Russell Feingold

Mr. FEINGOLD

Mr. FEINGOLD. How much time do I have?

Mr. FEINGOLD. Mr. President, I wish to respond to the argument of the Senator from West Virginia that this amendment would somehow impose a burden because it would require the Government to identify information about U.S. persons. I wish to be clear, these use limits kick in only if the Government proposes to disseminate and use the information, in which case the bill's minimization procedures already require the Government to identify information about U.S. persons. So I can't for the life of me figure out what the Senator is referring to when he refers to new burdens. My amendment imposes no additional burden at all. I yield back the remainder of my time.

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

Mr. FEINGOLD. Mr. President, this is the amendment we call Use Limits Amendment, amendment No. 3915. This amendment gives the FISA Court the option of preventing the Government from using information on U.S. persons that it has collected using targeting or minimization procedures that are later found to be illegal. As the legislation now stands, if the Government uses procedures that are later declared unlawful, there is nothing to stop it from using the information it collected illegally. This does not make any sense, and it takes away any incentive for the Government to develop lawful procedures the first time around. It is also not consistent with the approach FISA takes with other illegally collected information. If the Government conducts emergency surveillance that is later found to be improper, FISA already prohibits the Government from using that information. Importantly, under my amendment, information about foreigners or information that indicates a threat of death or bodily harm could always be used by the Government, even if it were collected under illegal procedures. The FISA Court also has the discretion to allow the Government to use illegally collected information about U.S. persons. So it is an extremely modest safeguard, a very reasonable amendment. I urge my colleagues to support it. I yield the floor.

Mr. FEINGOLD. Mr. President, the reverse targeting amendment No. 3913 was approved by the Senate Judiciary Committee and is cosponsored by several of my colleagues. It simply ensures that the new authorities contained in this bill are not used to engage in what is known as reverse targeting of Americans here at home. FISA requires the Government to get a court order when it is wiretapping Americans on American soil. Reverse targeting refers to the possibility that the Government will try to get around this requirement by using these new authorities to wiretap someone overseas, when what the Government is trying to do and is interested in is the American with whom that foreign person is communicating. The bill pretends to ban reverse targeting, but this ban is so weak as to be meaningless. It would allow reverse targeting as long as the Government can claim it has some interest, however minor, in the foreigner it is wiretapping. The amendment says the Government needs an individualized court order when a significant purpose of the surveillance is to acquire communications of a person inside the United States. The Director of National Intelligence has testified that this practice, reverse targeting, is a violation of the fourth amendment. That is what the DNI says. This amendment merely codifies that constitutional principle. I strongly urge my colleagues to support this important amendment.

Mr. FEINGOLD

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

Mr. FEINGOLD

Mr. FEINGOLD. Madam President, I will support the bipartisan stimulus package today. It is better than doing nothing at all but not as good as we might have made it. I commend the Finance Committee chair and ranking member, as well as our majority leader, Senator Reid, for their untiring efforts to make improvements to the House-passed stimulus package. In the last few weeks, there has been a broad consensus that a properly crafted fiscal stimulus package could help ease the economic downturn we are experiencing. The measure passed by the House was a step in the right direction, and the amendment we will adopt today will improve on the House bill. Notably, the bipartisan amendment will ensure that 20 million lower income seniors who rely primarily on Social Security will be included in the tax rebate program, and it will do the same for a quarter of a million wounded veterans with lower incomes. I regret that a particularly effective and desperately needed provision from the Finance Committee proposal was dropped from this agreement; namely, an extension of unemployment insurance benefits for the long-term unemployed. Not only was that provision the right thing to do to cushion the impact of this economic downturn on those who have been out of work for half a year or more, but we know from past experience that such a provision was one of the most effective ways to stimulate the economy. Another provision we should have included in this package, expansion of food stamps benefits, also shares those attributes. I very much hope that soon Congress will act on those two ideas. Finally, I was disappointed that little or no effort was made to ensure the cost of this stimulus package would not add to our already mountainous public debt that will be borne by our children and grandchildren. Make no mistake; there is no free lunch here. Even though no offsetting savings were included in this package to defray its cost, the bill will be paid--if not by this generation, then certainly by coming generations. Our children and grandchildren will pay for our stimulus package. Congress owes those future generations some consideration. We should return to the fiscally responsible budgeting of the 1990s, when we actually balanced the Federal books and began to pay down the Federal debt. We need not do so in a way that hurts the present economy, but paying for this stimulus package over the next 5 years or so would not undermine current economic growth, and Congress should consider such an approach.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, today I am pleased to reintroduce the Global Service Fellowship Program Act. This important bipartisan bill would provide more Americans the opportunity to volunteer overseas and strengthen our existing Federal international education and exchange system. The U.S. Government needs to be taking a greater role in providing opportunities for U.S. citizens to volunteer overseas, and my bill will enhance U.S. efforts to be a global leader in people-to- people engagement. People-to-people engagement is one of the United States' most effective public diplomacy tools and, today more than ever, we need to be investing in every opportunity to improve the perception of the U.S. overseas. I often hear from constituents about their experiences volunteering overseas and how those experiences impacted their lives and the lives of those who they were helping. For example, I received an email from Eric Englund, from my hometown of Middleton, who wrote, ``[My wife Jane and I] have been privileged to participate in international volunteering experiences in 2006 and 2007. In 2006 we spent 4 weeks in China teaching English to Chinese primary and secondary English teachers in Xingping, China. * * * In 2007 we spent two weeks in Tanzania with Habitat for Humanity. . . . We return[ed] from both experiences humbled in the understanding of how lucky we have been and hungry to continue to share with others a cultural exchange that is hopefully symbiotic in helping us grow/learn/appreciate while at the same time sharing our knowledge, compassion and abilities with others.'' This email captures the life-changing effects that international volunteering often has on those who choose to commit their time and resources to volunteering across the globe. Unfortunately, not enough of my constituents are able to volunteer overseas because of financial or time-related barriers. In an effort to reduce these barriers, I initially introduced, along with my colleague Senator Coleman, the Global Service Fellowship bill. Today, I am reintroducing a new and improved version of the bill. This new bill builds on the original legislation but now ensures fellowships are not taxed, addresses the importance of geographical diversity in the selection process, and increases collaborative opportunities for the U.S. Agency for International Development and the Department of State in establishing and administering the program. Additionally, congressional involvement has been changed from the original bill. The new version calls on participants to engage with Members of Congress prior to their departure and again upon their return by providing Members with a brief report of their experiences and impact abroad. The changes are intended to ensure that fellows are selected based on the merits while preserving for Members of Congress the opportunity, if they so wish, to engage directly with constituents who have volunteered for significant overseas work, whether by a personal exchange, a public event or correspondence that recognizes the value of their volunteer efforts. Studies have shown that in areas where U.S. citizens have volunteered their time, money, and services, opinions of the U.S. have improved. Greater investment in volunteer opportunities has significant potential to improve the image of the U.S. overseas and while we have important programs already in place--the Peace Corps, programs administered through the Department of State's Bureau of Education and Cultural Affairs, and USAID's Volunteers for Prosperity--we can and should be doing more. My bill would cost $150 million, which is more than offset by a provision that would require the IRS to deposit all of its fee receipts in the Treasury as miscellaneous receipts. CBO has estimated that this offset will save $559 million over 5 years for net deficit reduction of just over $400 million. I am pleased that my colleagues, Senators Coleman, Casey, Cochran, Kerry, Voinovich, and Whitehouse have joined me in re-introducing this bill. This program will be a valuable addition to our public diplomacy and our private humanitarian efforts overseas and I encourage my colleagues to support the bill.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, today I am pleased to reintroduce the Global Service Fellowship Program Act. This important bipartisan bill would provide more Americans the opportunity to volunteer overseas and strengthen our existing Federal international education and exchange system. The U.S. Government needs to be taking a greater role in providing opportunities for U.S. citizens to volunteer overseas, and my bill will enhance U.S. efforts to be a global leader in people-to- people engagement. People-to-people engagement is one of the United States' most effective public diplomacy tools and, today more than ever, we need to be investing in every opportunity to improve the perception of the U.S. overseas. I often hear from constituents about their experiences volunteering overseas and how those experiences impacted their lives and the lives of those who they were helping. For example, I received an email from Eric Englund, from my hometown of Middleton, who wrote, ``[My wife Jane and I] have been privileged to participate in international volunteering experiences in 2006 and 2007. In 2006 we spent 4 weeks in China teaching English to Chinese primary and secondary English teachers in Xingping, China. * * * In 2007 we spent two weeks in Tanzania with Habitat for Humanity. . . . We return[ed] from both experiences humbled in the understanding of how lucky we have been and hungry to continue to share with others a cultural exchange that is hopefully symbiotic in helping us grow/learn/appreciate while at the same time sharing our knowledge, compassion and abilities with others.'' This email captures the life-changing effects that international volunteering often has on those who choose to commit their time and resources to volunteering across the globe. Unfortunately, not enough of my constituents are able to volunteer overseas because of financial or time-related barriers. In an effort to reduce these barriers, I initially introduced, along with my colleague Senator Coleman, the Global Service Fellowship bill. Today, I am reintroducing a new and improved version of the bill. This new bill builds on the original legislation but now ensures fellowships are not taxed, addresses the importance of geographical diversity in the selection process, and increases collaborative opportunities for the U.S. Agency for International Development and the Department of State in establishing and administering the program. Additionally, congressional involvement has been changed from the original bill. The new version calls on participants to engage with Members of Congress prior to their departure and again upon their return by providing Members with a brief report of their experiences and impact abroad. The changes are intended to ensure that fellows are selected based on the merits while preserving for Members of Congress the opportunity, if they so wish, to engage directly with constituents who have volunteered for significant overseas work, whether by a personal exchange, a public event or correspondence that recognizes the value of their volunteer efforts. Studies have shown that in areas where U.S. citizens have volunteered their time, money, and services, opinions of the U.S. have improved. Greater investment in volunteer opportunities has significant potential to improve the image of the U.S. overseas and while we have important programs already in place--the Peace Corps, programs administered through the Department of State's Bureau of Education and Cultural Affairs, and USAID's Volunteers for Prosperity--we can and should be doing more. My bill would cost $150 million, which is more than offset by a provision that would require the IRS to deposit all of its fee receipts in the Treasury as miscellaneous receipts. CBO has estimated that this offset will save $559 million over 5 years for net deficit reduction of just over $400 million. I am pleased that my colleagues, Senators Coleman, Casey, Cochran, Kerry, Voinovich, and Whitehouse have joined me in re-introducing this bill. This program will be a valuable addition to our public diplomacy and our private humanitarian efforts overseas and I encourage my colleagues to support the bill.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I will use some of my time on a couple of these amendments. I know it must be difficult for the Chair to figure out which time to apply to which amendments, but I will try to identify them. First, I will speak with regard to Feingold-Webb-Tester amendment No. 3979, which the Senator from Missouri was addressing. He referred to our concern that the rights and privacy of Americans could be affected by this bill as a ``tired accusation.'' I object to that characterization. I think this is clearly the kind of thing we should be worried about. I will tell you what is a tired accusation: the notion that somehow our amendment would affect the ability of the Government to listen in on Osama bin Laden. That is a tired and false accusation. The Senator has said that if bin Laden or his No. 3 man-- whoever that is today, because we killed the last No. 3 man--calls somebody in the United States, we cannot listen in to that communication unless we have an independent means of verifying that it had some impact on threats to our security from a terrorist threat. That is what he claims, that we would not be able to listen in on that conversation. That is false. The Feingold-Webb-Tester amendment specifically does not require a FISA Court warrant to acquire and disseminate the communications of any foreigner overseas who is suspected of terrorism. Mr. President, there is no separate threat requirement. The amendment merely requires that the Government label terrorism-related communications that have one end in the United States so they are traceable for subsequent oversight. And it simply requires that when the Government accesses and disseminates terrorist-related communications that it has already acquired that the court just be informed with the brief certification. I don't know where the Senator gets this bizarre idea that somehow you cannot listen in on a conversation of Osama bin Laden. I don't think it is credible to anybody that that would be the case. Finally, he raises the concern that somehow we are insulting the FISA Court, saying they are not doing a good job. To the contrary, we are trying to give them the power to enforce their will. We are trying to give them the ability to say: Wait a minute. You guys are not doing what you said you were going to do. That is not an insult. That is essential for the court to be able to do its job. Let's worry less about the alleged and, frankly, false notions about the feelings of a secret court and worry more about the rights and privacy of perfectly innocent Americans. Mr. President, I turn now to amendment No. 3915, another amendment I offered known as the use limits amendment. As I explained earlier this week, my amendment simply gives the FISA Court the option of limiting the Government's use of information about information about U.S. persons that is collected under procedures the FISA Court later determines to be illegal. That is about as minimal a safeguard as you can get. It is unfortunate that some of those who oppose my amendment are mischaracterizing what it does. The Attorney General and the DNI sent the majority leader a letter yesterday in which they expressed their objections to this amendment. Twice in the letter, they stated that this amendment would place limits on the use of information that doesn't concern U.S. persons. That is flat-out false, Mr. President. The use limits proposed in this amendment specifically apply to ``information concerning any United States person.'' That is what it says. Use limits in this amendment apply only under those circumstances. There is nothing ambiguous about this language. These patently false claims that the amendment applies to information about non-U.S. persons just show the lengths to which opponents of the amendment will go to generate opposition to this or any other reasonable amendment. We have also heard that the amendment would create a massive operational burden. Mr. President, that also just isn't true. The Government already does what is necessary to implement the use limits in the amendment. First, declassified Government responses to oversight questions of the Congressional Intelligence Committees reveal that the Government is already labeling communications obtained under the so-called Protect America Act. So the Government already tracks which communications are acquired under these particular authorities, which would be the first step here. Second, the Government already has to comply with minimization requirements that are supposed to protect information about U.S. persons. These requirements kick in whenever the Government wants to disseminate any acquired communications that include information about U.S. persons. That means intelligence analysts already have to determine, before any communications collected under these authorities can be used in any of the contexts we are talking about here, whether they contain any information about U.S. persons. Indeed, the administration constantly reminds us of this fact when claiming that minimization requirements do enough to protect Americans. Mr. President, given that the Government is already required and equipped to examine any communications it proposes to use in order to determine whether U.S. person information is present, the argument that the amendment somehow imposes a massive new burden is very difficult to understand. Perhaps the explanation lies in the administration's repeated statements that the amendment would put limits on the use of information about non-U.S. persons. If this were true, then it is conceivable that my amendment would create an additional operational burden. But those statements are completely and utterly false, as I have explained. The amendment explicitly states that the use limits apply to ``information concerning any United States person''--information that is already subject to minimization requirements. I want to also address the argument the chairman of the Intelligence Committee made that this amendment is somehow different than the existing use limits for emergency surveillance. The chairman argued that the amendment, unlike the emergency use limits, could affect ``thousands'' of communications. As I pointed out yesterday, the amendment addresses that concern by creating a huge exception to the use limitations, an exception that is not present in the emergency use limits provision. Under the amendment, the FISA Court can allow the Government to use even information about U.S. persons that is obtained by unlawful procedures, as long as the Government fixes the problem with the procedures. So, in fact, this amendment is far less restrictive than the use limits for emergency surveillance, despite the claim of the chairman otherwise. Even more important, we have to remember what these thousands of communications are. The only information that would be subject to use limits is information about U.S. persons collected under illegal procedures--procedures that failed to reasonably target people overseas. The underlying bill prohibits the Government from collecting this information in the first place. My amendment gives this prohibition some teeth by limiting the use of information that has been illegally collected. The opponents of this amendment may argue that the government has no intention of doing anything that would be unreasonable under the law. My response is, if it does, there ought to be some enforcement. There ought to be a way to make sure that doesn't happen, not just the assurance of the chairman and vice chairman. Moreover, if the Government has collected thousands of communications illegally, isn't that all the more reason to try to contain the damage and limit the impact on innocent Americans? That is not hamstringing the Government; it is just requiring the Government to comply with the law that we are actually passing. My amendment simply provides an incentive for the administration to follow the law as it is written. If we pass a law that has no meaningful consequence for noncompliance with the law, I think we are taking a real gamble as to whether the administration will choose to comply. I am not personally willing to accept the odds on that one. Once again, I urge my colleagues to support this amendment, and I reserve the remainder of my time and yield the floor.

Mr. FEINGOLD. Mr. President, I will speak with regard to amendment No. 3913, the one about which the chairman just spoke, the so-called reverse targeting amendment I have offered. Reverse targeting is what happens when the Government wiretaps persons overseas when what they are really interested in is the Americans with whom these foreigners are talking. I think most of my colleagues would agree that this bill should not open up a backdoor to get around the requirement in FISA for a warrant to listen in on Americans at home. The lack of any substantive arguments against my amendment is made clear by the letter the DNI sent on Tuesday. The arguments just offered by the chairman were almost identical to the arguments offered by the DNI and by the Attorney General. In fact, that letter, which severely mischaracterizes the amendment, actually underscores why the amendment is good both for civil liberties and for national security. First, the letter confirms that reverse targeting is not, in fact, prohibited by the underlying bill. We keep hearing the chairman and vice chairman say it is already prohibited. It is not. The DNI writes that the Intelligence Committee bill only prohibits warrantless collection when the American is ``the actual target.'' That cannot be read as a prohibition on reverse targeting. That is just a prohibition on direct targeting of an American at home, and it does nothing to protect Americans from what the DNI himself has said is unconstitutional. Second, the letter cites ``operational uncertainties and problems,'' but it does not bother to identify what those are. Yes, my amendment would require a new procedure, just like everything else in this bill, but the Government should already have procedures to protect the constitutional rights of Americans. If it does not, that is all the more reason to adopt the amendment. Third, the letter actually makes one of the strongest arguments in favor of my amendment when it warns of insufficient attention to the American end of an international terrorist communication. If a foreign terrorist is talking to an American inside the United States, the intelligence community should get a FISA warrant on that American so it can listen in on all his communications, and it certainly would have no problem getting that warrant. Without that warrant, the Government will never get the full picture of what that American is doing or plotting. Yet the DNI's letter seems to argue that the Government would not want to get a FISA Court warrant to listen in on all the communications, including the domestic communications, of a terrorist inside the United States. I do not believe this is a serious argument, but if it were, it would suggest that our Government is not doing everything it can do to track down terrorists. Finally, the letter seriously mischaracterizes the amendment. The amendment does not bar acquisition of communications between terrorists overseas and their associates in the United States. It does not in any way affect the Government's ability to discover and collect those communications. It does not apply to incidental collection of communications into the United States, and it does not even apply when the Government has identified a known individual with whom the foreign terrorist is communicating. Only when a significant purpose of the surveillance is to get information on a person inside the United States does the Government need to get a court warrant. That is not just required by the Constitution of the United States, it is how the Government can most efficiently and effectively protect us. I hope my colleagues will support this modest proposal to prevent these new powers from opening a huge loophole to the requirement in FISA that the Government get a court order to target Americans in the United States. Mr. President, I reserve the remainder of my time on this amendment, and I yield the floor.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I ask unanimous consent that the pending amendment be set aside so that I may call up an amendment.

Mr. FEINGOLD. Mr. President, I call up amendment No. 3913.

Mr. FEINGOLD. Mr. President, I ask unanimous consent that the reading be dispensed with.

Mr. FEINGOLD. It is sort of odd that we are debating these two amendments together. But there is one advantage. Under our system of government, the way we make sure that abuses don't occur is by passing laws to make it absolutely clear that abuses aren't occurring and can't occur. We are supposed to accept the say-so of one Senator who says we are not doing these things. We are not conducting bulk collection. We are not doing reverse targeting so don't worry. Yet he resists two amendments that simply make it clear you can't do these things. What is the objection on the merits to these two amendments? They would apply to an administration that initiated an illegal wiretapping program in disregard of the statutes. We have reason to believe that maybe they would do things we don't know about and don't like and don't think are legal, but we are supposed to simply take the word of one Senator instead of passing a law to clearly protect the American people. With regard to reverse targeting, the Senator asserts that somehow having a provision that says ``the'' purpose would have to be targeting an American before a court order is required is going to protect us. But that doesn't protect us. That language would mean that any incidental reason for targeting a foreign person when the government wants to listen to the American would be a sufficient basis for ongoing warrantless surveillance of the American. In fact, the Senator from Georgia has indicated that what this means is that the sole purpose of the collection would have to be to obtain information on the American before a court order is required. If that is true, then it would be very easy for the government to bootstrap any incidental interest in a foreign target so that they can listen in on an American. The DNI has said that reverse targeting is unconstitutional. What is the legitimate objection to making it absolutely clear that this can't be done in this statute? There is no substantive objection. The same thing goes for bulk collection. Again, one Senator assures the American people that the government is not doing bulk collection. That might be right. We may not be doing it now. But the DNI has said it would be desirable. He would love to do it. Yet the Senator will not permit a simple amendment that says that something that the DNI has also said is not actually needed but would raise serious constitutional problems, should be prohibited. This is an amazing moment. Instead of legislating, we are supposed to trust. With regard to all of our international communication, we are supposed to simply trust one Senator's assurance that there is nothing to worry about. I suggest the American people deserve better than that. To show the complete lack of content to these arguments, I addressed what the Senator, who was not out here at the time, has called the Fallujah example. He keeps saying that under this provision, you couldn't get information about what was going on in Fallujah when we were attacking al-Qaida and others there. That is absolutely false. I laid it out. As long as the Government says there is a foreign intelligence information purpose, of course they can do it. If there is a terrorist hotbed, they can do it. They just have to assert that. This argument that somehow this would interfere with that collection flies directly in the face of the bill and the amendment. There is no truth to that argument at all. The amendment is absolutely clear in cases of conflict, where the government merely needs to assert that it has a foreign intelligence purpose for conducting surveillance in that area. In that situation, the purpose is clear. Because of the floor situation, the arguments related to these two amendments have merged, but it sort of works in a way because both of them are such straightforward, simple protections that a majority of the Judiciary Committee agreed had to be included in this bill to protect the rights of the American people. I reserve the remainder of my time.

Mr. FEINGOLD. Mr. President, this amendment, approved by the Senate Judiciary Committee, assures the new authorities contained in this bill will not be used to engage in what is known as ``reverse targeting of Americans.'' FISA requires the Government to get a court order when it is listening in on Americans on American soil. Reverse targeting refers to the possibility that the Government will try to get around this requirement by using these new authorities to wiretap someone overseas when what the Government really wants to do is listen to the American with whom that foreign person is communicating. The Director of National Intelligence has testified that reverse targeting is a violation of the fourth amendment. This amendment merely codifies that constitutional principle. Specifically, the amendment says the Government needs an individualized court order when a significant purpose of the surveillance is to acquire communications of a person inside the United States. Now, this language is critical if we are to protect the constitutional rights of Americans because the underlying bill merely requires a court order if the purpose of the acquisition is to target the American. A member of the Intelligence Committee, the Senator from Georgia, has said the underlying bill only prohibits surveillance when the Government is targeting a foreigner solely--solely--to listen to the American with whom that foreigner is communicating. Now, what does this mean? That means if the Government has any passing interest at all in the foreigner being wiretapped, it could intentionally conduct ongoing, long-term surveillance of an American inside the United States without a warrant. Now, the DNI says that would be unconstitutional, but it appears to be permissible under the current bill. Recently declassified exchanges between the administration and congressional intelligence committees demonstrate why the issue of reverse targeting is a very real problem. According to the administration, ``if valid collection of the foreign intelligence target indicates that the person in the United States is of intelligence interest,'' NSA would disseminate an intelligence report to the FBI, which can request the identity of that person and ``which could''--I repeat, could--``seek a FISA court order to conduct electronic surveillance in the United States.'' Mr. President, I ask unanimous consent to have printed in the Record the declassified documents to which I am referring.

Mr. FEINGOLD. Mr. President, this confirms that when the Government has an interest in an American, it is entirely up to the discretion of the FBI to decide whether the Government will seek a warrant to listen to that American's communications. But the FBI may not seek a warrant for any number of reasons, including lack of resources, insufficient coordination with other elements of the Government, or simple incompetence. A recent Justice Department inspector general report finding that the FBI's court-approved surveillance was disrupted because the Bureau failed to pay the telecommunications company on time should give us cause for concern. In this case, this amendment would actually help us to stop terrorists by requiring that when a foreign terrorist talks to a person in the United States and that communication prompts a significant interest in the American, it can't just plain fall through the cracks. Now, of course, the FBI might also choose not to seek a warrant because it doesn't have a real case against the American or because the Government doesn't want to tell the FISA Court the real reason it is interested in that American. So if the FBI doesn't seek a court order, can the NSA just listen in indefinitely to the communications of Americans so long as they are communicating with a person overseas? I am afraid to say, Mr. President, the answer appears to be yes. According to the administration, the FBI, upon receipt of the identity of the American, ``can decide whether or not to follow up. NSA surveillance against the foreign target would continue.'' The Government's apparent authority to continue indefinitely its surveillance of the international communications of Americans is not limited to terrorism cases where the Government should at least have an incentive to seek warrants against an American. It applies to all foreign intelligence. That includes the communications of an American who is talking to a person overseas who is not a terrorist suspect, is not suspected of any wrongdoing, and is not even an agent of a foreign power. Yet, no matter how interested the Government is in what that innocent American has to say, if the FBI doesn't think it is worth its while to seek a court order or if the FBI knows it couldn't get the order, the surveillance continues nonetheless. This raises serious constitutional concerns, which is why the Rockefeller-Levin bill, the alternative to the Protect America Act that the Senate considered back in August, required procedures to seek a court order if electronic surveillance was ``of the nature or quantity as to infringe on the reasonable expectations of privacy of persons within the United States.'' Yet, in a recently released letter, the DNI complained about this requirement, saying it would take months to make this determination, that they couldn't determine in advance what such a procedure would say. In other words, even as the administration sought and obtained broad new authorities to collect communications of Americans, the administration refused to even consider when it might be violating the Constitution. If the administration can't assure us that they respect the Constitution, Congress needs to step in. For all their promises that reverse targeting is not occurring, the record is clear there is nothing to stop it, and the administration has resisted establishing procedures to protect the rights of Americans. At the same time, it has sought to remove the FISA Court's ability to protect those rights. This bill denies the FISA Court any role whatsoever in determining or monitoring why a person overseas has been wiretapped, which, of course, would help indicate whether the Government is conducting reverse targeting of an American. The bill denies the court the ability to monitor what becomes of the communications of Americans that are collected. Mr. President, it is clear this administration won't protect the constitutional rights of Americans, and unfortunately, in the PAA, Congress passed legislation denying the courts any oversight role. It is critical Congress act to remedy this great problem. We have a unique opportunity to protect the Constitution and stop abuses before they happen. I hope my colleagues will support this amendment. Mr. President, it appears there is no opposition to it, but nonetheless I will retain the remainder of my time. Mr. President, I ask unanimous consent that the pending amendment be set aside so that I may call up another amendment.

Mr. FEINGOLD. Mr. President, I call up amendment No. 3912.

Mr. FEINGOLD. Mr. President, this amendment ensures that in implementing the new authorities provided in this bill, the Government is acquiring the communications of targets in whom it has some foreign intelligence interest and is not conducting bulk collection of all communications between the United States and overseas. This amendment was also approved by the Judiciary Committee. This amendment is necessary because of the vast and overbroad authorities provided by the PAA and this bill. In public testimony, the DNI stated that the PAA would authorize the bulk collection of all communications between the United States and overseas. Now, that could cover every communication between Americans inside the United States and Europe or South America or the entire world. It could also include a communication between Americans overseas and their family and friends back home. This bill is understood to allow the warrantless targeting of a terrorist suspect overseas even when that person is communicating with an American at home. The bill does not simply apply to terrorist suspects, however. It permits warrantless collection of communications between law-abiding Americans and people overseas who are not suspected of doing anything wrong at all. That is a problem that needs to be addressed. But this bill does not just allow the targeting of conversations of people who are not suspected of any wrongdoing; this bill actually allows the Government to capture all international communications to or from the United States in bulk, for no good reason. I think it is safe to say no one in this country expects that all of their international communications can be collected by the Government. That kind of communications dragnet would offend anyone who has ever communicated with friends, family, or professional associates in other countries. It raises serious constitutional questions. It would completely overwhelm the already inadequate minimization procedures that are the only bump in the road to completely uncontrolled dissemination of information about Americans. And there would be no court oversight whatsoever. Bulk collection poses yet another serious constitutional danger. By collecting all international communications, the Government would be collecting communications between Americans overseas and their friends and family back home. Senators Wyden and, Whitehouse and I have fought hard to ensure that Americans overseas cannot be intentionally targeted without a warrant, but bulk collection is a backdoor way to conduct the same warrantless wiretapping. Imagine the number of Americans' communications, not with foreigners but with other Americans--with other Americans, Mr. President--that would be acquired by the Government through bulk collection of, say, communications between the United States and Britain. That means Americans studying and working abroad, tourists passing through, and even U.S. troops stationed there. Nothing--nothing--would prevent their communications from being collected and retained, and nothing would prevent those communications from being disseminated so long as the Government decided there was foreign intelligence value. I ask my colleagues: At what point do we draw the line? At what point does the Constitution mean something? I am sure some of my colleagues will say we should trust the Government not to do this, not to abuse this. Yet the DNI has testified that while bulk collection is not needed: It would certainly be desirable, if it was physically possible to do so. This is not a short-term piece of legislation. It is not reassuring that the intelligence community cannot currently collect all international communication. This bill does not sunset for years. What is technically possible in this area changes rapidly. Given the potential impact on the privacy and constitutional rights of Americans posed by bulk collection, Congress needs to act now. The DNI has put us on notice that bulk collection is both authorized and, in his words, desirable. Legislative silence on this issue is consent. This body must take a position on this issue. Should the Government be able to sweep up all international communications involving Americans at home and abroad? We cannot avoid that question. The bill, combined with the DNI's comments, places it squarely before us. The amendment I have offered here is extremely modest. It merely requires the Government to certify to the court that in using these broad new authorities to conduct warrantless surveillance, it is collecting the communications of foreign targets from whom it expects to obtain foreign intelligence information. The Government does not have to explain its foreign intelligence interests to the Court; it does not even have to identify its target. It merely has to say that an interest exists, and the court cannot challenge this certification. Because this amendment is so modest, opponents have raised an absurd hypothetical argument against it, and this is what it is: that it would somehow prevent the collection of communications into or out of an enemy-occupied city that the U.S. military is about to invade. This argument is plain silly. My amendment requires that there be a foreign intelligence purpose for collection. This hypothetical posited by opponents of the amendment--and all individuals in a city our troops are about to invade would clearly have foreign intelligence value. That is what distinguished this case, in which the Government can easily make the certification required by the amendment and, on the other hand, the bulk collection of all communications between, say, the United States and Europe. The reason absurd scenarios such as this have been raised as ``unforeseen consequences'' is that opponents of this amendment do not want to address the consequences of not passing it, the consequences of the Government collecting all communications between the United States and Canada or Europe or South America, the consequences of millions of innocent Americans' communications being collected, the consequences of already inadequate minimization procedures being overwhelmed by the collection. These are not even unforeseen consequences. The DNI testified that if this were physically possible, bulk collection would certainly be desirable. The DNI envisions a country where the Government, if it were technologically feasible, would listen in on every international phone call made by its citizens and read every international e-mail. That is a police state, not the United States of America. This amendment will help put to rest another concern that has been expressed about this legislation. In August, after the enactment of the PAA, the DNI stated: Now, there is a sense that we are doing massive data mining. In fact, what we are doing is surgical. A telephone number is surgical. So if you know what the number is, you can select it out. And the DNI then added: We have got a lot of territory to make up with people believing that we are doing things that we are not doing. The best way to assure Americans that the Government is not doing massive data mining of their international communications is not to authorize the massive collection of their international communications. The DNI cannot have it both ways. He cannot complain that people believe the Government is doing things it is not doing, and then oppose amendments to the law that would prohibit the Government from doing those very same things, especially when he has also said that bulk collection would be ``desirable'' if it were physically possible. Finally, my amendment would help resolve a serious constitutional question surrounding this bill. When Americans are on the line, the constitutionality of the surveillance depends in part on how it is conducted. Bulk collection of millions of Americans' communications of which the Government has no interest in the person on the other end of the line could very well be unreasonable under the fourth amendment. We can eliminate this particular constitutional problem with the adoption of this very modest amendment. I challenge anyone who opposes this amendment to stand up on this floor and explain to the American people why the Government should have the authority to engage in bulk collection of their private communications. Let's tell the American people the truth for once. Do not rely on hypothetical, unintended consequences that are easily answered. Explain why this very modest protection of the privacy of our citizens cannot be granted. I believe this amendment brings this bill into line with its actual intent. It gives Congress a say in how far these vast new authorities will be taken, and it protects the civil liberties of Americans. I urge my colleagues to support it. I yield the floor and I reserve the remainder of my time. The PRESIDING OFFICER (Mr. Salazar.) The Senator from Missouri.

Mr. FEINGOLD. Briefly, Mr. President, it is important to put in the Record that the Judiciary Committee, after carefully considering this not just in the context of intelligence--and I do serve on the Intelligence Committee as well--but in the context of the relationship between intelligence and civil liberties, came to the opposite conclusion on both reverse targeting and bulk collection and voted by a majority to adopt the very sort of amendments I am proposing. With regard to the vice chairman's assertion that I had not put forward any concerns about the impact of these authorities on the civil liberties of Americans, I, in fact, sent a classified letter to the DNI in December expressing serious concerns about the implementation of the Protect America Act and its effect on the rights of Americans. I can't discuss classified specifics here. But the fact is, these aren't merely theoretical concerns. One final point: The thrust of our concern about reverse targeting and bulk collection doesn't have to do necessarily with what has already occurred but what could occur, what abuses could occur if we do not clarify in the law that they should not be done. This is especially important in light of the fact that, as I have indicated, the Director of National Intelligence has said it would be desirable to do this bulk collection. If the DNI says that, wouldn't that be a reason to be a little concerned and to make sure it is clearly prohibited? I reserve the remainder of my time.

Mr. FEINGOLD

Mr. FEINGOLD. Yes.

Mr. FEINGOLD

Mr. FEINGOLD. I ask the Senator if I can quickly respond to the Senator from Missouri.

Mr. FEINGOLD. Mr. President, is it necessary for me to ask that the pending amendment be set aside? I ask unanimous consent that the pending amendment be set aside.

Mr. FEINGOLD. Mr. President, I call up amendment No. 3979.

Mr. FEINGOLD. Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.