Dianne Feinstein

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, today I am introducing the Robocall Privacy Act of 2008, cosponsored by my colleagues Senator Specter, Senator Inouye and Senator Durbin. This is a simple, straight-forward bill that would allow continued political outreach through prerecorded phone messages, but protect American families from being inundated by calls all through the day and night. In recent years, we have seen an unparalleled development of new technologies that help political candidates reach out to voters. This is a good thing. Political speech is essential, and should be protected. The vast majority of these technological developments bolster the Democratic process, promoting an interchange of information and ideas. One of these is the so-called robocall, in which a prerecorded message can be sent out to tens of thousands of voters at a minor cost through computer automation. With television and radio ads becoming so expensive, these prerecorded calls can play an important role alerting voters to a candidate's position and urging their support at the polls. A recent Pew Foundation poll found that 80 percent of Iowans in the recent primaries received automated political robocalls. A high level of sophistication goes into these robocalls--they are targeted and specific software dictates who is called, and when. But the process can be abused. And we all have heard stories about people being called over and over and over again at all hours of the day and night. I believe this is wrong. Not only is it interfering with the privacy rights of Americans, but it can turn people away from the political process itself. Commercial calls are already limited by the Federal Trade Commission's ``Do Not Call'' list--with millions of individuals subscribing. But political calls were specifically exempted from that list. Let me be clear: I am not seeking to eliminate all robocalls. Instead, this legislation is carefully designed to provide some safeguards without halting the practice altogether. The Robocall Privacy Act of 2008 bans political robocalls to any person from 9 p.m. in the evening and a.m. in the morning. It also bans more than two political robocalls from each campaign to the same telephone number per day, bans the caller from blocking the ``caller identification'' number, and requires an announcement at the beginning of the call identifying the individual or organization making the call and the fact that it is a pre-recorded message. This is to prevent misinformation about the caller. The enforcement provisions of this bill are simple and intent on stopping the worst of these calls. The bill creates a civil fine for violators of the law, with additional fines for callers who willfully violate the law. The bill also allows voters to sue to stop those calls immediately, but not receive money damages. A judge can order violators of the law to stop these abusive calls. Why are these provisions so important? Let me briefly describe some recent incidents: Hundreds of robocalls woke voters up at 2 in the morning during a 2007 New York election--because of a software programming error. The calls were supposed to occur at 2 p.m. In the Nebraska 3rd District Congressional Election, voters complained to candidate Scott Kleeb when they received dozens of calls, containing poor-quality versions of his voice. Kleeb's supporters claim that his voice was recorded, and used in an abusive robocall against him. In the 2006 Congressional elections, many calls wrongly implied that one candidate was making a robocall. The message began with a recorded voice stating that the call contained information about U.S. Representative Melissa Bean. Some voters called Bean's office to complain without listening to the entire message, which eventually identified an opposing party committee as the sponsor--when most voters had hung up. Representative Bean had to spend campaign funds informing voters she had not made that call. The National Do Not Call Network--a nonprofit focused on this issue-- has indicated voters receive many calls a day. They have reported as much as 37 political phone calls in one day for one voter. That same organization reports that 40 percent of its membership indicated it received between 5 and 9 calls a day during the election season. In a recent Texas campaign, a negative robocall was sent to voters early in the morning--supposedly from one of the candidates. That candidate immediately protested it was not done on his behalf--but instead was an attempt to smear him by using his name. Voters became furious at the call. In a Maryland race in November 2006, in a conservative area residents received a middle-of-the-night robocall from the nonexistent ``Gay and Lesbian Push,'' urging them to support one of the candidates. That candidate lost the election, and enraged voters about the false, late- night call. Repeated robocalls to Tennessee resident Jonathan Gregory caused him to complain to The Tennessean newspaper: ``It's extremely annoying, and it's like getting telemarketing calls at work. . . . I think they should have some type of limit on how many times they can call the same number.'' A February 1 Letter to the Editor of the Harrisburg Patriot-News, from a woman from East Pennsboro, PA, indicated that she received many political robocalls to her personal cell phone and was billed for each call. I am a strong supporter of the First Amendment protection for political speech and I want to encourage the free exchange of information about candidates. But I also believe people should have a right to be protected from the most egregious forms of abuse. However, the worst of these calls are disturbing people in their homes by forcing them to answer calls and listen again and again. Something must be done. The bill does not ban robocalls. It merely provides a reasonable framework of tailored time, place, and manner restrictions. I hope my colleagues join me in supporting the Robocall Privacy Act of 2008.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I had the great pleasure of knowing Tom Lantos as a friend and as a mentor. I have known him for many years. I last spoke with him about 3 weeks ago, maybe 4, and he said he was going to forego treatment, that he was ready for whatever would come, that he and Annette were going to remain in Washington, that he was very content with his medical treatment at Bethesda, and he did not believe he would try anything heroic. Those of us who know, know cancer of the esophagus is devastating and unrelenting. From that point on, I began to think quite a bit about Tom Lantos. I thought back when Yahoo had the confrontation with China and did not stand up but gave in to China, and Tom stood on his feet, with amazing blue eyes and his gray hair, and said: They are moral pygmies. He called it as it was. He stood for human rights. After 30 years in the House, he became Chairman of the Foreign Relations Committee. Regretfully, his life ended before he had much more time than a year in that position. Tom Lantos represented the district directly to the south of my city, San Francisco. He was a wonderful Representative. I watched him over the past 30 years as time went on. I watched his 18 grandchildren grow. I remember meeting them in the airport in Denver. I do not know whether Members know this; some of them were home schooled, and they went to college at the age of 14. That is pretty amazing; all high achievers, all very close, a tight family; a wife who was his childhood sweetheart. This does not often happen. But then if you think back to Hungary in those days, and you think back to a young, blue-eyed man in the camps, escaping at night, being caught, coming back, leaving again, becoming part of Raoul Wallenberg's group, coming to this country, becoming educated and all the greatness of the country opening before him. He truly measured up to the greatness of America. I was very proud to call Tom Lantos a friend and a mentor. He will be missed. He will be missed in his district, he will be missed in California, and he will be missed in the United States. I yield the floor.

Mrs. FEINSTEIN. I thank the Senator. I would like to say a few words about Tom Lantos, he was a friend, and also speak on two amendments on the Foreign Intelligence Surveillance Act.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. I will yield.

Mrs. FEINSTEIN. Mr. President, I rise to speak on two of the amendments in the list of amendments to be voted on tomorrow. The first is amendment 3910. That relates to making the Foreign Intelligence Surveillance Act the exclusive authority for conducting electronic surveillance. This is cosponsored by Chairman Rockefeller, Chairman Leahy, by Senators Nelson of Florida, Whitehouse, Wyden, Hagel, Menendez, Snowe, Specter, Salazar, and I ask unanimous consent to add Senator Cantwell to that list.

Mrs. FEINSTEIN. For the information of my colleagues, I do not intend to modify this amendment, and so I will be seeking a vote on the amendment as it is currently drafted. I voted in support of the FISA bill as a member of the Intelligence Committee. But I made clear in that committee, as well as in statements called additional views, which are attached to the report of the bill, that I coauthored with Senators Snowe and Hagel that changes were necessary. In the Judiciary Committee, we were able to secure improvements to the Intelligence Committee's bill that I believed were needed. Most importantly, the Judiciary Committee added strong exclusivity language similar to the amendment I have now before the Senate. Unfortunately, the Judiciary package was not adopted on the floor. So the amendments we present are designed to restore the exclusivity language I believe is vital to FISA and goes to the heart of the debate on this bill, which is whether this President or any other President must follow the law. With strong exclusivity language, which is what we try to add, we establish a legislative record that the language and the intent of the Congress compels a President now and in the future to conduct electronic surveillance of Americans for foreign intelligence purposes within the parameters and confines of this legislation. The amendment makes the following important changes to the bill: First, it reinforces the existing FISA exclusivity language in title 18 of the U.S. Code by restating what has been true in the statute since 1978--that FISA is the exclusive means for conducting electronic surveillance, period. So legislative intent is clear. Second, the amendment answers the so-called AUMF; that is, the authorization to use military force loophole used by the President to circumvent FISA. What is that? The administration has argued that the authorization of military force against al-Qaida and the Taliban implicitly authorized warrantless electronic surveillance. This is an argument embroidered on fiction, made up from nothing. Nonetheless, the executive has chosen to use it. Under our amendment, it will be clear that only an express statutory authorization for electronic surveillance in future legislation shall constitute an additional authority outside of FISA. In other words, if you are going to conduct surveillance outside of FISA, there has to be a law that specifically enables you to do so. Otherwise, you stay within FISA. Third, the amendment makes a change to the penalty section of FISA. Currently, FISA says it is a criminal penalty to conduct electronic surveillance except as authorized by statute. This amendment specifies that it is a criminal penalty to conduct electronic surveillance except as authorized by FISA or another express statutory authorization. This means that future surveillance conducted under an AUMF or other general legislation would bring on a criminal penalty. So follow the law or else there is a criminal penalty. Fourth, the amendment requires more clarity in a certification the Government provides to a telecommunications company when it requests assistance for surveillance and there is no court order. Henceforth, the Government will be required to specify the specific statute upon which the authority rests for a request for assistance. I believe our amendment will strengthen the exclusivity of FISA. I believe it is critical. Without this strong language, we run the risk that there will be future violations of FISA, just as there have been present violations of FISA. History tells us that this is very possible. Let me go into the history for a minute because it is interesting how eerily similar events of the past were to events of today. Let me tell this body a little bit about something called Operation Shamrock. In its landmark 1976 report, the Church Committee disclosed, among other abuses, the existence of an Operation titled ``Shamrock.'' What was Shamrock? It was a program run by the NSA and its predecessor organizations from August of 1945 until May of 1975. That is, for 30 years, the Government received copies of millions of international telegrams that were sent to, from, or transiting the United States. The telegrams were provided by major communications companies of the day-- RCA Global and ITT World Communications--without a warrant and in secret. A third company, Western Union International, provided a lower level of assistance as well. It is estimated that at the height of the program, approximately 150,000 communications per month were reviewed by NSA analysts. So telegrams coming into the country and going out of the country all went through NSA. According to the Church Committee report, the companies agreed to participate in the program, despite warnings from their lawyers, provided they received the personal assurance of the Attorney General and later the President that they would be protected from lawsuit. The NSA analyzed the communications of Americans in these telegrams and disseminated intelligence from these communications in its reporting. If all of this history sounds eerily familiar, it should. The parallels between Shamrock and the Terrorist Surveillance Program are uncanny, especially when one considers that FISA was passed in 1978 as a direct result of the Church Committee's report. Yet here we are, same place, again today. Almost immediately after the Church Committee's report was unveiled, Congress went to work on what is now the Foreign Intelligence Surveillance Act to put an end to warrantless surveillance of Americans. FISA states that when you target surveillance on Americans, you need a court order, period. Some of my colleagues argue that FISA was not the exclusive authority since 1978 and that the President has inherent article II authorities to go around FISA. On the first point, the legislative history and congressional intent from 1978 is clear: Congress clearly intended for FISA to be the exclusive authority under which the executive branch may conduct electronic surveillance. Let me read what the Congress wrote in 1978 in report language accompanying the bill: [d]espite any inherent power of the President-- That means despite any article II authority-- to authorize warrantless electronic surveillance in the absence of legislation, by this bill and chapter 119 of title 18, Congress will have legislated with regard to electronic surveillance in the United States, that legislation with its procedures and safeguards, prohibits the President, notwithstanding any inherent powers, from violating the terms of that legislation. That is the report language written in 1978. The congressional debate also took on the Supreme Court's decision in the Keith case in which the Court ruled that since Congress hadn't enacted legislation in this area at that time, then it simply left the Presidential powers where it found them. Right? Wrong. In response to the Court's decision, the 1978 congressional report stated the following: The Foreign Intelligence Surveillance Act, however, does not simply leave Presidential powers where it finds them. To the contrary, this bill would substitute a clear legislative authorization pursuant to statutory, not constitutional, standards. Clear. Distinct. Definitive. It is important that the record here today clearly reiterates that in 1978 there was an unambiguous position that FISA was the exclusive authority under which electronic surveillance of Americans could be conducted. This was in the bill language and the report language as passed by the 95th Congress. But FISA's exclusivity was recognized not just by the Congress. The executive branch also agreed that FISA was controlling and that any and all electronic surveillance would be conducted under the law. President Carter at the time issued a signing statement to the bill. This wasn't a signing statement like we see today. It was not used to express the President's disagreement with the law or his intent not to follow part of the law. Rather, President Carter used his statement to explain his understanding of what the law meant. Here it is in direct quote: The bill requires, for the first time, a prior judicial warrant for all electronic surveillance for foreign intelligence or counterintelligence purposes in the United States in which communications of U.S. persons might be intercepted. Again, clear, distinct, definitive. By issuing this statement, President Carter and the executive branch affirmed not only Congress's intent to limit when the executive branch could conduct surveillance, but it ratified that Congress had the power to define the parameters of executive authority in this area. So there was an abuse--Operation Shamrock--similar to this incident with the telecoms today, followed by a clear act of Congress in passing FISA, followed by a clear statement of the executive affirming the meaning of FISA. Together, these acts were taken to end the exercise of unchecked executive authority. Here we are, back in 1978 today. Despite the 1978 language and Congress's clear willingness to amend FISA to make it apply to the new war against terrorism early in its tenure, the Bush administration decided that it would act outside the law. This was a conscious decision. Not one part of FISA was ever tried to be put under the auspices of the FISA law and the Foreign Intelligence Surveillance Court. That was both wrong and unnecessary. To justify this mistake, the Department of Justice developed a new convoluted argument that Congress had authorized the President to go around FISA by passing the authorization for use of military force against al-Qaida and the Taliban. Can anybody really believe that? This, too, was wrong. I was there. I sat in most meetings. I defy anybody in this body to come forward and tell me privately or publicly that going around FISA was ever contemplated by the AUMF. In fact, it was not. It was never even considered. Apparently not confident of its AUMF argument, the administration decided to also assert a broad theory of Executive power, premised on Article II of the Constitution. These are the powers of the President. Under this argument, the Bush administration asserted that despite congressional action, the President has the authority to act unilaterally and outside of the law if he so chooses, simply by virtue of his role as Commander in Chief. While Presidents throughout history all tried to expand their power, this new twist would place the President of the United States outside the law. Taken to its logical conclusion, if the Congress cannot enact statutes that the President must follow, then he is above the law. I disagree with that position. I do not believe anyone can be above the rule of law. But I am not the only one. Justice Jackson described it best in his Youngstown opinion. In 1952, against the backdrop of the Korean war, the Supreme Court addressed the issue of when congressional and executive authorities collide in the Youngstown Sheet and Tube Company v. Sawyer. The question presented in Youngstown was whether President Truman was acting within his constitutional powers when he issued an order directing the Secretary of Commerce to take possession of and operate most of the Nation's steel mills. In other words, the Government was going to take over the steel mills. The Truman administration argued that the President was acting within his inherent power as Commander in Chief in seizing the steel mills, since a proposed strike by steelworkers would have limited the Nation's ability to produce the weapons needed for the Korean war. The Bush administration today is making the very same argument. It is asserting that the President's constitutional authorities as Commander in Chief trump the law. However, in a 6-to-3 decision in Youngstown, the Supreme Court held that President Truman exceeded his constitutional authority. Justice Jackson authored the famous concurring opinion, setting forth the three zones into which Presidential actions fall. The first zone: When the President acts consistently with the will of Congress, the President's power is at its greatest. Two: When the President acts in an area in which Congress has not expressed itself, there is an open question as to the scope of congressional and Presidential authority. So we know the first two. The third zone: When the President acts in contravention of the will of Congress, Presidential power is at its lowest. That is where we are right now. Clearly, President Bush acted outside of the scope of the law. According to Youngstown, his power is at its lowest. The only way to test that is to bring a case before the Supreme Court again. But the fact the Court ruled against Truman in a situation of war--in a situation where a strike would have shut down the steel mills, when Truman tried to use his commander in chief authority to seize the steel mills, the Court said: You cannot do that, and then it went on to define the different zones of Presidential authority. It is a big opinion, and it is one which is often quoted in our judicial hearings on Supreme Court nominees. Justice Jackson also wrote: When the President takes measures incompatible with the expressed or implied will of Congress-- Which is this case-- his power is at its lowest ebb, for then he can rely only on his constitutional powers, minus any constitutional powers of Congress over the matter. Now, this is key, this last part: Although Justice Jackson's opinion was not binding at the time, the Supreme Court has since adopted it as a touchstone for understanding the dimensions of Presidential power. The Youngstown case is as important today as it was then. That is why I am proposing this amendment. I want to make it crystal clear, and my cosponsors want to make it crystal clear, that Congress has acted to prohibit electronic surveillance on U.S. persons for foreign intelligence purposes outside of FISA, and this amendment does that. One day this issue is going to be before the Court, and on that day I want the Justices to be able to go back and see the legislative intent; the legislative intent as it was in the Judiciary Committee, the legislative intent as it is here on the floor, and the legislative intent of this amendment to strengthen the exclusivity parts of FISA. What we have here is a case of history repeating itself: abuse followed by a clear statement from Congress, then another abuse with the Terrorist Surveillance Program. It too should be followed by a clear statement from Congress. Now is the time for the Congress of the United States to reassert its constitutional authorities and pass a law that clearly and unambiguously prohibits warrantless surveillance outside of FISA. Now is the time to say that no President, now or in the future, can operate outside of this law. I mentioned that in 2001 the President chose to go outside of FISA. In January of 2007, after the Intelligence Committee learned about the full dimensions of the law, guess what. The executive branch brought it to the Court and bit by bit put the program under the Foreign Intelligence Surveillance Court. Today, the entire program is within the parameters of the Foreign Intelligence Surveillance Court. What I am saying to this body is it was a terrible misjudgment not to do so in 2001, because I believe the Foreign Intelligence Surveillance Court would have given permission to the program. So I believe this amendment is absolutely crucial, and I very much hope it will pass tomorrow. Now, if I may, I wish to speak in support of my amendment to replace the full immunity in the underlying bill with a system of FISA Court review. This is amendment No. 3919. I am joined in this amendment by Senators Bill Nelson, Ben Cardin, and Ken Salazar. I ask unanimous consent to add Senator Whitehouse as a cosponsor, and I know that Senator Whitehouse wishes to come to the floor to speak to this amendment.

Mrs. FEINSTEIN. This amendment is about allowing a court to review the request for immunity for the telecommunications companies, but in a way that is carefully tailored to meet this unique set of suits. It allows for the good faith defense if the companies reasonably believed the assistance they provided the Government was legal. As Members know, the FISA Court comprises 11 Federal district court judges appointed by the Chief Justice. It has heard thousands of applications for FISA warrants and has recently made determinations on the executive's procedures under the Protect America Act. In January of 2007, the Court put the entire Terrorist Surveillance Program under its jurisdiction. Its judges and its staff are experts in surveillance law, and the Court protects national security secrets. Let me describe the amendment briefly. Under this amendment, the FISA Court is directed to conduct a tailored, three-part review. Part one: The FISA Court will determine whether a telecommunications company actually provided the assistance to the Federal Government as part of the Terrorist Surveillance Program. If not, those cases are dismissed. So if you didn't give help and you have litigation pending, the case is dismissed, period. Second: If assistance was provided, the Court would review the request letters sent from the Government to the companies every 30 to 45 days. The FISA Court would then have to determine whether these letters, in fact, met the requirements of the applicable law. There is law on this. It is part of FISA. It is 18 U.S.C. 2511. If they met the requirements, the cases against the companies are dismissed. Now, let me tell my colleagues what the law says. Sections 2511(2)(a)(ii)(A) and (ii)(B) state that companies are allowed to provide assistance to the Government if they receive a certification in writing by a specified person (usually the Attorney General or a law enforcement officer specifically designated by the Attorney General). The certification is required to state that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required by the Government. Now that is what the law says. It is short, it is succinct, it is to the point. The question is: Do the specifics of the actual documents requesting assistance meet the letter of this law with respect to contents and timing. If they did, the companies would be shielded from lawsuits. Why? Because that is the law. That is what the law says. No one would want us not to follow the law. Finally, in any case where the defendant company did provide assistance but did not have a certification that complied with the requirements I have read, the FISA Court would assess whether the company acted in good faith, as has been provided under common law. There are several cases of common law that describe what is called the good faith defense--the U.S. v. Barker, Smith v. Nixon, Halperin v. Kissinger, and Jacobson v. Bell Telephone. So there is common law on the subject. There would be at least three lines of defense for defendant companies in this situation. They could argue that the assistance was lawful under the statutes other than 18 U.S.C. 2511--the law I have cited; that they believed, perhaps wrongly, that the letters from the Government were lawful certifications; or that complying with the request for assistance was lawful because the President had article II authority to conduct this surveillance. They could make their arguments, and the plaintiffs, against the defendant companies, could make their arguments. In this case, the FISA Court would then determine whether the company acted in good faith and whether it had an objectively reasonable belief that compliance with the Government's written request or directives for assistance were lawful. If the Court finds that the company met this standard, the lawsuits would be dismissed. I believe this very narrow three-part test strikes the right balance between the competing interests in the immunity debate. This amendment neither dismisses the cases wholesale, nor does it allow the cases to proceed if the companies had an objectively reasonable belief that their compliance was lawful. Let me point out for a moment some of the history relevant to this issue. First: Requests for assistance from the Government to the telecoms came about 1 month following the worst terrorist attack against our Nation. That is fact. There was an ongoing acute national threat. That is a fact. The administration was warning that more attacks might be imminent. That was fact. And we now know that there was a plot to launch a second wave of attacks against the west coast. Two: Certain telecom companies received letters every 30 to 45 days from very senior Government officials. That is fact. I have read them. The letters said the President had authorized their assistance. That is fact. They also said the Attorney General had confirmed the legality of the program. That is fact. These assurances were from the highest levels of the Government. Third: Only a very small number of people in these companies had the security clearances to be allowed to read the letters, and they could not consult others with respect to their legal responsibility, nor are these telecommunication company executives expert in separation of powers law--either article II legal arguments or the flawed AUMF argument. Fourth: As I mentioned, common law has historically provided that if the Government asks a private party for help and makes such assurances that help is legal, the person or company should be allowed to provide assistance without fear of being held liable. That is true. Common law does this. One would think this would be especially true in the case of protecting our Nation's security. Fifth, taking no legislative action on the pending cases ignores the fact that these companies face serious, potentially extraordinarily costly litigation but are unable at the present time to defend themselves in court. The Government has invoked the state secrets defense. Now, this is a sort of insidious defense. It places the companies in a fundamentally unfair place. Individuals and groups have made allegations to which companies cannot respond. They cannot answer charges, nor can they respond to what they believe are misstatements of fact and untruths. Bottom line, they cannot correct false allegations or misstatements, they cannot give testimony before the court, and they cannot defend themselves in public or in private. While I have concerns about striking immunity altogether or substituting the Government for the companies, I don't believe full immunity is the best option without having a court review the certification and the good-faith defense. Currently, under FISA there is a procedure that allows the Government to receive assistance from telecommunications companies. As I have already described, title 18 of the U.S. Code, section 2511, states that the Government must provide a court order or a certification in writing that states: No warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required, setting forth the period of time during which the provision of the information, facilities, or technical assistance is authorized and specifying the information, facilities, or technical assistance required. . . . That is it. Under the law, these are the circumstances under which a telecommunications company may provide information and services to the Government. Unfortunately, the administration chose not to go to the FISA Court in the fall of 2001 for a warrant. I will never understand why. Instead, it asserted that Article II of the Constitution allowed the President to act outside of FISA. However, as I said, by January of 2007--more than 5 years later--the entire Terrorist Surveillance Program was, in fact, brought under the FISA Court's jurisdiction. So, ultimately, the administration agreed that the program can and should be conducted under the law. Senators Nelson, Cardin, Salazar, Whitehouse, and I believe the question of whether telecommunications companies should receive immunity should hinge on whether the letters the Government sent to these companies met the requirements of 18 U.S.C. 2511 or, if not, if the companies had an objectionably reasonable belief their assistance was lawful, and what that objective belief was. In other words, we should not grant immunity if companies were willingly and knowingly violating the law. So the best way to answer this question is to allow an independent court, skilled in intelligence matters, to review the applicable law and determine whether the requirements of the law or the common law principle were, in fact, met. If they were, the companies would receive immunity; if not, they would not. But a court would make that decision, not a body, some of whom have seen the letters but most of whom have not. But it would be a court that is skilled in this particular kind of law. I want to briefly comment on procedure. I very much regret that this amendment faces a 60-vote threshold when the other two amendments relating to telecom immunity face majority votes. Clearly, someone was afraid this might get a majority vote and, therefore, they put on a 60- vote requirement. This, I believe, is prejudicial, and it places a higher burden on this amendment. And the irony is, this amendment could be an acceptable solution for the other House, which has passed a bill that doesn't contain any provisions for immunity and has said they would not provide any provision for immunity. This is the way to handle that particular issue. I, therefore, urge my colleagues to support this amendment both on the merits and so that we can finish the FISA legislation. I hope the conferees will take a strong vote on this amendment--whether it reaches 60 Senators to vote aye or not--as a signal that it is a good solution when the legislation goes to conference. Mr. President, I ask for the yeas and nays on both of these amendments.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I rise today on behalf of myself and Senator Martinez to introduce legislation that takes a major step forward in curbing the abusive lending practices which contributed to the subprime mortgage crisis. With foreclosures at record levels, the housing market in steady decline, a global credit crunch, and the economy nearing recession, it is imperative that we act quickly to restore confidence in the American dream of home ownership. Our legislation will eliminate bad actors from the mortgage business, and require that brokers and lenders meet minimum national standards which ensure they are professional, competent, and trustworthy. First, it would create a comprehensive database of all residential mortgage loan originators. This includes mortgage brokers and lenders, as well as loan officers of national banks and their subsidiaries. Second, it would establish national licensing standards to ensure that mortgage brokers and lenders are trained in legal aspects of lending, ethics, and consumer protection. Our bill is similar to H.R. 3012, introduced in the House by Representative Spencer Bachus, the Ranking Member of the House Committee on Financial Services. The national licensing concept for loan originators has enjoyed bipartisan support and was included in the comprehensive mortgage reform bill, H.R. 3915, which recently passed the House. A combination of low interest rates and sophisticated mortgage products, among other factors, helped increase home ownership to record levels just 3 years ago. Subprime and exotic mortgages allowed millions of Americans--many with little or no down payment and questionable credit--to purchase homes by using adjustable-rate products with low initial monthly payments. There was explosive growth in the use of these sub-prime loans: in just 2 years, from 2004 to 2006, the number of subprime mortgages in California increased 110 percent, from 273,000 to 573,000--29.4 percent of total mortgages in the State. While the majority of lenders and brokers offered these mortgages in a responsible fashion, many others relied upon predatory lending tactics to place unsuspecting borrowers in mortgages they could not afford. Competitive pressures and lax oversight resulted in loans of increasingly poor quality being written. To make matters worse, consumers were not adequately protected from bad actors in the mortgage industry. The FBI recently reported that complaints of mortgage fraud have skyrocketed over the last few years. In 2003, the number of suspicious activity reports reviewed by the FBI economic crimes unit numbered 3,000. The number of mortgage fraud complaints increased to 48,000 last year, representing a jump of 1500 percent. Most mortgage brokers and non-bank lenders are only lightly regulated by State agencies. Standards of accountability have not kept pace with the increasing sophistication of the mortgage industry. As adjustable-rate mortgages reset to higher rates, many American families find themselves in homes they can no longer afford. The percentage of homeowners currently behind on their mortgage payments is at its highest level in 21 years. Mr. President, 2.2 million homeowners filed for foreclosure last year and many lenders have gone out of business or sought bankruptcy protection. It is projected that as many as 2 million Americans will be forced to file for foreclosure before this crisis abates, representing $160 billion in lost equity. The Center for Responsible Lending has projected that one out of every five subprime loans issued between 2005 and 2006 will fail. California has been especially hard hit. Mr. President, 5 of the 10 metropolitan areas with the highest foreclosure rate in the Nation are in California. The foreclosure rate in California is roughly twice the national average, with 1 foreclosure filing for every 258 households in the State. Lenders repossessed 84,375 California homes last year, a sixfold increase from 12,672 in 2006. Default notices--the initial step in the foreclosure process--increased 143 percent between 2006 and 2007, rising from 104,977 in 2006 to 254,824 in 2007. In San Diego County alone, foreclosures were up 353 percent in 2007. According to the FBI economic crimes unit, California has been identified as one of the top 10 ``mortgage fraud hot spots'' in the Nation. American families are hurting, and Californians are at the center of the storm. With close to 500,000 adjustable-rate mortgages scheduled to reset in California over the next 2 years, the situation is likely to worsen in 2008. The subprime mortgage crisis has threatened both the global economy and the American dream of home ownership. Accountability, professional standards, and oversight must be enhanced for everyone in the mortgage industry. This bill will make it so, and will help to ensure such a crisis never happens again. Specifically, the S.A.F.E. Mortgage Licensing Act would require that all residential mortgage loan originators are licensed, providing fingerprints, a summary of work experience, and consent for a background check to authorities. Additionally, minimum criteria are established that individuals must meet to obtain a license, including: no felony convictions; no similar license revoked; a demonstrated record of financial responsibility; successful completion of education requirements, 20 hours of approved courses, to include at least 3 hours related to Federal laws, 4 hours on ethics and consumer protection in mortgage lending, and 2 hours on the subprime mortgage marketplace; and, passage of a written exam, the exam must be at least 100 questions and a minimum score of 75 percent is required to pass. The Federal Reserve, Treasury, and Federal Deposit Insurance Corporation must also register all residential mortgage loan originators employed by national banks. Lastly, State regulators must develop a satisfactory licensing system within 1 year following enactment of this legislation. If this does not occur, the Housing and Urban Development Secretary is empowered to develop the national registry and license, generating revenue for its implementation through fees to license applicants. The subprime mortgage crisis is wreaking havoc on American homeowners and the national economy. The damage is truly staggering--more than 2 million foreclosure filings last year and another 2 million expected before this year is over. Many Americans simply cannot keep pace with adjustable-rate mortgages that are resetting, and some were steered into these obligations by unscrupulous actors. It is essential that this body take action to address some of the factors that got us here. This legislation does not assign blame, but rather provides a workable solution to protect homebuyers and begin to restore confidence in the American dream of homeownership. I hope that my colleagues will join us in moving this important bill through the Senate quickly. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I rise today on behalf of myself and Senator Martinez to introduce legislation that takes a major step forward in curbing the abusive lending practices which contributed to the subprime mortgage crisis. With foreclosures at record levels, the housing market in steady decline, a global credit crunch, and the economy nearing recession, it is imperative that we act quickly to restore confidence in the American dream of home ownership. Our legislation will eliminate bad actors from the mortgage business, and require that brokers and lenders meet minimum national standards which ensure they are professional, competent, and trustworthy. First, it would create a comprehensive database of all residential mortgage loan originators. This includes mortgage brokers and lenders, as well as loan officers of national banks and their subsidiaries. Second, it would establish national licensing standards to ensure that mortgage brokers and lenders are trained in legal aspects of lending, ethics, and consumer protection. Our bill is similar to H.R. 3012, introduced in the House by Representative Spencer Bachus, the Ranking Member of the House Committee on Financial Services. The national licensing concept for loan originators has enjoyed bipartisan support and was included in the comprehensive mortgage reform bill, H.R. 3915, which recently passed the House. A combination of low interest rates and sophisticated mortgage products, among other factors, helped increase home ownership to record levels just 3 years ago. Subprime and exotic mortgages allowed millions of Americans--many with little or no down payment and questionable credit--to purchase homes by using adjustable-rate products with low initial monthly payments. There was explosive growth in the use of these sub-prime loans: in just 2 years, from 2004 to 2006, the number of subprime mortgages in California increased 110 percent, from 273,000 to 573,000--29.4 percent of total mortgages in the State. While the majority of lenders and brokers offered these mortgages in a responsible fashion, many others relied upon predatory lending tactics to place unsuspecting borrowers in mortgages they could not afford. Competitive pressures and lax oversight resulted in loans of increasingly poor quality being written. To make matters worse, consumers were not adequately protected from bad actors in the mortgage industry. The FBI recently reported that complaints of mortgage fraud have skyrocketed over the last few years. In 2003, the number of suspicious activity reports reviewed by the FBI economic crimes unit numbered 3,000. The number of mortgage fraud complaints increased to 48,000 last year, representing a jump of 1500 percent. Most mortgage brokers and non-bank lenders are only lightly regulated by State agencies. Standards of accountability have not kept pace with the increasing sophistication of the mortgage industry. As adjustable-rate mortgages reset to higher rates, many American families find themselves in homes they can no longer afford. The percentage of homeowners currently behind on their mortgage payments is at its highest level in 21 years. Mr. President, 2.2 million homeowners filed for foreclosure last year and many lenders have gone out of business or sought bankruptcy protection. It is projected that as many as 2 million Americans will be forced to file for foreclosure before this crisis abates, representing $160 billion in lost equity. The Center for Responsible Lending has projected that one out of every five subprime loans issued between 2005 and 2006 will fail. California has been especially hard hit. Mr. President, 5 of the 10 metropolitan areas with the highest foreclosure rate in the Nation are in California. The foreclosure rate in California is roughly twice the national average, with 1 foreclosure filing for every 258 households in the State. Lenders repossessed 84,375 California homes last year, a sixfold increase from 12,672 in 2006. Default notices--the initial step in the foreclosure process--increased 143 percent between 2006 and 2007, rising from 104,977 in 2006 to 254,824 in 2007. In San Diego County alone, foreclosures were up 353 percent in 2007. According to the FBI economic crimes unit, California has been identified as one of the top 10 ``mortgage fraud hot spots'' in the Nation. American families are hurting, and Californians are at the center of the storm. With close to 500,000 adjustable-rate mortgages scheduled to reset in California over the next 2 years, the situation is likely to worsen in 2008. The subprime mortgage crisis has threatened both the global economy and the American dream of home ownership. Accountability, professional standards, and oversight must be enhanced for everyone in the mortgage industry. This bill will make it so, and will help to ensure such a crisis never happens again. Specifically, the S.A.F.E. Mortgage Licensing Act would require that all residential mortgage loan originators are licensed, providing fingerprints, a summary of work experience, and consent for a background check to authorities. Additionally, minimum criteria are established that individuals must meet to obtain a license, including: no felony convictions; no similar license revoked; a demonstrated record of financial responsibility; successful completion of education requirements, 20 hours of approved courses, to include at least 3 hours related to Federal laws, 4 hours on ethics and consumer protection in mortgage lending, and 2 hours on the subprime mortgage marketplace; and, passage of a written exam, the exam must be at least 100 questions and a minimum score of 75 percent is required to pass. The Federal Reserve, Treasury, and Federal Deposit Insurance Corporation must also register all residential mortgage loan originators employed by national banks. Lastly, State regulators must develop a satisfactory licensing system within 1 year following enactment of this legislation. If this does not occur, the Housing and Urban Development Secretary is empowered to develop the national registry and license, generating revenue for its implementation through fees to license applicants. The subprime mortgage crisis is wreaking havoc on American homeowners and the national economy. The damage is truly staggering--more than 2 million foreclosure filings last year and another 2 million expected before this year is over. Many Americans simply cannot keep pace with adjustable-rate mortgages that are resetting, and some were steered into these obligations by unscrupulous actors. It is essential that this body take action to address some of the factors that got us here. This legislation does not assign blame, but rather provides a workable solution to protect homebuyers and begin to restore confidence in the American dream of homeownership. I hope that my colleagues will join us in moving this important bill through the Senate quickly. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I wish to make another amendment pending, so I ask unanimous consent to set aside the pending amendment and call up amendment No. 3919. This is the FISA Court review of immunity amendment. This is my second amendment which is part of the unanimous consent agreement. I do this just to get it before the body.

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

Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that the present amendment be set aside in order for me to call up amendment No. 3910 on FISA exclusivity.

Mrs. FEINSTEIN. All right.

Mrs. FEINSTEIN. Mr. President, reserving the right to object, I wish to secure the ability, following this vote, to call up one of my amendments, if I might. My understanding is that maybe I can do it now.

Mrs. FEINSTEIN. Mr. President, I voted for this FISA legislation in the Intelligence Committee. I indicated then that I had some concerns about it. I filed additional views with respect to the need for stronger exclusivity provisions. Then the Judiciary Committee reported out a bill that included its view with respect to strengthening the fact that the Foreign Intelligence Surveillance Act would be the exclusive manner in which electronic surveillance against Americans could be conducted. The Judiciary bill subsequently failed on the floor of the Senate. The amendment I have at the desk is essentially the exclusivity language from that Judiciary Committee amendment. It has several cosponsors: the chairman of the Intelligence Committee, Mr. Rockefeller; chairman of the Judiciary Committee, Mr. Leahy; Senator Nelson of Florida; Senator Whitehouse; Senator Wyden; Senator Hagel; Senator Menendez; Senator Snowe; and Senator Specter. As filed this is an amendment that only covers exclusivity. In the interim period, the vice chairman of the Intelligence Committee approached me about the possibility of a modification of the amendment that would allow the administration to be able to operate outside of FISA for a time. We have not been able to come to terms on that amendment. I could not agree to the length of time that Mr. Bond proposed, which was 45 days plus an additional 45 days, for a total of 3 months, enabling the administration to operate without a FISA warrant. The fact is, since January of 2007, the entire Terrorist Surveillance Program has operated within the confines of the Foreign Intelligence Surveillance Act and under orders from the Foreign Intelligence Surveillance Court. That is, I believe, as it should be. I have a modification to my exclusivity amendment that would limit the period of time outside of FISA following a declaration of war, an authorization for the use of military force, or a major attack against the nation to 30 days. The question is whether I would have unanimous consent from the vice chairman to be able to call up that modification of my amendment. But that has not been given to me yet. So at this time, I am going to rest my case on the exclusivity amendment, and I will have an opportunity, I hope, to argue it later. I would now like to call up my amendment, No. 3919.

Mrs. FEINSTEIN. I ask that the amendment be set aside.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, there will be a meeting of the Committee on Rules and Administration on Wednesday, February 13, 2008 at 10 a.m. in SR-301, Russell Senate Office Building, in order to hear testimony on Protecting Voters at Home and at the Polls: Limiting Abusive Robocalls and Vote Caging Practices.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, today Senator Hutchison and I are introducing two bills that will significantly alleviate the burden of illegal immigration on State and local governments: the SCAAP Reimbursement Protection Act of 2008 and the Ensure Timely SCAAP Reimbursement Act. We are joined by Senators Boxer, Kyl, Schumer, Cornyn, Durbin, McCain, Bingaman, Craig, Cantwell, Domenici, and Crapo. These bills will amend the State Criminal Alien Assistance Program, SCAAP, statute to ensure that states and localities receive more funding for costs associated with incarcerating criminal aliens, and that these reimbursements are given out in a timely manner. The cost of incarcerating criminal aliens is high. In California alone, the State spent more than $900 million in 2007 to house over 20,000 criminal aliens. Congress enacted SCAAP in 1994 to help reimburse States and localities for the cost of arrest, incarceration, and transportation of these aliens. However, in 2003, the Department of Justice, DOJ, reinterpreted the statute. Now States are only reimbursed for what they spend incarcerating convicted criminal aliens and only when the arrest and conviction occur in the same fiscal year. The DOJ reinterpretation has significantly cut the reimbursement local governments are eligible to receive for incarcerating and processing illegal aliens. This reinterpretation is even more devastating because SCAAP is consistently under-funded. The President has zeroed out SCAAP funding in his budget proposal over the past 6 years. Through bi-partisan support, Congress was only able to partially fund the program. As a result, SCAAP only reimburses States for a fraction of the costs of incarcerating criminal aliens. For example, in fiscal year 2007, SCAAP reimbursed only $109.5 million of the more than $912.5 million spent by the California Department of Corrections that year. That means the State paid $803 million of its own funds to house criminal aliens. This cut has had a domino effect on public safety funding. Every dollar less that SCAAP reimburses States means a dollar less to spend on critical public safety services. For example, after the SCAAP funding cuts in 2003, the Los Angeles County Sheriff's Department implemented an ``early release'' policy for prisoners convicted of misdemeanors. I believe it is the Federal Government's responsibility to control illegal immigration. The funding cuts imposed by this administration have let our local public safety services down, and have made our communities less safe. The SCAAP Reimbursement Protection Act of 2008 would restore the original intent of SCAAP so that States are reimbursed for the costs of incarcerating aliens who are either charged with or convicted of a felony or two misdemeanors. States would also be reimbursed regardless of the fiscal year of the incarceration and conviction. This bill has been endorsed by the National Sheriffs' Associate, California State Association of Counties, CSAC, the U.S./Mexico Border Counties Coalition, the Virginia Sheriffs' Association, the Los Angeles County Sheriff Lee Baca, and the Sheriffs' Association of Texas. Our colleagues on the House Judiciary Committee unanimously passed a companion bill, H.R. 1512, and I urge you to do the same. Another problem with SCAAP is the significant delay in reimbursement. Recently, State and county governments that foot the bill for holding criminal aliens between July 2004 and June 2005 had to wait until June 21, 2007, before they were reimbursed. For example, Los Angeles County, San Bernardino County, and Riverside County waited 2 years to receive their reimbursement--totaling $85.9 million. While they were waiting, public safety offices had to cut back on critical services. This delay is worse when one considers that even when localities receive the federal funds, they are only reimbursed for pennies on every dollar spent. Delays place unreasonable budgetary burdens on States, counties, and municipalities that already shoulder most of the costs of housing criminal aliens. California is not alone. Every other State depends on these funds to perform what is ultimately a federal responsibility--to control illegal immigration and its effects in our communities. These delays affect every State. The Ensure Timely SCARP Reimbursement Act would help ease this burden on States and localities by requiring the Justice Department to disburse funds within 6 months of the application deadline. I ask my colleagues to join me in supporting these much needed amendments to the SCAAP statute. Mr. President, I ask unanimous consent that the text of these two bills be printed in the Record.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, today Senator Hutchison and I are introducing two bills that will significantly alleviate the burden of illegal immigration on State and local governments: the SCAAP Reimbursement Protection Act of 2008 and the Ensure Timely SCAAP Reimbursement Act. We are joined by Senators Boxer, Kyl, Schumer, Cornyn, Durbin, McCain, Bingaman, Craig, Cantwell, Domenici, and Crapo. These bills will amend the State Criminal Alien Assistance Program, SCAAP, statute to ensure that states and localities receive more funding for costs associated with incarcerating criminal aliens, and that these reimbursements are given out in a timely manner. The cost of incarcerating criminal aliens is high. In California alone, the State spent more than $900 million in 2007 to house over 20,000 criminal aliens. Congress enacted SCAAP in 1994 to help reimburse States and localities for the cost of arrest, incarceration, and transportation of these aliens. However, in 2003, the Department of Justice, DOJ, reinterpreted the statute. Now States are only reimbursed for what they spend incarcerating convicted criminal aliens and only when the arrest and conviction occur in the same fiscal year. The DOJ reinterpretation has significantly cut the reimbursement local governments are eligible to receive for incarcerating and processing illegal aliens. This reinterpretation is even more devastating because SCAAP is consistently under-funded. The President has zeroed out SCAAP funding in his budget proposal over the past 6 years. Through bi-partisan support, Congress was only able to partially fund the program. As a result, SCAAP only reimburses States for a fraction of the costs of incarcerating criminal aliens. For example, in fiscal year 2007, SCAAP reimbursed only $109.5 million of the more than $912.5 million spent by the California Department of Corrections that year. That means the State paid $803 million of its own funds to house criminal aliens. This cut has had a domino effect on public safety funding. Every dollar less that SCAAP reimburses States means a dollar less to spend on critical public safety services. For example, after the SCAAP funding cuts in 2003, the Los Angeles County Sheriff's Department implemented an ``early release'' policy for prisoners convicted of misdemeanors. I believe it is the Federal Government's responsibility to control illegal immigration. The funding cuts imposed by this administration have let our local public safety services down, and have made our communities less safe. The SCAAP Reimbursement Protection Act of 2008 would restore the original intent of SCAAP so that States are reimbursed for the costs of incarcerating aliens who are either charged with or convicted of a felony or two misdemeanors. States would also be reimbursed regardless of the fiscal year of the incarceration and conviction. This bill has been endorsed by the National Sheriffs' Associate, California State Association of Counties, CSAC, the U.S./Mexico Border Counties Coalition, the Virginia Sheriffs' Association, the Los Angeles County Sheriff Lee Baca, and the Sheriffs' Association of Texas. Our colleagues on the House Judiciary Committee unanimously passed a companion bill, H.R. 1512, and I urge you to do the same. Another problem with SCAAP is the significant delay in reimbursement. Recently, State and county governments that foot the bill for holding criminal aliens between July 2004 and June 2005 had to wait until June 21, 2007, before they were reimbursed. For example, Los Angeles County, San Bernardino County, and Riverside County waited 2 years to receive their reimbursement--totaling $85.9 million. While they were waiting, public safety offices had to cut back on critical services. This delay is worse when one considers that even when localities receive the federal funds, they are only reimbursed for pennies on every dollar spent. Delays place unreasonable budgetary burdens on States, counties, and municipalities that already shoulder most of the costs of housing criminal aliens. California is not alone. Every other State depends on these funds to perform what is ultimately a federal responsibility--to control illegal immigration and its effects in our communities. These delays affect every State. The Ensure Timely SCARP Reimbursement Act would help ease this burden on States and localities by requiring the Justice Department to disburse funds within 6 months of the application deadline. I ask my colleagues to join me in supporting these much needed amendments to the SCAAP statute. Mr. President, I ask unanimous consent that the text of these two bills be printed in the Record.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, reserving the right to object, if I may, I ask unanimous consent that I be recognized following the remarks of Senator Inhofe.

Mrs. FEINSTEIN. Mr. President, I wish to speak for a short period of time on an amendment that I would like to offer, in the event I am given the opportunity to do so. The Terrorist Surveillance Program began in mid-October of 2001, and it operated until January of 2007. It operated outside of the jurisdiction of the FISA Court during that period of time. That is 5 years and 2 months, when a program operated with no court review or no court approval. Now, I must regretfully say the United States--long before this President and the prior President, but for decades--has had a rather sordid history of misusing foreign intelligence for domestic political purposes. This was well outlined in the Church Committee's report, which led to the development of the Foreign Intelligence Surveillance Act--which is the bill we are talking about--in 1978. If you go back and read the record, you will see that President Carter signed the bill. In his signing statement, as well as the record of the deliberations of the Congress at that time, he tried to overcome this sordid history by making the Foreign Intelligence Surveillance Act--this bill--the exclusive authority for electronic surveillance of Americans for the purpose of foreign intelligence. That was the bottom line, so that never again could foreign intelligence be used politically against American citizens domestically. FISA has continued over the decades, and I think it has served this Nation well. What we have seen develop now is a Presidency and a President who believes very strongly in his executive authority and has tried, through many different ways, to enhance that executive authority. One of those ways has been signing statements--more signing statements by this President, saying what part of the law he would follow and what part he would not follow; the concept of the unitary Executive, which has been espoused, whereby all commissions, even the FCC, would be subject to the will of the Presidency and by his use of article II authority--asserting that authority under the Constitution as supreme to any statute. The battle over FISA going back to 1978--was to give FISA statutory authority that would be supreme in this one particular area. The President strove to do it at the time, and the Congress strove to do it at the time. The Judiciary Committee bill has this strong statement of exclusivity in it, which I will propose in an amendment to this bill. The amendment is cosponsored by the chairmen of both committees, Intelligence and Judiciary, Senators Rockefeller and Leahy; Senator Nelson, who serves on the Intelligence Committee; Senator Whitehouse, who serves on both committees along with myself; Senator Wyden from the Intelligence Committee; Senator Hagel from Intelligence; Senator Menendez; Senator Snowe from the Intelligence Committee; and Senator Specter, the ranking member of the Judiciary Committee. All of us together believe there should be strong exclusivity language that reinforces the intent of the Congress, that the Foreign Intelligence Surveillance Act be the exclusive authority for the wiretapping of Americans for the purpose of foreign intelligence. It makes sense and should be the case. Finally, the administration said in January of last year: OK, we will try to put the program under the FISA Court. In fact, the program today is under the FISA Court through the Protect America Act. So there is a court review and, where warranted, court warrants are granted for the collection of content. That is the way it should be. As we move to this bill, minimization strictures will be spelled out, approved by the court prior, and that is the way it should be. We would like to add to this bill the exclusivity language contained in the Judiciary Committee bill. All of us are in agreement, whether we are Intelligence Committee members or Judiciary Committee members, that FISA should become the exclusive authority, and we should try to reinforce it so that in 2 years, 10 years, or 20 years we will not be right back to where we are today. Let me quickly describe the amendment, and shortly I will try to send a modification of the amendment that is at the desk now, which has some technical corrections in it. Let me describe this amendment briefly. We add language to reinforce the existing FISA exclusivity language in title 18 by making it part of the FISA language, which is codified in title 50. The second provision addresses the so-called AUMF loophole. The administration has also argued that the authorization for the use of military force against al-Qaida implicitly authorized warrantless electronic surveillance. The amendment we would offer states that only an express statutory authorization for electronic surveillance in future legislation shall constitute an additional authority outside of FISA. This makes clear that only a specific future law that provides an exception to FISA can supersede FISA. Only another statute specific can supersede FISA. Third, the amendment makes a similar change to the penalty section of FISA. Currently, FISA says it is a criminal penalty to conduct electronic surveillance, except as authorized by statute. The amendment replaces that general language with a prohibition on any electronic surveillance except as authorized by FISA, by the corresponding parts of title 18 that govern domestic criminal wiretapping, or any future express statutory authorization for surveillance. Finally, the amendment requires more clarity in any certification that the Government provides to a company--in this case, a telecom company--when it requests assistance for surveillance and there is no court order. The FISA law provides only two ways to do electronic surveillance. One of the ways is a court order. That is clear, that is distinct, that is understandable. The second way provides that if assistance is based on statutory authorization, a certification is sent to the company, in writing, requesting assistance and saying that all statutory requirements have been met. Under this amendment, the certification must specify what provision in law provides that authority and that the conditions of that provision have been met. This adds specificity to the certification process which today is called for by the FISA law. I believe this is something that is necessary to have in law. In good conscience, I could not vote for any law that did not make the test case that we need to make, which is our legislative intent that FISA is intended to be the exclusive authority for the collection of electronic surveillance, foreign intelligence involving a U.S. person. It should be subject to FISA law. I don't think any one of us would want to vote to prevent that from happening. I believe this amendment could be adopted given a chance. We have vetted it. It will not interfere with the collection of intelligence. We have vetted it with the Department of Justice and with the intelligence agencies. As I say, it is bipartisan. What I would like to do at this time is call up the amendment. It is No. 3857, and I ask unanimous consent to send a modification to the desk to that amendment.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I know that both chairmen, Senator Leahy of Judiciary and Senator Rockefeller of Intelligence, are coming to the floor to speak on the FISA bill. I wish to take this opportunity, as a member of both those committees, to speak about two amendments I will offer when the time is appropriate. This is in morning business and, therefore, I cannot offer them at this time. The first amendment will deal with a new question, and that question is: court review of telecom immunity. Let me explain what that means. First, this amendment is submitted on behalf of Senators Bill Nelson, Cardin, and myself. Senator Nelson is on the Intelligence Committee. Senator Cardin is on the Judiciary Committee. I have also worked with Senator Whitehouse on this, though I believe he is going in a slightly different direction. As Members know, the bill before us provides full retroactive immunity for electronic service providers--that is the legal language-- that are alleged to have provided assistance as part of the Terrorist Surveillance Program. The amendment I am offering creates a judicial review by putting forth the issue of whether immunity should be granted before the FISA Court. There would be no immunity for any individual, private or public official--that is in the underlying bill--or any other company other than electronic service providers. So the immunity provision in the Intelligence bill only relates to those providers of electronic surveillance--no one else and no other company. I hear talk this would apply to Blackwater. It does not. This is strictly for electronic surveillance. The FISA Court has the most experience with FISA practice and surveillance law. It has an unblemished record for protecting national security secrets. It has 11 judges. They sit 24/7. It has an appellate branch, and it is knowledgeable and skilled in intelligence matters. Under the amendment, there would be a narrowly tailored three-part review. First, the FISA Court would determine whether a telecommunications company provided the assistance alleged in the cases against them. If not, those cases are dismissed. Second, if assistance was provided, the court would determine whether the letter sent by the Government to the telecommunications company met the requirements of 18 USC 2511. That is part of the FISA law. If they did, the companies would be shielded from lawsuits. Let me tell you quickly what that law says. That law, in 2511(2)(a)(ii)(A) and (ii)(B), allows for a certification in writing by a person specified in section 2518(7) of this title--which means the Attorney General, Deputy Attorney General, Associate Attorney General, or by the principal prosecuting attorney of any State or subdivision thereof acting pursuant to a statute of that State who reasonably determines that a series of conditions are met: that an emergency situation exists, immediate danger of death or physical injury to any person, conspiratorial activity threatening the national security interest or conspiratorial activities characteristic of organized crime. All those provisions, in one way or another, did exist. So a certification in writing under section 2511 must be by one of the people I enumerated, or by the Attorney General of the United States, and say that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required. Then there are some provisions setting forth the period of time during which the provision of the information, facilities, technical assistance is authorized, et cetera. That is the law. So the question is: Were the certifications provided adequate under this law that I have read? If they were, the companies would be shielded from lawsuits. The third part is the hardest. In any case where the defendant company did provide assistance but did not have a certification that complied with the sections I have read in 2511, the FISA Court would assess whether the company acted in good faith, as is the standard under common law. The FISA Court would determine whether the company had an objectively reasonable belief that compliance with the Government's written request or directives for assistance were lawful. In the underlying bill, all the cases against the phone companies will be dismissed as long as the Attorney General can tell the court that the Federal Government assured the companies that the assistance it was seeking was legally permitted. That is the way it works in the underlying bill. Under this formulation, there is no court review of whether the assistance was, in fact, legal and adequate under the law or whether the companies had an objectively reasonable belief they were legal. This is a major shortcoming of any legislative or executive grant of immunity. I thought this when I voted for the immunity provision in Intelligence. I had hoped it would be revised in the Judiciary Committee. I hadn't come upon this solution until I discussed it at length with Senator Whitehouse and also with several professors of law and also with a Member of the House of Representatives. Then I thought, I wonder if this is a way to handle the immunity question that is fair and objective and handled by a court that is trained and deals with these matters on a continuing basis. I believe it is. There are many Senators who believe the immunity provision should be taken out wholesale and that the current court case should continue. That is why I have introduced this amendment with Senators Nelson and Cardin, which puts before the Senate a court review option. This amendment would allow phone companies to receive the immunity they are seeking, but only if the independent review by the FISA Court determines whether the assistance that was provided is lawful on its face or the companies had a good-faith, objectively reasonable belief that it was in fact lawful. The arguments run hot and heavy on both sides of the immunity question. They may well prevent the successful passage of a bill by both Houses. Here is some history, though. Shortly after September 11, 2001, the Government reached out to telecommunications companies to request their assistance in what has become known as the terrorist surveillance program. Within 5 weeks of 9/11, letters were sent from senior Government officials to these companies that put a governmental directive by the executive branch, and these letters were sent every 30 to 45 days to the telecoms, from October of 2001 to January of 2007, when the program was, in fact, put under FISA Court orders. Only a very small number of people in these companies had the security clearances to be allowed to read and evaluate these letters or directives. And then even they could only discuss the legal ramifications internally. They could not go out and get other opinions and vet it. That is a fact. We also know that at the time the requests and directives were made, there was an ongoing acute national threat. The administration was warning that more attacks might be imminent, and we now know there was a plot to launch a second wave of attacks against the west coast. In such an environment, I believe, and I think most of us believe, the private sector should help the Government when it is legal to do so. In fact, we should want the private sector to do all it can to help protect our Nation. In addition, there has been a longstanding principle in common law that if the Government asks a private party for help and makes such assurances the help is legal, the person or company should be allowed to provide assistance without fear of being held liable. One would think this should especially be true in the case of protecting our Nation's security. However, this is not a situation that had not been contemplated or prepared for. Congress passed FISA and included language in that statute to address such situations regarding how and when the Federal Government may seek assistance from private companies when conducting electronic surveillance, where there is no court warrant. Those are the sections I have read to you. In fact, the law is very clear on this and under what circumstances a telecommunications company may provide such information and services to the Government, again, as I have indicated. Assistance can always be provided when there is a court warrant. In this case, unfortunately, the administration did not even attempt to get a FISA Court warrant. It essentially dismissed FISA out of hand as a remedy. That is most unfortunate. The question comes, should the telecoms be blamed for that? I think that is something we need to grapple with. The administration could have gone to the FISA Court. It chose under its article II power or its misinterpretation of the AUMF that it would not do that. Is that the responsibility of the telecoms? As I have said, under United States Code, title 18, section 2511, the sections I have read, assistance may be provided without warrant if the Government provides a certification in writing that ``no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required.'' That is the law. With that said, I have read the letters that were sent to the telecom companies every 30 to 45 days for several years requesting assistance and providing legal assurances. No one can say now with legal certainty that the certification requirements of section 2511 were or were not met. I believe this is a question that should be addressed by a Federal court, and I further believe that the Foreign Intelligence Surveillance Court is the court to do it. The administration has had its own view that article II of the Constitution provided the President with the authority to conduct international electronic surveillance outside the law, as long as it complied with the Fourth Amendment. To what extent the phone companies relied on this legal theory I do not know, nor does anyone else at this time, I believe. But the companies have a reasonable argument. They relied on written assurances in which the Attorney General, the top law enforcement officer of the country, said their assistance was lawful. They were not able to do due diligence because of security limitations. We have no way of knowing the full content of their deliberations regarding article II authority of the President, despite testimony they have given to us on the Intelligence and Judiciary Committees. In addition, these companies face serious, potentially extraordinarily costly, litigation and are unable at the present time to defend themselves in court or in public because of the Government's use of the state secrets defense. This places the companies in a fundamentally unfair place. Individuals and groups have made allegations to which the companies cannot answer, nor can they respond to what they believe are misstatements of fact and untruths. I asked the companies, when somebody opposed to their position came to testify before a committee of the other body: Why don't you testify and respond? They said: Because our hands are tied; we cannot. So today we are in a situation that creates a difficult and consequential problem for Congress to address. The way Senator Nelson of Florida and Senator Cardin and I see this is that the question of whether telecommunications companies should receive immunity hinges on whether the letters the Government sent to these companies meet the requirements of 18 U.S.C. 2511. If not, did the companies have a good- faith reason to believe there was a lawful reason to comply? In other words, we should not grant immunity if companies were willingly and knowingly violating the law. I believe the best solution is to allow an independent court, skilled in intelligence matters, to review the applicable law and determine whether the requirements of the law or the common law principle were, in fact, met. If they were, the companies would receive immunity. If not, they would not. I wish to briefly speak on the second amendment which I will broach at the appropriate time, and that is the question of exclusivity. This amendment is cosponsored by both chairmen, Senators Rockefeller and Leahy, Senators Nelson, Whitehouse, Wyden, Hagel, Menendez, and Snowe. I will describe it briefly. We add language to reinforce the existing FISA exclusivity language in Title 18 by making that language part of the FISA bill which is codified in Title 50. The second provision answers the so-called AUMF, the authorization to use military force, resolution loophole. The administration has argued that the authorization of military force against al-Qaida and the Taliban implicitly authorized warrantless electronic surveillance. My amendment states that only an express statutory authorization for electronic surveillance in future legislation shall constitute an additional authority outside of FISA. This makes clear that only specific future law that provides an exception to FISA can supersede FISA. Third, the amendment makes a similar change to the penalty section of FISA. Currently, FISA says it is a criminal penalty to conduct electronic surveillance except as authorized by statute. This amendment replaces the general language with a prohibition on any electronic surveillance except as authorized by FISA by the corresponding parts of title 18 that govern domestic criminal wiretapping or any future express statutory authorization for surveillance. And finally, the amendment requires more clarity in a certification that the Government provides to a telecom company when it requests assistance for surveillance and there is no court order. Remember, on the question of immunity, we have existing law. The law I read earlier is vague and it is subject to interpretation. The question is whether we do the interpretation or whether a proper authority does the interpretation which, of course, is a court of law, namely, in this case, the FISA Court. Currently, certifications must say under 18 U.S.C. 2511 that all statutory requirements for assistance must be met. The telecom official receiving that certification is not given any specifics on what those statutory requirements are, so the company cannot conduct its own legal review. This amendment would require that if the assistance is based on statutory authorization, the certification must specify what provision in law provides that authority and that the conditions of that provision have been met. I believe our amendment will strengthen the exclusivity of FISA, and I believe it is absolutely critical. Without this, we leave the door open for future violations of FISA. When FISA was first enacted in 1978, there was a big debate between the Congress and the executive branch over whether the President was bound by law. We have had a repeat of that debate over the past 2 years since learning of the existence of the terrorist surveillance program. But the end result of the debate in the 1970s was clear. FISA was established as the exclusive means by which the Government may conduct electronic surveillance for foreign intelligence purposes, period. FISA was meant to be exclusive, and section 2511(f) of title 18 of the United States Code states that it is, in fact, the exclusive authority for domestic criminal wiretapping and that ``the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such act, and the interception of domestic wire, oral, and electronic communications may be conducted for foreign intelligence purposes.'' The legislative history is clear--ignored, but clear. In stating that ``FISA would prohibit the President, notwithstanding any inherent powers, from violating the terms of that legislation,'' the 1978 report language was a clear statement of the intent of the Congress at that time, just as this amendment is now. Congress also wrote in 1978 that in terms of authority for conducting surveillance, ``FISA does not simply leave Presidential powers where it finds them. To the contrary. The bill substitutes a clear legislative authorization pursuant to statutory, not constitutional, standards.'' President Carter signed the 1978 bill. His signing statement said this: This bill requires for the first time a prior judicial warrant for all In italics-- all electronic surveillance for foreign intelligence or counterintelligence purposes in the United States in which communications of U.S. persons might be intercepted. So it is crystal clear on its face that FISA was the only legal authority under which the President could proceed when he authorized the ``Terrorist Surveillance Program'' after September 11. He chose not to. And this is where the issue becomes joined, I believe, one day before the highest Court of the land: whether the President's Article II power essentially still supersedes these clear statements of legislative intent and clear drafting of law over many decades. To make matters worse, the administration claimed and still does claim that the resolution to authorize the use of force against al- Qaida and the Taliban provided authority to institute the Terrorist Surveillance Program. It does not. I do not know one Member of Congress who believes they voted for the TSP when they voted to authorize the use of force. It was never contemplated, and I was present at many of those discussions, in private and in public. It was never considered. In fact, FISA allows for 15 days of warrantless surveillance following a declaration of war. So Congress in 1978 had spoken on the issue of wartime authorities, and it did not leave open the possibility of open-ended warrantless surveillance. Then the Department of Justice came to the Congress in September of 2001 with the PATRIOT Act. The legislation included numerous changes needed to FISA to wage this new war, but the administration did not request changes that would allow the TSP, the Terrorist Surveillance Program, to function lawfully. Nor did the administration express the limitations on FISA surveillance that the TSP was created to overcome. In effect, we have a claim from this administration, which has never been recanted, that the President has the authority to conduct surveillance outside of FISA. We are spending enormous time and effort to rewrite FISA, but there is no guarantee that the President will not again authorize some new surveillance program outside the law. That is why those of us who put this amendment together have taken so much time to write strong exclusivity language right into this law. When I have asked the Director of National Intelligence about this, he has said that with the new FISA authorities in this bill, the intelligence community wouldn't need to go outside of FISA. I would like to find comfort in this response, but I don't, and that is why I am offering this exclusivity amendment. The President does not have the right to collect the content of Americans' communications without obeying the governing law, and that law is FISA. I recognize the administration disagrees with me on this point. The White House believes the President's Article II authority allows him to conduct intelligence surveillance regardless of what Congress legislates. I disagree. However, we are not going to resolve that question. As I said, ultimately it is for the Supreme Court to decide. But here now we must make the strongest case that the only authority for electronic surveillance is FISA, and we must again be as clear as possible exactly when FISA authorizes such surveillance. That is our function under article I of the Constitution. Let me say, however, despite the fundamental differences of views over separation of powers, this amendment has been carefully negotiated with officials at the Department of Justice, the Office of the Director of National Intelligence, and the National Security Agency. The executive branch has not raised operational problems or concerns with this language. This exclusivity amendment will not affect ongoing or planned surveillance operations. Of course, I should also say clearly that the executive branch does not support the language. They do not want FISA to be the exclusive authority. But, legislatively, that has been the intention of this Congress since 1978. I have tried to perform my due diligence on this whole terrorist surveillance program and the FISA issue since the news of the warrantless surveillance broke in December of 2005. I have become convinced that without strong exclusivity language such as provided in this amendment, another Congress in the future will be faced with exactly the same thing we are now. I will repeat what I said in December: I cannot support a bill that does not clearly reestablish the primacy of FISA. We took the first step with very modest language in the Intelligence Committee. The Judiciary Committee passed very strong language, but unfortunately it has not been added to the bill before us. Both committee chairmen have cosponsored this amendment, as well as the others I have listed. The Department of Justice and the intelligence community have thoroughly reviewed the amendment. There is no operational impact. I hope we end the question once and for all whether the President can go around the law. At the appropriate time, I will move this amendment, and I hope it will be accepted by this body, as well as the court review of the immunity amendment.

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

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

Mrs. FEINSTEIN. Madam President, I yield the floor, and I suggest the absence of a quorum.