Russell Feingold

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I am pleased we have had a chance to debate S. 2633, the Feingold-Reid bill requiring the safe redeployment of our troops from Iraq. I am very grateful to the majority leader for allowing this debate and for cosponsoring this legislation. He is a strong opponent of the war, and he understands how it is distracting us from our top national security priority: defeating the global threat presented by al-Qaida and its affiliates. While the debate on Iraq is refreshing, the Republicans still will not allow us to actually vote on the bill. In fact, if you listened to the other side during this debate, it was apparent they believe leaving large numbers of U.S. troops in Iraq indefinitely for an open-ended military mission is somehow in our country's interest. The American people must be scratching their heads and thinking: What is it going to take to get those folks in Washington to listen to us? I can assure them--and I can assure my colleagues--we will have more debate and votes on Iraq. Members will have still more opportunities to listen to their constituents, and to listen to the warnings about the global threat from al-Qaida and the intolerable strain on our military. And they will again have to decide whether to keep ignoring those warnings and give the President the green light to continue a war without end in Iraq. In a few minutes, the Senate will vote in relation to another Feingold-Reid bill, S. 2634, addressing al-Qaida. Before I discuss that bill, I wish to respond to some of the criticisms that have been leveled against the Feingold-Reid Iraq redeployment bill. I am glad some of my colleagues have apparently taken the time to read the Iraq bill, but I wish some of them had read it a little more carefully, or thought a little harder, before voicing some of their concerns. Of course, some of the criticisms come from Members who have no interest in stopping or slowing down the war. But I have even heard a few complaints from Members on our side who oppose the war. In fact, some Democrats seem to be trying a lot harder to come up with arguments against this bill, and against Congress acting, than they are trying to end the war. One or two senior Democrats are actually lobbying hard behind the scenes against the Feingold-Reid bill. That is disappointing, to say the least, and it shows us all what we continue to be up against as we try to bring this war to a close. Let me start by pointing out that the Feingold-Reid bill does not-- does not--restrict the Government's ability to go after al-Qaida and its affiliates around the globe. In fact, one of the main purposes of the bill is to ensure we have the full capability to do just that. When it comes to our troops in Iraq, however, we cannot allow this President to use the narrow exceptions in this bill to continue his misguided policies. The language in the bill has been crafted to try to ensure the administration does not--and cannot--continue to maintain a heavy military footprint in Iraq. Specifically, the first exception in the Feingold-Reid bill allows funding to continue for ``targeted operations, limited in duration and scope, against members of AQ and affiliated international terrorist organizations.'' This provision allows operations against AQ in Iraq because fighting al-Qaida is central to our national security. But it does not allow the President to continue the current opened-ended mission because it is not in our national security interest to leave our troops on the front lines in the middle of an Iraqi civil war. The ``limited in duration and scope'' language prohibits operations without a clearly defined counterterrorism objective, such as the current open-ended mission. And, of course, this provision, like the rest of the bill, only applies to Iraq. It does not affect any other U.S. operations around the world. But if my colleagues are particularly troubled by this ``duration and scope'' language, I am open to discussing with them any reasonable modifications that do not open new loopholes. And this is no reason to completely block the Senate from even considering the bill. My colleagues are free to try to amend it, if they will only let us take it up. If my colleagues think we should have U.S. troops conducting operations in Iraq against other organizations that are not affiliated with AQ, then we do, in fact, have a difference of opinion. We need to be clear about our priorities. Our top national security priority is the threat posed by al-Qaida and its affiliates. Pitting our brave men and women in uniform against groups or entities in Iraq that do not pose a direct threat to the United States is a misuse of our resources, and it is exactly that mistake I am trying to fix with this legislation. Obviously, at all times, U.S. troops in Iraq will be able to defend themselves against any perceived threat, regardless of who it comes from. But when we are talking about planning and conducting operations, those operations would need to be targeted against members of al-Qaida or affiliates. If we cannot figure out who we are launching operations against, and if we cannot figure out how to distinguish between al- Qaida in Iraq and the many other unsavory actors in Iraq who do not directly threaten our interests, then we have a serious intelligence problem which underscores the degree to which this war is distracting us from our top priority. The Feingold-Reid bill also allows U.S. troops to remain in Iraq to provide ``security for personnel and infrastructure of the United States Government.'' A question has been raised about whether U.S. troops could also provide security for non-U.S. coalition forces under this provision. Of course, the vast majority of foreign troops in Iraq are U.S. troops. We are the ones holding the bag there, and that is a direct result of this administration's decision to rush to war without building a strong, sustainable coalition. So raising concerns about non-Iraqi coalition forces is largely a red herring. However, I respect the contributions of those coalition troops, and I would be open, again, to discussing ways in which we can ensure they are protected without opening up a big loophole to keep a lot more U.S. troops there. Again, technical concerns such as this are no reason to block us from even considering the bill. Frankly, it sounds like an excuse not to deal with the real issue, which is our need to get out of this situation. The Feingold-Reid bill also permits U.S. troops to be stationed in Iraq to provide ``training to members of the Iraqi Security Forces who have not been involved in sectarian violence or in attacks upon the U.S. Armed Forces. . . .'' This does not require any kind of guarantee that ISF troops receiving training have not been involved in sectarian violence or attacks upon the U.S., as some have suggested. It just requires some good-faith effort to make sure we are not assisting some of the very people responsible for destabilizing Iraq and killing Americans. That seems pretty reasonable, doesn't it? Just kind of a good-faith effort to make sure we are not helping people who have already killed Americans. One would think that was reasonable. This should not be controversial. We have a policy as a government of not supporting militaries around the world that commit undisciplined acts of violence, and this administration ostensibly vets foreign militaries thoroughly under what is known as the ``Leahy Law.'' I do not see why we should make an exception for Iraq, particularly when the GAO and General Jones have issued reports showing that the ISF is compromised by militias. If we continue to arm and train the ISF, we may simply be contributing to ongoing instability in Iraq. At a minimum, then, we need to be careful to ensure we are not giving some of the worst actors in Iraq the tools to perpetuate further violence and bloodshed. Oh, and by the way, we have already trained over 439,000 ISF personnel. This certainly raises questions about how much more training they need. We need to make sure the President cannot keep tens of thousands of troops in Iraq policing the civil war under the guise of ``training.'' Indeed, the ``training'' U.S. military personnel in Iraq are providing is not what is traditionally thought of as training, such as boot camp. Our training is all field training, and there is no bright line between training and joint operations. Now, some folks here think that is fine. They want U.S. troops to continue being embedded with Iraqi troops, conducting joint operations. The Feingold-Reid bill would not foreclose all joint operations or the equipping of ISF. U.S. troops could continue to conduct joint counterterrorism operations with ISF so long as the operations target al-Qaida or affiliated international terrorist organizations. But U.S. troops could not be embedded with Iraqi Security Forces for ``training'' purposes. And the U.S. may continue to equip ISF but may not deploy U.S. troops to Iraq solely for this purpose. Some on our side want U.S. troops to continue providing ``logistical support'' to Iraqi forces indefinitely. This, again, is a backdoor way to keep substantial numbers of U.S. troops on the front lines, performing basic combat support functions, such as providing air support. Even seemingly run-of-the-mill logistical operations can be extremely dangerous in the chaotic environment in Iraq. That is not in our national security interest, and it is not something we should permit. We need a full redeployment, not a halfhearted half measure. I hope my colleagues will rethink their opposition to the Feingold- Reid bill. If they do have these kinds of concerns about it, particularly some of the more technical concerns I have addressed, well, let's actually allow the bill to come to the floor and let's have amendments and votes. That is our responsibility as legislators, and we owe it to our constituents and our men and women in uniform to have this debate in the open and on the record.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, the Senate will vote later today in relation to two bills I recently introduced with Majority Leader Reid addressing the war in Iraq and the disastrous toll it continues to take on our top national security priority, the global fight against al- Qaida. Many of my colleagues have expressed concern that the exhausting rate of deployments in Iraq and the resources we are committing to that country are undermining our ability to protect ourselves at home and respond to dangers abroad, including the deteriorating situation in Afghanistan and the global threat posed by al-Qaida. While we all hope that the recent decline in violence in Iraq will hold, lasting stability remains elusive and there is a serious danger that our troops will remain mired in Iraq while our ability to combat al-Qaida elsewhere and protect ourselves at home continues to deteriorate. Senator Reid and I have introduced two bills to address these problems head-on. One of these bills, S. 2633, is similar to legislation we have offered before. I am pleased that this bill is also cosponsored by Senators Boxer, Brown, Byrd, Cardin, Clinton, Dodd, Durbin, Harkin, Leahy, Menendez, Obama, Sanders, Schumer, Whitehouse, and Wyden. It requires the President to safely redeploy U.S. combat troops from Iraq with very narrow exceptions. Effective 120 days from enactment of this bill, U.S. troops could only remain in Iraq for the following purposes: conducting targeted military operations against al- Qaida and its affiliates, providing security for U.S. personnel and infrastructure, providing limited training of Iraqi Security Forces, providing equipment and training to our own troops, and continuing to redeploy from Iraq. Unlike previous legislation I have offered, this bill does not have an end date for redeployment. Some of my colleagues who oppose the war have expressed concern about Congress setting such a date, and in drafting this legislation we have tried to address their concerns. By not including an end date, we are trying to provide additional flexibility in how the troops are redeployed. And we are also making doubly clear that at no point will funding be denied to the troops-- they will continue to be fully funded throughout their redeployment. If there is no end date for redeployment, then (what is to stop the administration keeping troops there indefinitely? The answer is that, after 120 days, troops can only remain in Iraq for the narrowly defined purposes in the bill. Because these exceptions are so narrow, the bill removes any incentive for the President to delay or ``slow walk'' redeployment. Now, some on the other side are arguing that this new bill is tougher than previous versions, because the funding restriction kicks in sooner, in 120 days. Of course, these are the same people who oppose any limitations on the war, so I don't take their arguments too seriously. I suspect they haven't actually read the new bill, or they would realize that the bill is quite a bit more flexible, for the reasons I just mentioned. Right now, the administration is considering various ``drawdown'' plans, all of which would leave well over 100,000 troops in Iraq through the end of the year. That would continue to require an exhausting rate of deployments that we simply cannot afford--for our military readiness, our fiscal bottom line, and our national security. This administration has put Iraq first for too long. In an effort to refocus our national priorities, the second bill Senator Reid and I have introduced with Senators Boxer, Brown, Byrd, Cardin, Casey, Clinton, Dodd, Harkin, Lautenberg, Leahy, Menendez, Obama, Schumer, and White-house, would require the administration to come up with a strategy to wage a comprehensive, global campaign against al-Qaida, without undermining our military readiness. The legislation, S. 2634, does this by requiring a comprehensive report from the Secretaries of Defense, State and Homeland Security, working in coordination with the Chairman of the Joint Chiefs of Staff and the Director of National Intelligence. The report will examine the threat posed by al-Qaida and affiliates around the world and recommend ways to ensure that our national security assets are properly deployed to address this threat. To be clear, I am not just talking about military assets, we also have intelligence, diplomatic and other assets that we need to use to defeat al-Qaida. We can't just rely on boots on the ground--we need to use all of the other facets of U.S. power, including aggressive public and private diplomacy, to counter al-Qaida. Some of the information called for in this bill will probably need to be contained in a classified annex. But there is no reason the administration cannot also provide a public report identifying in broad terms the threat we face and how to respond to it. The American public should be kept as informed as possible about how we are protecting them from the number one threat we face. I know some of my colleagues do not want to be talking about Iraq again. I know some of them complain that we spent too much time debating Iraq last year and I know some of them have concerns about whether now is the right time to bring these bills up for a vote. But we cannot allow the focus on Iraq to fade because violence has declined in parts of Iraq. It is true violence levels are down to where they were in 2005, but Iraq is still extremely and unacceptably violent, as it was in 2005. Violence has risen in Mosul and in the south, and U.S. casualty rates in January were higher than in December. All is not calm in Iraq, as the administration would have you believe. Moreover, the surge has not brought Iraq any closer to legitimate political reconciliation at the national level--and it may, in fact, have undermined the prospects for such reconciliation in the long term. The President's policies have empowered former insurgents and militia- infiltrated security forces with questionable loyalties. By supporting sheiks in al Anbar--and elsewhere--we may have reduced violence in the near term, but only by making it more difficult to achieve national reconciliation in the long run. The Director of National Intelligence, or DNI, testified this month that many Sunnis who participate in local security initiatives remain hostile to the Shi'ite leaders in Baghdad, and that some of those leaders see the Sunnis we are supporting as ``thinly disguised insurgents'' who are plotting against them. Mr. President, we cannot, and should not, ask our brave men and women in uniform to resolve these sectarian disputes. Military operations are not a substitute for a viable political settlement, and the American people are simply not willing to leave our troops on the front lines indefinitely in hopes that some day such a settlement will arrive. Recent gains in Iraq are tactical successes at best, devoid of an overarching strategy to integrate local powerbrokers into a broader national framework. Our presence has only added to the complexities in Iraq as we meddle in local dynamics and contribute to internal divisions and sectarian tensions. Keeping a significant military presence in Iraq will not bring lasting stability to that country. Indeed, the Iraqi people and the Iraqi parliament continue to oppose an open-ended U.S. military presence in their country, which is something they have in common with the American people. Keeping our troops in Iraq will not solve Iraq's problems, and it won't help us address the growing threat posed by al-Qaida around the world. It makes no sense to devote so many of our critical resources and so much of our attention to one country, rather than to the global fight against al-Qaida. Every year, I hold town hall meetings in each of the 72 counties of Wisconsin, and over the January and February recess I held some 30 meetings in some of the most conservative parts of the state. I didn't bring up Iraq at those January meetings because I wanted to see whether it was still a major concern, particularly with these audiences. And guess what, in every single meeting, they brought it up with me. And they didn't just bring it up, they asked what we are doing to bring home the troops. But I had to tell them that, instead of getting out of Iraq, we will likely be sending one-third of the members of the Wisconsin National Guard back to Iraq next year, many of whom have served within the last 2 or 3 years. They will be torn from their family, their jobs, their communities, to be put in harm's way, all in order to create space for a political reconciliation in Iraq that is always just over the horizon. They will not be there to protect the people of Wisconsin in the event of an emergency, nor will they be reinforcing our troops in Afghanistan, who face what one recent report described as a ``stalemate'' in fighting al-Qaida's ally, the Taliban. Like Americans all across the country, the people of Wisconsin don't think this makes sense. They want an end to our involvement in this war in Iraq, and they want to know what's stopping us from making it happen. This administration has been so distracted by Iraq that it has neglected to address the top threats to our national security. It has allowed security conditions in Afghanistan to deteriorate tremendously, to the point where former NATO Commander General Jones recently concluded that we are in a ``strategic stalemate.'' I need hardly remind my colleagues that this is the country from which al-Qaida launched the 9/11 attacks, and where it continues to operate. While agreeing to provide 3,200 U.S. troops to Afghanistan, Secretary Gates has also requested additional ground troops from our allies. If our allies are unwilling to provide those troops or worsening conditions require additional troops, it is far from clear that we will have the forces we need in Afghanistan without further undermining military readiness and homeland security. Across the Afghan border, in Pakistan, things are also looking bad. The Director of National Intelligence testified recently that ``al- Qaida's central leadership based in the border area of Pakistan is al- Qaida's most dangerous component.'' The DNI also said that since the middle of 2006, there has been an influx of ``new Western recruits'' into this part of the world, an indication that al-Qaida is ``improving the last key aspect of its ability to attack the United States: the identification, training, and positioning of operatives for an attack in the homeland.'' His testimony closely echoed his warnings from almost a year ago when he noted that future attacks against our nation were likely to come from that part of the world. It is worth mentioning that this is the same exact warning we received from the July 2007 NIE, which assessed that al-Qaida has regenerated and reconstituted itself in the Pakistan-Afghanistan border region. The administration has made matters worse by associating itself with an undemocratic, authoritarian regime in Pakistan, one that the Pakistani people, finally given the chance to make their voices heard, roundly rejected. In return for questionable anti-terrorism assistance, we have given the Musharraf regime billions of dollars, not to mention the cost to our credibility, and to our ability to build strong, sustainable partnerships in Pakistan. Our endless presence in Iraq is distracting us from these core threats to our national security. Instead of dancing around these vital concerns, we need to address them head on and that is why we need a strategy for defeating al-Qaida and its affiliates around the globe. We need a strategy which identifies the gravest threats to our national security and makes recommendations for addressing them with both military and nonmilitary initiatives. I know there is no silver bullet to defeat al-Qaida. But it has been made very clear to Congress, and to the American public that if we are to protect ourselves at home, there must be a dramatic shift in how we order our national priorities. We cannot continue with the current agenda. We must refocus not just so we have the capacity to respond to other contingencies abroad but also because our heavy footprint in Iraq makes us more vulnerable at home. We need to rebuild our domestic response capability, which has been severely compromised by repeated deployments of our National Guard. As long as we keep over 100,000 troops in Iraq we will have to continue to deploy Guard units in a manner that compromises their ability to prepare for domestic incidents. Deployments to Iraq have left those responsible for protecting us at home with, on average, only 56 percent of the essential ``dual-use'' equipment needed to respond to a domestic incident. Indeed, the National Guard Bureau estimates that it is facing a $47 billion equipment shortfall, including a $20 million shortfall in equipment needed to respond to a chemical, biological, or radiological incident at home, notwithstanding the fact that it is the stated intention of al-Qaida to pursue such weapons. The Commission on the National Guard and Reserves concluded that ``[b]ecause our nation has not adequately resourced its forces designated for response to weapons of mass destruction, it does not have sufficient trained, ready forces available.'' (Disturbance in the Visitors' Galleries).

Mr. FEINGOLD

Mr. FEINGOLD. I wish to ask the Senator through the Chair--he indicated that our strategy vis-a-vis al-Qaida after 9/11 has to do with the doctrine of preemption. I am intrigued by that. I know that was a justification for going into Iraq, but I wonder if the Senator could explain how the doctrine of preemption is going to help us against an organization that is existing in some 80 countries in the world. Are we going to invade and preempt 80 different nations?

Mr. FEINGOLD. Madam President, will the Senator from Georgia yield for a question?

Mr. FEINGOLD. So you are not referring here to the doctrine of preemption to use as a justification for invading Iraq; you are talking about the need for intelligence, is that correct?

Mr. FEINGOLD. Madam President, if the Senator will further yield for a question, I understand what he is saying in terms of the need for intelligence, but the doctrine of preemption that was announced by the President 9 days after 9/11 and through that period was not about intelligence. It had to do with the notion of where we could intervene in various nations. So I am just a little bit confused about that and trying to understand the connection.

Mr. FEINGOLD. Madam President, I appreciate the Senator responding to me. I will simply say that I virtually agree with that general proposition that we need to be able to have the information and we need to stop terrorist attacks, and I am glad we were able to do it in Georgia. But the fact is, al-Qaida is operating in 80 countries around the world, and because of putting so much focus on Iraq, including so much focus of our intelligence system in Iraq, we don't have the adequate resources to preempt terrorist attacks throughout the world. That is the very problem. There are terrorist attacks going on in places such as Algeria and Morocco and Afghanistan and Southeast Asia, and because we are so consumed with Iraq, we can't pursue the very notion of preempting the terrorist attacks to which the Senator from Georgia properly refers. I yield the floor.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I ask unanimous consent that the Committee on Armed Services be authorized to meet during the session of the Senate on Tuesday, February 26, 2008, at 9:30 a.m., in open session in order to receive testimony on the Department of the Army in review of the defense authorization request for fiscal year 2009 and the future years defense program.

Mr. FEINGOLD. Mr. President, I ask unanimous consent that the Committee on Energy and Natural Resources be authorized to meet during the session of the Senate in order to conduct a hearing on Tuesday, February 26, 2008, at 10 a.m., in room SD366 of the Dirksen Senate Office Building. At this hearing, the Committee will hear testimony regarding U.S. oil inventory policies, including the Strategic Petroleum Reserve policies.

Mr. FEINGOLD. Mr. President, I ask unanimous consent that the Committee on Finance be authorized to meet during the session of the Senate on Tuesday, February 26, 2008, at 10 a.m., in room 215 of the Dirksen Senate Office Building, in order to hear testimony on ``Economic and Fiscal Conditions of the States.''

Mr. FEINGOLD. Mr. President, I ask unanimous consent that the Select Committee on Intelligence be authorized to meet during the session of the Senate on February 26, 2008, at 2:30 p.m. in order to hold a closed hearing.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I am pleased to support final passage of the Indian Health Care Improvement Act Amendments of 2007. This bill is long overdue, and I hope that House works expediently to move this bill forward so that we can get this bill to the President and signed into law. Throughout the Senate's work on this bill, I have been impressed with the bipartisan work that Senator Dorgan and the Senate Indian Affairs Committee have put into moving this bill forward. It was not any easy process, but I commend the committee for its ongoing dedication to significant consultation with Indian Country in drafting this bill and seeing it through to completion. There are significant unmet needs in Indian Country throughout this Nation, and addressing the unmet health care needs ranks as one of the most significant problems that we must address. The Federal Government has a longstanding and well-established trust responsibility with regard to American Indian affairs, and this trust responsibility extends to providing good health care to communities throughout Indian Country. For too long, the Federal Government has not lived up to its Federal trust responsibility commitments, but I hope that passage of this legislation will set the Federal Government on a course toward better supporting the needs of our American Indian communities, whether they be health care, education, or housing needs. While this bill is a vital step in the right direction, we need to follow through with fiscally responsible increased funding for the important programs authorized in this legislation. This bill has the support of tribal governments throughout the United States, including the 11 tribes in my State of Wisconsin. I have heard from a number of constituents in Wisconsin about the need to pass this bill this year. The improvements that the legislation will make to various Indian Health Service programs including clinical programs on the various reservations throughout the State and urban Indian programs in Milwaukee and Green Bay are significant, and it is my hope that this bill will help improve the quality of health care provided to American Indians living throughout Wisconsin. Health care is consistently the No. 1 issue that I hear about all over my home State of Wisconsin. When I hold my annual townhall meetings across the State, many people come to tell me about problems with our overall health care system, and data shows us that these problems are often most acutely felt in Indian Country. Lack of access to good health care is a problem that disproportionately affects American Indians throughout the United States. According to recent studies, American Indians and Alaska Natives are 200 percent more likely to die from diabetes, more than 500 percent more likely to die from alcoholism, and approximately 500 percent more likely to die from tuberculosis. Some may doubt whether this legislation is needed or whether it will really help improve the lives of Americans. The staggering statistics that highlight the health care disparities faced by American Indians show just how imperative it is that we pass this legislation, which is long overdue. These statistics also help illustrate the vast amount of work that remains to be done to improve the quality of health care in American Indian communities beyond passage of this legislation. Nevertheless, this bill takes an important first step toward addressing these health care disparities through the many reforms it makes to Indian health care programs. For example, modernizing Indian Health Services programs through this legislation will help to address the diabetes and suicide crises that exist on reservations--just two examples of the many health care issues that impact the daily lives of American Indians across the country. Reauthorization of this bill will help encourage health care providers to practice at facilities in Indian Country and encourage American Indians to enter the health care profession and serve their communities. Recruiting talented and dedicated professionals to serve in IHS facilities, whether urban or rural, is a key challenge facing many tribal communities in Wisconsin and around the country. I hope these provisions will help bring additional dedicated doctors, nurses, and other health care professionals to our tribal populations. This bill also reauthorizes programs that assist urban Indian organizations with providing health care to American Indians living in urban centers around the country. The Urban Indian Health Program represents a tiny fraction of the Indian Health Services budget, but the small amount of resources given to the urban programs provides critical health services to those Indians living in urban areas. Contrary to what some people may think, the majority of American Indians now live in urban areas around the country, including two urban areas in my State--Milwaukee and Green Bay. Throughout our Nation's history, some American Indians came to urban centers voluntarily, but many were forcibly sent to urban areas as a result of wrongheaded Federal Indian policy in the 1950s and 1960s and have since stayed in urban areas and planted roots in these communities. As a result of this movement to urban centers, Congress created the urban Indian program in the late 1970s to address the growing urban Indian population around the country. The Federal Government's responsibility to American Indians does not end simply because some American Indians left their ancestral lands and moved to urban locations--particularly when some of them had little choice in the matter. While this legislation takes important steps toward improving urban Indian health care programs, we need to do much more to support these urban programs, including fighting for increased appropriations. I have been disappointed that the President has proposed zeroing out the urban Indian program in past budgets, and unfortunately, the President's budget request for fiscal year 2009 is no different. As in years past, I have joined with my colleagues to urge the Senate to restore funding for urban Indian programs to the Federal budget for fiscal year 2009, and I hope this year the Senate can also provide a much-needed boost in funding for the urban Indian programs. I voted for an amendment offered by Senators Smith and Cantwell that would permit, but not require, the Secretary of HHS to create an area distribution fund to allocate funding resources for IHS facilities construction to all 12 of the IHS service areas. I have heard a lot of concern from tribes in my State of Wisconsin about the way that construction facility funds are allocated and the fact that certain IHS service areas, including the Bemidji region covering Wisconsin, do not fare well under the current system. I recognize that there needs to be an overall boost in the appropriations for IHS facilities construction to help tribes currently on the construction priority list as well as those tribes that cannot even get on the current list, and I look forward to supporting fiscally responsible efforts to boost funding for various IHS programs, including this one. But in the meantime, we should explore opportunities to address innovative solutions to this problem, and this amendment takes a reasonable approach to addressing this problem. Any efforts to create an area distribution fund should involve significant consultation with tribes throughout Indian Country, and I am pleased this amendment makes clear that such consultation would be required. I also voted for amendment 4032, offered by the Senator from Oklahoma, because it is critically important that sexual assault victims be able to find out whether they have been exposed to HIV. However, I am concerned about the way that the amendment was drafted. If there is a conference on this bill, I would urge conferees to consider making this provision consistent with the existing provision governing the testing of defendants in Federal cases, 42 U.S.C. section 14011, or at a minimum to clarify how it would relate to that law. I also would urge them to ensure that the new provision complies fully with the requirements of the fourth amendment. Mr. President, Indian Country has made many compromises in order to move this bill forward, and passage of this bill is long overdue. The Senate's actions today mark an enormous victory for Indian Country, and I hope that the House will quickly take this bill up so that we can get this bill signed into law by the President this year. This bill takes concrete and positive steps toward addressing some of the health care needs facing American Indian communities around the country, and I look forward to working with my colleagues to build on this legislation in the coming months and years. Challenges facing American Indians throughout the United States extend beyond health care issues into issues of improving economic development, educational opportunities, and affordable and safe housing opportunities, and I hope we can continue to work together in a bipartisan way to pass other important measures this year. Together, tribal nations throughout all our States can work closely with the Federal Government to address the vast array of these unmet needs. Passage of the Indian Health Care Improvement Act Amendments of 2007 today provides an important foundation going forward, and it is up to all of us to see that this foundation is strengthened in the coming months and years.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I support the intelligence authorization conference report, which is so important to Congress's efforts to conduct oversight of the intelligence community. The administration's illegal actions and its relentless efforts to obtain vast new eavesdropping authorities make oversight more important than ever. I particularly support the provision limiting interrogation techniques to those authorized by the Army Field Manual. I was a cosponsor of this amendment when it was offered in conference, and I am pleased that it has the support of bipartisan majorities of both the Senate and House Intelligence Committees. It represents, at long last, an important step toward bringing this administration into conformity with the law and with our national principles. It also represents a clear decision by the very Members of Congress who have been briefed on the CIA's interrogation program that the use of so-called enhanced interrogation techniques is not in our country's best interests. When the intelligence authorization bill was marked up by the committee in May, I made my position clear. I could not support the CIA's program on moral, legal, or national security grounds. When I was finally fully briefed on the program, it was clear that what was going on was profoundly wrong. It did not represent what we, as a nation, stand for, or what we are fighting for in this global struggle against al-Qaida. And it was not making our country any safer. I also concluded that if the American people knew what we in the Intelligence Committee knew, they would agree. The program also cannot stand up to any serious legal scrutiny. To take just one interrogation technique that the administration has acknowledged using in the past, waterboarding is torture, pure and simple. Everyone knows this. The rest of the world knows this. And, in every other context, our own government knows this. What Orwellian world do we inhabit in which the administration attempts to argue otherwise? And in what world does waterboarding not ``shock the conscience,'' the test required by the Detainee Treatment Act? I suspect that the administration knows full well that its legal justifications for the program are empty, and that is why the Attorney General has refused to tell Congress why he believes the program is legal and has instead referenced Justice Department analyses that have also been withheld from Congress. The CIA's interrogation policy is undermining our ability to fight al-Qaida. It has diminished our standing in the world, precisely when we should be providing global leadership against this growing threat. And it has denied us the moral high ground that is so critical if we are to reach out to parts of the world in which al-Qaida seeks to operate and recruit. By passing this conference report, we can begin to reverse this damage. We can also, finally, reassure our troops that torture is torture and that if you are captured by the enemy, the American government will not equivocate about the Geneva Conventions protections to which you are entitled. The administration has repeatedly attempted to sell this program by arguing that Members of Congress have been briefed, as if the mere fact of telling members of Congress means that the program must be legal. The President made this argument last fall. And the Director of the CIA did so again last week. But, what the administration always fails to mention is that as members of the Intelligence Committees have learned about the program, opposition has steadily increased. I have sent a classified letter detailing my serious concerns and so, too, have others. And now, we have bipartisan majorities of both intelligence committees saying ``enough is enough.'' It has long been my position that interrogation techniques should be limited to those authorized by the Army Field Manual. This approach brings the CIA into conformity with the rules by which our men and women in uniform defend our nation and themselves. We fought Nazi Germany and the battles of the Cold War without resorting to government-sanctioned torture. We can surely defend America and defend our principles now. It is time to bring an end to this stain on our Nation, and to make the American people proud again.

Mr. FEINGOLD

Mr. FEINGOLD. Madam President, I would like to take a moment to note the violent attacks which took place earlier this week on the President and Prime Minster of East Timor, or Timor-Leste as it is also called. The people of East Timor have experienced far too much violence for such a small nation and it is time, once again, for the world to renounce violence as a means to achieving any political agenda. I condemn such acts and urge all parties to seek legitimate peaceful--and political--means to ensure their voices are heard. Earlier this week, President Jose Ramos Horta was shot by rebel soldiers. This band of rebels, led by the infamous Alfredo Reinado, attacked President Ramos-Horta outside his house. As a longstanding advocate of East Timor's self-determination, I have met President Ramos-Horta and am very troubled by this attempt to take his life and to undermine East Timorese stability and independence. President Ramos Horta is a Nobel Peace Prize winner and is known for his leadership of a nonviolent struggle against the Indonesian occupation. It is precisely because of these honorable principles that he has espoused, in the face of repeated violence, that I am doubly concerned by this recent attack. I am also worried that this violent act could affect the stability and progress of this young country and am pleased that Australia has agreed to send additional soldiers and police officers to address any unrest that might occur in the aftermath of this heinous attack. I have followed East Timor's ongoing transformation very closely since the disastrous crisis in the late 1990s and have been so pleased to see its successful transition from Indonesian occupation to a U.N. administration to an independent nation over the years. Certainly East Timor's path forward has not been free from challenges but it has moved consistently in the right direction. I have long supported a robust U.N. peacekeeping mission there, I pressed the administration to take a hard line with the Indonesia military as a result, in part, of its actions in East Timor, and I spoke out against the renewed unrest in 2006 which led to a collapse of many key institutions and once again required the international community to step in and play a key role in security reform. We cannot overlook the significance of these attacks in East Timor as the country stands to chart a course for emerging democracies around the world. A stable East Timor sends a signal that the international community can work collaboratively and consistently for the betterment of a nation--and a people. East Timor has received significant multilateral support over the years and if it fails to develop into a fully functioning and stable democracy, we will need to reexamine what kinds of commitment our nation truly makes to young democracies striving to succeed. For these reasons, I hope this incident is little more than a blip on the radar for Ramos-Horta and that his recovery is a speedy one so he can return to the helm of leadership and finish his term as President.

Mr. FEINGOLD

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

Mr. FEINGOLD. Mr. President, the Feingold-Webb-Tester amendment lets the Government get the information it needs about terrorists and about purely foreign communications, while providing additional checks and balances for communications between people in the United States and their overseas family members, friends, and business colleagues. It has the support of nine cosponsors. All this amendment does is require the Government to take extra steps to protect the privacy of Americans on U.S. soil when it knows it has collected their communications. This amendment in no way hampers our fight against al-Qaida and its affiliates. This is not about whether we will be effective in combatting terrorism. This is about whether Americans at home deserve more privacy protections than foreigners overseas. This is about separation of power, whether anyone outside the executive branch will oversee what the Government is doing with all the communications of Americans it collects inside the United States. I urge my colleagues to support the amendment.

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

Mr. FEINGOLD. Mr. President, this amendment was approved by the Senate Judiciary Committee. It ensures that in implementing the new authorities provided in the bill, the Government is acquiring the communications of targets from whom it seeks to obtain foreign intelligence information and that it is not indiscriminately collecting all communications between the United States and overseas. This amendment is necessary because of the vast and overbroad authorities provided by the PAA in this bill. In public testimony, the DNI stated that the PAA could authorize this type of bulk collection and could cover every communication between Americans inside the United States, in Europe, in South America, or the entire world. He also said that the Government is not actually engaging in this type of broad bulk collection but that it would be ``desirable.'' This amendment would not impede in any way collection in support of military operations, as the opponents continue to falsely assert. This extremely modest amendment would, however, oppose a massive bulk collection dragnet, which Chairman Rockefeller has even acknowledged would violate the Constitution. I urge support for the amendment.

Mr. FEINGOLD. Mr. President, I must oppose Bond amendment No. 3938. I do not object to expanding FISA to cover dangerous individuals involved in the international proliferation of weapons of mass destruction, which is the primary goal of this amendment. But this amendment is drafted in such a way that its effect would be much broader and could result in wiretaps issued by the secret FISA Court being directed at U.S. companies and U.S. universities that are engaged in perfectly legal research efforts or that are legally and legitimately working with materials that have multiple purposes and that aren't intended to be used for weaponry at all. In fact, the American Library Association and the Association of Research Libraries have expressed serious concern about this amendment. Here is what they said: ``While we can appreciate the concerns for those wanting FISA to address the issues of international proliferation of WMDs, the language appears to also expose to secret wiretaps those U.S. academic researchers, universities and companies doing legal research into conventional and chemical/biological weapons.'' Mr. President, that is simply not acceptable. Let me be clear: This amendment expands the core provisions of FISA that authorize wiretaps and secret searches of the homes and offices of people inside the United States. This is not about extending the new authorities provided in the Protect America Act and reauthorized by the Intelligence Committee bill. It is one thing to permit secret court-ordered foreign intelligence wiretaps of people in this country who are intentionally engaged in the international proliferation of WMD. But because of the way this amendment is drafted, it would go far beyond just authorizing wiretaps for these types of dangerous criminals. The biggest problem with the amendment is that it does not require that the people being wiretapped be involved in any criminal activity. This means that companies and individuals engaged in perfectly legal and legitimate biological, chemical, nuclear or other research could be wiretapped under this provision. I don't understand this. Under FISA today, while foreign government officials can be surveilled to gain foreign intelligence even if they are not breaking the law, foreign terrorist suspects not associated with a government who are in the United States can only be wiretapped if they are involved in criminal activities. That requirement helps ensure that innocent people engaged in, say, legal protest activities aren't subject to FISA. And I know of no complaints about that requirement. This amendment, on the other hand, doesn't require any suspicion of criminal wrongdoing. It does not even require that the target know that they might be contributing to proliferation. Worse yet, it does not even define international proliferation. So how can we know what activity might trigger the use of this most intrusive of investigation techniques against an individual in the United States? What does international proliferation mean for purposes of this authority? I certainly don't know the answer to that, and there is nothing in this amendment to answer it. And without a requirement that the proliferation must be illegal under U.S. law, I am seriously concerned that this could cover entities doing perfectly legal, academic, chemical, biological or nuclear research, or even research on conventional weapons like grenades and bombs. It could also cover legitimate companies manufacturing dual-purpose goods, component parts or precursors that could be used for weapons if they fell into the wrong hands. We can easily fix this problem with the amendment. It would be quite simple to add language virtually identical to that already included in FISA with respect to international terrorism, simply stating that international proliferation of WMD only covers activities that violate U.S. criminal laws or would be criminal if committed within U.S. jurisdiction. I even proposed language to this effect to the Senator from Missouri, hoping that we could work out our differences on this amendment and not require the full Senate to vote on it. But my modest proposal was rejected, for reasons I fail to understand. What I do understand is that if the proponents of this amendment refuse to include language limiting it to people committing crimes, that makes me even more concerned about what is intended and how this is going to be used. There are other changes, as well, that could bring the scope of the amendment into line with the justification for it, but none of my suggestions were accepted. Some may argue that we should not worry about this expansion of FISA because it only applies to foreigners visiting the United States, sometimes referred to as ``non-U.S. persons.'' But on the face of the amendment, that is not at all clear. This is because the amendment expands the definition of ``foreign power'' under FISA to cover any entity involved in international proliferation of WMD, regardless of whether it is incorporated in the United States or how many Americans work there. And any foreign power can be wiretapped or searched under the plain provisions of FISA, regardless of whether it is breaking the law. Even if the amendment were limited to non-U.S. persons, U.S. companies, and universities hire any number of people who are here on work or study visas and who are not considered ``U.S. persons.'' When those people are here in the United States, they are fully protected by the fourth amendment. So why should those individuals be subject to secret court-ordered wiretaps and searches of their offices when they have done nothing illegal? And won't this affect the ability of U.S. companies and universities to recruit the best foreign talent to come and work for them? I realize this all may seem very technical, but let me repeat the upshot: What all of this means is that, under this amendment, U.S. companies and U.S. universities conducting perfectly legal and legitimate activities--meaning they are doing nothing wrong--could be considered ``foreign powers'' under FISA and subject to court-ordered secret wiretaps in this country without any suspicion of wrongdoing. This has left organizations like the American Library Association and the Association of Research Libraries with very serious concerns about the amendment. Mr. President, I would have been willing to adopt this amendment if it could have been modified to address some of these concerns. But it would be my preference not to address this complex issue in this legislation. The responsible thing to do would be to engage in further study so we know we have the right solution to this problem. But if we are going to take on this issue here, today, let's at least do it in a responsible, targeted way. We have heard a lot about unintended consequences throughout the debate on this bill. I believe this amendment will have serious unintended consequences, and I think it would benefit all of us to study the issue further. But if that is not possible, we should at a minimum try to limit the effect of the amendment to the dangerous criminals who are the reason for this expansion of FISA. The Bond amendment does not do that.

Mr. FEINGOLD. Mr. President, as I have said repeatedly on the Senate floor, I strongly oppose granting unjustified retroactive immunity to companies that allegedly participated in the President's illegal wiretapping program, which went on for more than 5 years. It is unnecessary because under current law, companies already have immunity from civil liability if they comply with a court order or with a certification from the Attorney General that a court order is not required and all statutory requirements have been met. Congress should leave it to the courts to evaluate whether the companies alleged to have cooperated with the program would deserve immunity under this existing law rather than changing the rules of the game after the fact. That is why I have been a staunch supporter of the Dodd amendment to strike the immunity provision from this bill entirely. Given my strong opposition to any retroactive immunity for telecommunications companies, I want to explain why I voted in favor of two amendments that proposed alternatives to but did not entirely eliminate retroactive immunity. Amendment No. 3927, offered by Senators Specter and Whitehouse, would have substituted the Government for the companies in the pending litigation, and amendment No. 3919, proposed by Senator Feinstein, would have directed the FISA Court to evaluate whether companies complied with the existing immunity provision or otherwise acted in good faith. I do not believe that either of these proposals is necessary. In fact, when Senator Specter offered his substitution proposal as a stand-alone bill in the Senate Judiciary Committee, I opposed it. I firmly believe that Congress should allow the courts to evaluate whether the companies deserve immunity under the law that applied to them at the time, and we should not be meddling in this area at all. However, unlike the Specter bill, these two amendments were offered to replace the broad grant of retroactive immunity in the FISA bill, and they were offered after the Senate had voted not to adopt the Dodd-Feingold amendment. Each of them was an improvement, however slight, to the underlying immunity provision, in that they would have left open the possibility that the lawsuits could continue, thus permitting the courts to rule on the legality of the warrantless wiretapping program. Therefore, I voted in favor of both of these amendments, even though I would have much preferred to see retroactive immunity stricken entirely.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I strongly oppose S. 2248. This bill is deeply flawed in ways that will have a direct impact on the privacy of Americans. Along with several other Members of this body, I have offered modest amendments that would have permitted the government to obtain the intelligence it needs, while providing the checks and balances required to safeguard our constitutional rights. Unfortunately, under intense administration pressure marked by inaccurate and misleading scare tactics, the Senate has buckled. And we are left with a very dangerous piece of legislation. The railroading of Congress began last summer, when the administration rammed through the so-called Protect America Act, vastly expanding the government's ability to eavesdrop without a court- approved warrant. That legislation was rushed through this Chamber in a climate of fear--fear of terrorist attacks, and fear of not appearing sufficiently strong on national security. There was very little understanding of what the legislation actually did. But there was one silver lining: The bill had a 6-month sunset to force Congress to do its homework and reconsider the approach it took. Unfortunately, with far too few exceptions, the damage has not been undone. This new bill was intended to ensure that the government can collect communications between persons overseas without a warrant, and to ensure that the government can collect the communications of terrorists, including their communications with people in the United States. No one disagrees that the government should have this authority. But this bill goes much further, authorizing widespread surveillance involving innocent Americans--at home and abroad. Proponents of the bill and the administration don't want to talk about what this bill actually authorizes. Instead, they repeatedly and inaccurately assert that efforts to provide checks and balances will impede the government's surveillance of terrorists. They launched these attacks against the more balanced bill that came out of the Judiciary Committee. And they have attacked and mischaracterized amendments offered on the floor of this body. This is fear-mongering, it is wrong, and it has obscured what is really going on. What does this bill actually authorize? First, it permits the government to come up with its own procedures for determining who is a target of surveillance. It doesn't need advance approval from the FISA Court to ensure that the government's targets are actually foreigners, and not Americans here in the United States. And, if the Court subsequently determines that the government's procedures are not even reasonably designed to wiretap foreigners, rather than Americans, there are no meaningful consequences. All that illegally obtained information on Americans can be retained and used. Second, even if the government is targeting foreigners outside the U.S., those foreigners need not be terrorists. They need not be suspected of any wrongdoing. They need not even be a member or agent of some foreign power. In fact, the government can just collect international communications indiscriminately, so long as there is a general foreign intelligence purpose, a meaningless qualification that the DNI has testified permits the collection of all communications between the United States and overseas. Under this bill, the government can legally collect all communications--every last one--between Americans here at home and the rest of the world. Even the sponsor of this bill, the chairman of the Intelligence Committee, acknowledges that this kind of bulk collection is probably unconstitutional, but the DNI has said it would be not only authorized but ``desirable'' if technically possible. Technology changes fast in this area. We have been forewarned, yet the Senate failed to act. One of the few bright spots in this bill is the inclusion of an amendment, offered by Senators Wyden, Whitehouse and myself in the Intelligence Committee, to prohibit the intentional targeting of an American overseas without a warrant. That is an important new protection. But that amendment does not rule out the indiscriminate vacuuming up of all international communications, which would allow the government to collect the communications of Americans overseas, including with friends and family back home, without a warrant. And those communications can be retained and used. Even the administration's illegal warrantless wiretapping program, as described when it was publicly confirmed in 2005, at least focused on the communications of particular terrorists. What we are talking about now is potentially a huge dragnet that could sweep up the communications of countless innocent Americans. Third, the Senate failed to prohibit the practice of reverse targeting; namely, wiretapping a person overseas when what the government is really interested in is an American here at home with whom the foreigner is communicating. The underlying bill simply does not stop this practice and, if there was any doubt, the DNI has publicly said that the bill merely ``codifies'' the administration's view that surveillance of an American is fine, so long as the government is technically wiretapping the foreigner. Even the DNI has said this is unconstitutional, but there is nothing in this bill to stop it. Fourth, the Senate has failed to protect the privacy of Americans whose communications will be collected in vast new quantities. The administration's mantra has been: ``don't worry, we have minimization procedures.'' Minimization procedures are nothing more than unchecked executive branch decisions about what information on Americans constitutes ``foreign intelligence.'' As recently declassified documents have again confirmed, the ability of government officials to find out the identity of Americans and use that information is extremely broad. Moreover, even if the administration were correct that minimization procedures have worked in the past, they are certainly inadequate as a check against the vast amounts of Americans' private information that could be collected under these new authorities. This legislation is particularly troubling because we live in a world in which international communications are increasingly commonplace. Thirty years ago it was very expensive, and not very common, for most Americans to make an overseas call. Now, particularly with email, such communications are commonplace. Millions of ordinary, and innocent, Americans communicate with people overseas for entirely legitimate personal and business reasons. Parents or children call family members overseas. Students email friends they have met while studying abroad. Business people communicate with colleagues or clients overseas. Technological advancements combined with the ever more interconnected world economy have led to an explosion of international contacts. We often hear from those who want to give the government new powers that we just have to bring FISA up to date with new technology. But changes in technology should also cause us to take a close look at the need for greater protections of the privacy of our citizens. If we are going to give the government broad new powers that will lead to the collection of much more information on innocent Americans, we have a duty to protect their privacy as much as we possibly can. And we can do that without sacrificing our ability to collect information that will help protect our national security. But, the Senate has once again fallen for administration tactics that have become so depressingly familiar. ``Trust us,'' they say. ``We don't need judicial oversight. The courts will just get in our way. You never know when they might tell us that what we're doing is unconstitutional, and we would prefer to make that decision on our own. Checks and balances, judicial and congressional oversight, will impede our ability to fight terrorism.'' And, sadly, these grossly misleading efforts at intimidation have apparently worked. I have been speaking for some time now about my strong opposition to this bill, and I haven't even addressed one of the most outrageous elements of that bill: the granting of retroactive immunity to companies that allegedly participated in an illegal wiretapping program that lasted for more than 5 years. This grant of automatic immunity is simply unjustified. There is already an immunity provision in current law that has been there since FISA was negotiated--with the participation of the telecommunications industry--in the late 1970s. The law is clear. Companies have immunity from civil liability when they cooperate with a Government request for assistance--as long as they receive a court order, or the Attorney General certifies that a court order is not required and all statutory requirements have been met. This is not about whether companies had good intentions. It is about whether they complied with this statutory immunity provision, which has applied to them for 30 years. If the companies followed that law, they should get immunity. If they did not follow that law, they should not get immunity. And a court should make that decision, not Congress. It is that simple. Congress passed a law laying out when telecom companies get immunity and when they don't for a reason. These companies have access to our most private communications, so Congress has subjected them to very precise rules about when they can provide that information to the government. If the companies did not follow the law Congress passed, they should not be granted a ``get out of jail free'' card after the fact. Proponents of retroactive immunity have said repeatedly that immunity is necessary if the government is going to have the cooperation of carriers in the future. We do need that cooperation. But we also need to make sure that carriers don't cooperate with illegitimate requests. We already have a law that tells companies when they should and when they shouldn't cooperate, so they are not placed in the position of having to evaluate independently whether the government's request for help is legitimate. Instead of allowing the courts to apply that law to the facts-- instead of allowing judges to decide whether the companies deserve immunity for acting appropriately--this bill sends the message that companies need not worry about complying with questionable government requests in the future because they will be bailed out after the fact. This is outrageous. Even more outrageous is that fact that if these lawsuits are dismissed, the courts may never rule on the NSA wiretapping program. This is an ideal outcome for an administration that believes it should be able to interpret laws alone, without worrying about how Congress wrote them or what a judge thinks. For those of us who believe in three independent and co-equal branches of government, it is a disaster. In the 1970s, Congress learned that the executive branch had been using its immense powers and the advance of technology to spy on its citizens. By passing FISA, Congress faced up to the fact that we can't just trust the executive branch, including the President of the United States, to do the right thing, that judicial oversight of the power to spy was needed, that checks and balances are the best way to ensure liberty, and security. I have spent a great deal of time on the floor over the past several weeks discussing the details of the bill, offering amendments, and debating the possible effects of the fine print of the statute. But this isn't simply about fine print. In the end, my opposition to this bill comes down to this: This bill is a tragic retreat from the principles that have governed government conduct in this sensitive area for 30 years. It needlessly sacrifices court oversight and protection of the privacy of innocent Americans. It is an abdication of this body's duty to stand up for the rule of law. We know what is wrong with this legislation. We know that it authorizes unconstitutional surveillance of Americans. We have been forewarned. I urge my colleagues to vote ``no'' on final passage.

Mr. FEINGOLD

Mr. FEINGOLD. Madam President, last week the Senate adopted, by voice vote, amendment No. 3941 offered by the vice chairman of the Intelligence Committee, which would require the FISA Court to rule on challenges to the Government's directives within a specified timeframe. I opposed the amendment because it unnecessarily restricts the court's ability to consider important constitutional and statutory issues related to this legislation. The amendment limits the time for the court's consideration of challenges to directives issued under this law to a mere 30 days, unless ``necessary to comport with the due process clause of the Fifth Amendment.'' There would be no other basis for the court to extend its deliberations to a 31st day. This amendment could have serious unintended consequences. There may be many decisions that the court can, in fact, make in a relatively short period of time. But there may also be issues that the court will have to consider that could take longer. There have been many questions raised about the meaning of many of the provisions of this bill. The court will certainly be required to address some of these complex statutory interpretation issues. There have also been serious constitutional concerns raised about this bill that the court will need to consider. This is new legislation that radically changes how surveillance is conducted, and there are numerous complex issues that the court will be called on to resolve. And, unlike this body, the court will have to consider in detail the legality and constitutionality of the law as it is implemented, which could involve extensive factual development, as well as review of relevant precedent. There are many other reasons why the court would want to extend its deliberations that would not implicate fifth amendment due process rights. A party may seek more time to prepare its pleadings. The court may request more information. The Government may wish to prioritize other more pressing issues or may have a host of strategic reasons for seeking delay; or a crisis or national emergency could require the immediate attention of the intelligence personnel and lawyers assigned to present the Government's case to the court and could occupy the court's time and attention. Under those circumstances, we would surely want the court to focus its attention on the emergency at hand. But if there were also a pending challenge to a directive that the court must decide in just 30 days, it could be faced in a terrible dilemma. And only permitting the court to extend its consideration of a challenge if a refusal to do so rises to the level of a violation of the fifth amendment is far too restrictive. I would also think there might be some concern that if the court does not have enough time to decide whether to enforce a directive issued by the Government, it could very well simply decide not to. The Judicial Conference of the United States has made many of these same arguments in a letter sent today to Senators Reid and McConnell. The conference warns that the amendment could limit the court's ability to consider complex issues or could force the court to divert its attention from other pressing matters. Indeed, the letter warns that ``the national security significance of the cases before the FISC means there is a chance this provision could force the FISC by statute to forego consideration of another matter of paramount importance.'' This amendment could seriously shortchange the court's ability to determine whether the Government is acting legally or whether the bill is constitutional, on its face or as implemented in a particular situation. For that reason, I opposed this amendment. amendment no. 3913

Mr. FEINGOLD. I ask unanimous consent that the order for the quorum call be rescinded.

Mr. FEINGOLD. Madam President, today I want to address several of the pending amendments to the FISA legislation, and I will indicate the amendment number of each one as I discuss it. First is what we call the Feingold-Webb-Tester amendment No. 3979. I wish to address some of the arguments that have been made in opposition to Feingold-Webb-Tester and to set the record straight about what the amendment does. The Senator from Missouri has suggested it would cut off all foreign intelligence collection because the Government would not be able to determine in advance whether communications are foreign to foreign. This is preposterous. The whole point of the amendment is to allow the Government to acquire all communications of foreign targets when it does not know in advance whether they are purely foreign or have one end in the United States. The administration also argues we should not pass the Feingold-Webb- Tester amendment because it would be difficult and time consuming to implement. That is no reason to oppose the amendment. I understand the amendment imposes a new framework, and that is precisely why the amendment grants the Government up to a year before it goes into effect. I also wish to make clear that the amendment does not force the Government to determine the location of every person and every e-mail the Government acquires, contrary to what has been suggested. The amendment only requires that the Government determine whether one end of a communication is in the United States where reasonably practicable, based on procedures approved by the FISA Court. In some instances, that would be easy to do, while in others it would not be feasible at all. The court-approved procedures will take those differences into account. It is also not true that the amendment would harm our nonterrorism foreign intelligence operations. This amendment leaves intact the warrantless acquisition of any foreign-to-foreign communications and any communications where the Government doesn't know in advance whether they are to or from people in the United States. Even for communications where the Government knows they involve Americans in the United States, no court order is actually required for communications relating to terrorism or anyone's safety. This is much broader than the pre-Protect America Act law. None of this would have been possible 7 months ago. Let's not forget the justification for this legislation has always been about terrorism and foreign-to-foreign communications. Last month, the Vice President defended the Protect America Act by talking about ``one foreign citizen abroad making a telephone call to another foreign citizen abroad about terrorism.'' The Feingold-Webb-Tester amendment allows those calls to be monitored without a warrant. The Feingold-Webb-Tester amendment allows the Government to get the information it needs about terrorists and about purely foreign communications, while providing additional checks and balances for communications between people in the United States and their overseas family members, friends, and business colleagues. I urge my colleagues to support the Feingold-Webb-Tester amendment. Let me next turn to Amendment No. 3912, which has been referred to as the bulk collection amendment. I wish to again stress the importance of my amendment prohibiting the bulk collection of Americans' international communications. The bill we are debating is supposedly intended to permit monitoring of foreign-to-foreign communications and the tracking of terrorists overseas without a warrant. It is not supposed to allow the Government to collect all communications into or out of the United States, but that is exactly what the Government could seek to do with these authorities, which is why this amendment is critical. I have yet to hear any real arguments against it. The DNI's recent letter opposing the amendment fails to come up with any substantive arguments. Instead, it describes hypothetical situations that clearly wouldn't be affected by the amendment. In order to protect the international communications of innocent Americans at home, the amendment simply requires that the Government is seeking foreign intelligence information from its targets. In the only examples cited in the letter--a neighborhood or group of buildings or geographic area that the U.S. military is about to invade--clearly, the Government has that purpose. The notion that the Government could not make a good- faith certification to the court that it is seeking foreign intelligence, which is all this amendment requires, is simply ludicrous. What is telling about the DNI's letter, besides that it includes no real arguments against the amendment, is what it does not say. It does not refute the danger this amendment is intended to address: the bulk collection of all communications between the United States and Europe or Canada or South America or, indeed, the world. The DNI has testified that the PAA would authorize that kind of massive, indiscriminate collection of Americans' communications, and the administration has never denied that this bill could, too, unless we pass this amendment. In fact, this letter does nothing to reassure the American people the Government could not and would not collect all their international communications. Worse, the letter argues that a prohibition on that kind of massive collection would not ``appreciably enhanc[e] the privacy interests of Americans.'' If the DNI does not think the privacy interests of Americans would be affected by the collection of all their international communications, potentially vacuuming up their communications not just with foreigners overseas but with Americans overseas as well, then that is all the more reason to be concerned. Serious constitutional issues are at stake. The administration is effectively telling us it intends to ignore them. Let me also respond to a statement by the chairman of the Intelligence Committee last week that a dragnet of all international communications of Americans would probably violate the fourth amendment. I am pleased to hear the chairman acknowledge that the surveillance the administration would like to conduct would violate the constitutional rights of Americans, but how could we possibly expect this administration--an administration that has already demonstrated indifference to Americans' privacy and has already said that bulk collection would be ``desirable''--to hold back. Nor should we rely on the FISA Court to stop this, as the chairman has suggested. If Congress believes something is unconstitutional, we have absolutely no business authorizing it. We have been warned, and now we need to act by passing my modest bulk collection amendment. I reserve the remainder of my time on amendment No. 3902. As to the Dodd-Feingold immunity amendment No. 3907, I am pleased to join my colleague in offering this amendment to strike the immunity provision. I ask unanimous consent that I be yielded 15 minutes to speak on the Dodd amendment and that the time be charged to the proponents of the amendment.

Mr. FEINGOLD. I thank the Senator from Connecticut. Amendment No. 3907 I strongly support Senator Dodd's amendment to strike the immunity provision from this bill. I thank him for his leadership on the issue. I offered a similar amendment in the Judiciary Committee, and I supported a similar amendment in the Intelligence Committee when it was offered by the Senator from Florida, Mr. Nelson. Congress should not be giving automatic retroactive immunity to companies that allegedly cooperated with the President's illegal NSA wiretapping program. This provision of the bill is both unnecessary and unjustified, and it will undermine the rule of law. Retroactive immunity is unnecessary because current law already provides immunity from lawsuits for companies that cooperate with the Government's request for assistance, as long as they receive either a court order or a certification from the Attorney General that no court order is needed and the request meets all statutory requirements. Companies do not need to do their own analysis of the court order or the certification to determine whether the Government is, in fact, acting lawfully. But if requests are not properly documented, FISA instructs the telephone companies to refuse the Government's request and subjects them to liability if they instead decide to cooperate. This framework, which has been in place for 30 years, protects companies that act at the request of the Government, while also protecting the privacy of Americans' communications. Some supporters of retroactively expanding this provision argue that the telephone companies should not be penalized if they relied on high-level Government assurance that the requested assistance was lawful. As superficially appealing as that argument may sound, it utterly ignores the history of the FISA statute. Telephone companies have a long history of receiving requests for assistance from the Government. That is because telephone companies have access to a wealth of private information about Americans, information that can be a very useful tool for law enforcement. But that very same access to private communications means telephone companies are in a unique position of responsibility and public trust. Yet before FISA, there were basically no rules to help the phone companies resolve this tension, between the Government's request for assistance in foreign intelligence investigations and the companies' responsibilities to their customers. This legal vacuum resulted in serious Government abuse and overreaching. The Judiciary Committee has heard testimony about this system from Mort Halperin, a former Nixon administration official who was himself the subject of a warrantless wiretap and was involved in the drafting of the FISA law in the 1970s. He testified that before FISA: Government communication with the telephone company . . . could not have been more casual. A designated official of the FBI called a designated official of [the company] and passed on the phone number. Within minutes all of the calls from that number were being routed to the local FBI field office and monitored. Not surprisingly, this casual ad hoc system failed to protect Americans' privacy. The abuses that took place are well documented and quite shocking. With the willing cooperation of the telephone companies, the FBI conducted surveillance of peaceful antiwar protesters, journalists, steel company executives, and even Martin Luther King, Jr., an American hero whose life we recently celebrated. So Congress decided to take action. Based on the history of and potential for Government abuses, Congress decided it was not appropriate for telephone companies to simply assume that any Government request for assistance to conduct electronic surveillance was legal. Let me repeat that. A primary purpose of FISA was to make clear once and for all that the telephone companies should not blindly cooperate with Government requests for assistance. At the same time, however, Congress did not want to saddle telephone companies with the responsibility of determining whether the Government's request for assistance was a lawful one. That approach would leave the companies in a permanent state of legal uncertainty about their obligations. So Congress devised a system that would take the guesswork out of it completely. Under that system, which is still in place today, the companies' legal obligations and liability depends entirely on whether the Government has presented the company with a court order or a certification stating that certain basic requirements have been met. If the proper documentation is submitted, the company must cooperate with the request and will be immune from liability. If the proper documentation has not been submitted, the company must refuse the Government's request or be subject to possible liability in the courts. AT&T, which was the only telephone company in existence at the time in the 1970s, was at the table when FISA was drafted. As Mr. Halperin described in his testimony, the company: received the clarity that it sought and deserved. The rule, spelled out clearly in several places in the legislation and well understood by all, was this: If [the phone company] received a copy of a warrant or certification under the statute, it was required to cooperate. If it did not receive authorization by means outlined in the statute, it was to refuse to cooperate and was to be subjected to state and federal civil and criminal penalties for unlawful acquisition of electronic communications. The telephone companies and the Government have been operating under this simple framework for 30 years. Companies have experienced, highly trained and highly compensated lawyers who know this law inside and out. In view of this history, it is inconceivable that any telephone companies that allegedly cooperated with the administration's warrantless wiretapping program did not know what their obligations were. It is just as implausible that those companies believed they were entitled to simply assume the lawfulness of a Government request for assistance. This whole effort to obtain retroactive immunity is based on an assumption that does not hold water. Quite frankly, the claim that any telephone company that cooperates with a Government request for assistance is simply acting out of the sense of patriotic duty doesn't fare much better. Recently, we learned that telecommunications companies actually have cut off wiretaps when the Government failed to promptly pay its bills. The Department of Justice Office of Inspector General released a report last month finding that ``late payments have resulted in telecommunications carriers actually disconnecting phone lines established to deliver surveillance to the FBI, resulting in lost evidence.'' Since when does patriotic duty come with a price tag? Evidently, assisting the Government's criminal intelligence investigation efforts fell somewhere below collecting a paycheck on the companies' lines of priorities. Some of my colleagues have argued the telephone companies alleged to have cooperated with the program had a good-faith belief their actions were in accordance with the law. But there is an entire statute in addition to the certification provision that already provides telephone companies with a precisely defined good-faith defense. Under this provision, which is found in section 2520 of title 18, if the company is relying in good faith on a court order or other statutory legislative authorization, they have a complete defense to liability. This is a generous defense, but as generous as it is, it is not unlimited. The court must find that the telephone company determined in good faith that there was a judicial, legislative, or statutory authorization for the requested assistance. I also wish to address the argument that retroactive immunity is necessary because the telephone companies can't defend themselves in court. When I hear this argument, I can't help but think that this administration has staged the perfect crime: enlist private companies to allegedly provide assistance in an illegal Government program, then prevent any judicial inquiry into the program by claiming a privilege-- the so-called state secrets privilege--that not only shields your own actions from scrutiny but enables the companies to evade judicial scrutiny as well by claiming that they are defenseless. All the administration needs to get away with this is Congress's blessing. That is exactly why immunity is the wrong solution. Think about what we would be doing. We would be saying that in matters of national security, you can break the law with impunity because the courts can't handle national security materials. This is outrageous. Do we really want to create a law-free zone for crimes that involve national security matters? If the Government's use of the state secrets privilege is interfering with holding companies accountable for alleged violations of the law, the solution isn't to shrug and just give up on accountability; the solution is to address the privilege head-on and make sure it doesn't become a license to evade the laws we have passed. In any event, the notion that the Federal courts can't handle national security matters is insulting to the judges this body has seen fit to confirm, and it is contrary to the facts. Cases involving classified information are decided routinely by the Federal courts. That is why we have a statute--the Classified Information Procedures Act--to govern how courts handle classified materials. Pursuant to that statute, courts have in place procedures that have successfully protected classified information for many years. There is no need to create a ``classified materials'' exception to our justice system. That brings me to another issue. I have been discussing why retroactive immunity is unnecessary and unjustified, but it goes beyond that. Granting companies that allegedly cooperated with an illegal program this new form of automatic retroactive immunity undermines the law that has been on the books for decades, a law that was designed to prevent exactly the type of actions that allegedly occurred here. Remember, telephone companies already have absolute immunity if they complied with the applicable law, and they have an affirmative defense if they believed in good faith that they were complying with that law. So the retroactive immunity provision we are debating here is necessary only if we want to extend immunity to companies that did not comply with the applicable law and did not even have a good-faith belief that they were complying with it. So much for the rule of law. Even worse, granting retroactive immunity under these circumstances will undermine any new laws we pass regarding Government surveillance. If we want companies to follow the law in the future, it certainly sends a terrible message, and sets a terrible precedent, to give them a ``get out of jail free'' card for allegedly ignoring the law in the past. I find it particularly troubling when some of my colleagues argue that we should grant immunity in order to encourage the telephone companies to cooperate with the Government in the future. Let's take a close look at that argument. Telephone companies are already legally obligated to cooperate with a court order, and as I have mentioned, they already have absolute immunity for cooperating with requests that are properly certified. So the only thing we would be encouraging by granting immunity here is cooperation with requests that violate the law. That is exactly the kind of cooperation FISA was supposed to prevent. Let's remember why: These companies have access to our most private conversations, and Americans depend on them to respect and defend the privacy of these communications unless there is clear legal authority for sharing them. They depend on us to make sure the companies are held accountable for betrayals of that public trust. Instead, this immunity provision would invite the telephone companies to betray that trust by encouraging cooperation with a legal Government program. Since 9/11, I have heard it said many times that what separates us from our enemies is respect for the rule of law. Unfortunately, the rule of law has taken it on the chin from this administration. Over and over, the President and his advisers have claimed the right to ignore the will of Congress if and when they see fit. Now they are claiming the same right for any entity that assists them in that effort. It is time for Congress to state clearly and unequivocally: When we pass a law, we mean what we say, and we except the law to be followed. That goes for the President, it goes for the Attorney General, and it goes for the telephone companies. The rule of law is not less important after 9/11. We can and we must defeat al-Qaida without breaking the law or sacrificing Americans' basic rights. We have a choice. The Senate can stand up for the rule of law and let these cases go forward in the courts or we can decide to give our blessing to an administration that broke the law and the companies that allegedly helped it, and we can signal that we stand ready to bail them out the next time they decide to ignore the law. I urge my colleagues not to take that step. Support the rule of law by voting in favor of the Dodd-Feingold amendment No. 3907. I again thank my colleague from Connecticut for his tremendous leadership on this issue. It has been extremely helpful in this effort. I sincerely thank him. I ask unanimous consent that my remaining time be reserved. Madam President, I yield the floor.