto be printed in the Record.

Mr. DODD. Mr. President, I ask unanimous consent that the Senate proceed to the immediate consideration of Calendar No. 539, S. 2096.

Mr. DODD

Mr. DODD. Mr. President, I ask unanimous consent that the Senate concur in the House amendments to the Senate amendment, and the motion to reconsider be laid upon the table.

Mr. DODD

Mr. DODD. Mr. President, I ask unanimous consent that the Senate proceed to the immediate consideration of Calendar No. 515, H.R. 3703.

Mr. DODD. Mr. President, I ask unanimous consent that the bill be read the third time, passed, and the motion to reconsider be laid upon the table, and that any statements relating to the bill be printed in the Record.

Mr. DODD

Mr. DODD. Mr. President, I ask unanimous consent that the Senate proceed to the immediate consideration of Calendar No. 537, S. 781.

Mr. DODD

Mr. DODD. Mr. President, I ask unanimous consent that the Senate now proceed to the consideration of S. Res. 408 which was submitted earlier today.

Mr. DODD. Mr. President, I ask unanimous consent that the resolution be agreed to, the preamble be agreed to, and the motion to reconsider be laid upon the table.

Mr. DODD

Mr. DODD. Mr. President, I ask unanimous consent that the Judiciary Committee be discharged from further consideration of H. Con. Res. 264, and that the Senate then proceed to its immediate consideration.

Mr. DODD. Mr. President, I ask unanimous consent that the concurrent resolution be agreed to, the preamble be agreed to, the motions to reconsider be laid upon the table; that any statements relating thereto be printed in the Record.