Jon Kyl

Mr. KYL

Mr. KYL. If the Senator will continue to yield, my recollection of the words of Admiral McConnell, Director of National Intelligence, is that--and I ask the leader to verify if I recall this correctly; I think I am recalling it correctly--it doesn't matter whether the Protect America Act expires or does not expire or is simply reauthorized in its exiting form; the reality is, unless a new law is passed that contains the retroactive liability protection feature, it will become or is becoming increasingly difficult for the telecommunications companies to provide the service the U.S. Government needs them to provide to acquire this intelligence. I wish to make sure I am not misstating this, that it is increasingly difficult for these telecommunications companies to provide the service our Government needs to collect this intelligence.

Mr. KYL. I thank the Senator. Madam President, if I could further explain, first of all, I appreciate that the Senator from Vermont has offered an amendment that is very important to his State. It is not germane to the Indian health bill. I also understand how both Senators from New Hampshire are supportive of the LIHEAP approach. Whether it is paid for or not paid for is another question. But the point is, that amendment is not germane to the Indian health bill, and if there is a vote on the LIHEAP amendment, the amendment of the Senator from Vermont, there will be requests, I know, from this side of the aisle and perhaps other requests to consider other nongermane amendments to the bill. I think what the majority leader was saying is something that I subscribe to on this side, which is that the Indian health bill is an important bill to get done. If we begin consideration of a lot of extraneous or nongermane amendments to the Indian health bill, it may well jeopardize our ability to conclude work on the Indian health bill. That is the only reason for the objection, and I hope the Senator can appreciate that.

Mr. KYL. Madam President, will the Senator from Vermont yield?

Mr. KYL. Madam President, I would be happy to respond to the Senator from Vermont but in this way: There are people on my side of the aisle who have already attempted to propound nongermane amendments that they would like to have a time agreement on as well. I suspect that before we begin to get into that kind of a negotiation, the leaders will want to consider what that is going to be doing to the time schedule for the bill, and the managers of bill are going to want to do the same because we would like to try to conclude the bill as soon as we can; and that will open up a process that could delay matters.

Mr. KYL. Madam President, I will respond again to the Senator from Vermont: There are nongermane amendments--at least one of which has already been brought up--that I doubt the leaders and certainly the managers of the bill would like to see embroiled into the Indian health care debate. Once the process begins, it is hard to control it. So it is not as simple as asking, would I be agreeable to a time agreement on perhaps the amendment of the Senator from Vermont and the amendment of the Senator from South Carolina--because that would undoubtedly get brought into this. But there may be others as well. So it is not a question we can answer when one cannot see where the end of it might be. I think that is the concern we have with beginning this kind of process. But I suggest that the Senator from Vermont continue to consult with his leader, with the managers of the bill, and see if we can move the process forward.

Mr. KYL. The following Senators are necessarily absent: the Senator from South Carolina (Mr. Graham) and the Senator from Arizona (Mr. McCain).

Mr. KYL. The following Senators are necessarily absent: the Senator from South Carolina (Mr. Graham) and the Senator from Arizona (Mr. McCain).

Mr. KYL. I thank the leader. Mr. REID addressed the Chair.

Mr. KYL. Mr. President, the first question I have is: Could the intelligence community acquire new targets, if the Protect America Act expires, without going to the FISA Court for some kind of an additional warrant?

Mr. KYL

Mr. KYL. I am delighted to yield to the Senator from Virginia.

Mr. KYL. Madam President, if I could say to the Senator from Virginia, I hadn't thought of putting it quite the way he did. He is, exactly right. We have thousands of young men and women who volunteer to serve their country. What would we think if part of that service means getting sued by somebody? Wouldn't we provide them protection from those kinds of lawsuits? Obviously, we would. The companies that serve us every day when we pick up the phone to make a phone call--we want them to be there to help us--they step forward when the President asks them to volunteer to serve their country, at no profit, as the Senator makes clear, and then they get sued and we are not willing to provide protection to them.

Mr. KYL. Madam President, that is another very good point.

Mr. KYL. Let me conclude these remarks then. The key point I am trying to make is we have related activities. We have the Intelligence Authorization bill on the floor, but we also have a couple of days before this recess to see that the great work the Senate did is adopted by the House of Representatives so the President can sign it. Having just come from the White House, the President asked us to please convey his sense of concern for the people of this country, for the security of those soldiers whom we sent to do a mission, if we can't get good intelligence on this terrorist enemy, and the only way-- the best way we can do that is through the interception of these communications. It cannot be done if there are no telecommunications companies willing to assist us. There could well come a point in time when, because we haven't done our job of providing them liability protection, there is nobody there to provide the help to us. So I thank the Senator from Virginia, and again I get back to my original point, which was I hope that in a few moments, knowing the President is going to veto this piece of legislation, we will support his position and vote no on the authorization conference report. I yield the floor.

Mr. KYL. Mr. President, we are going to be voting in about an hour or so on the conference report on the Intelligence Authorization Act. I would like to explain briefly the reasons I think we should vote against that reauthorization. There are two primary reasons. First has to do with the additional provision that was passed neither by the House nor by the Senate but was dropped into the conference report without Republican involvement; that is, the provision that Senator Feinstein authored that would substitute for the authority that agencies of the United States currently have--agencies such as the Central Intelligence Agency--to interrogate foreign terrorists. It would substitute for the current rules under which they operate the U.S. Army Field Manual. The U.S. Army Field Manual is a document that is prepared for use for all of our military Armed Forces, to provide rules of the road for them in interrogating enemy prisoners of war. So when they capture someone on the battlefield, in order to ensure that the Geneva Conventions are adhered to, there is a set of guidelines set out in the Army Field Manual that very explicitly explain to our soldiers exactly how they need to treat these prisoners and what kind of interrogation in which they can engage. A couple of years ago, when the Congress and the administration got together and revised our procedures and the statute dealing with this subject, the explicit decision was made to not have the Army Field Manual govern the interrogations by other Government agencies. That was a wise decision then, and it is a wise decision now. There are reasons the U.S. Army would want to have a set of rules for soldiers capturing enemies on the battlefield. But there is quite a different situation presented when you have captured a terrorist and you want to interrogate that terrorist and you have at your disposal Central Intelligence Agency trained personnel or other special personnel who are trained in interrogation techniques that comply with the Geneva Conventions accords, are not torture, are authorized by law, but may be outside the particular scope of the Army Field Manual. This is a gross oversimplification, but for people to generally appreciate what I am talking about, you have all seen movies where a prisoner of war is captured, and they say: Give me your name, rank, and serial number, and that is pretty much all an enemy soldier is required to provide. You cannot torture them to get them to tell you anything beyond those three pieces of information, and that is as it should be. Interestingly, our terrorist adversaries know well the Army Field Manual, and if they are captured as enemy POWs on the battle ground by U.S. Army personnel, they know precisely what kind of interrogation to expect. In fact, we know they are trained on how to resist the interrogation techniques and not provide information. It would be a horrible mistake for us to assume that the techniques that are appropriate for Army battlefield capture interrogation should apply as well to situations in which a CIA person is interrogating a terrorist-- someone who is not fighting for another country in a uniform captured on the battlefield. That is the essence of the Feinstein proposal, and it is one of the reasons the President has made it very clear that were this conference report to pass, he will veto the bill; indeed, he should. There are other reasons for the President's decision to veto the bill as well. Let me just mention a couple of them. One of the things that relates to this interrogation matter is a requirement in the bill that a report to Congress must be made of the identity of each and every official who has determined that any interrogation method complies with specific Federal statutes, why the official reached the conclusion, and the related legal advice of the Department of Justice. This may seem benign on the surface but, I submit, is in the nature of harassment of officials who are trying to make decisions about the application of law. They come to judgments. They advise the people who are asking for the advice, and then action is taken on that basis. If Congress needs a report every time a Government official makes a decision, clearly that agency cannot function. Secondly, there are too many opportunities for second guessing, too much of an incentive for the people who are doing the work we ask them to do to not make any decisions, not engage in that work because they might make a mistake. This is exactly the kind of ethos we do not want in our intelligence community. Another requirement of the bill is the creation of another inspector general. We already have inspectors general for each of the elements of the intelligence community, but there would be a new one under the DNI. But his primary responsibility would be to report to Congress rather than the DNI. There are other requirements for reports that have already occupied far too much attention of our intelligence community. There are requirements for congressional confirmation of several new positions, positions that currently do not require congressional confirmation because they are not political offices. It is the head of the NRO, for example, the head of NSA. These are agencies that have been peopled with professionals, people who do not have anything to do with politics. They should not have to come to the Senate and get grilled by Senators--more importantly, Senators who then might hold them up. You have heard about the holds Senators place on nominees. I do not know how many executive nominees and judges we have waiting confirmation by the Senate right now, but there are a lot. What happens is, because Senator X does not like the administration's position on something, they decide to put a hold on an important executive branch nominee. As a result, too many positions are vacant today because of unrelated holds by Senators. It just presents the Senate with an additional way to hold up action on people, in effect, to blackmail an administration into doing what it wants. There are a variety of other problems the President has pointed to in this legislation that will require the President to veto it. But I want to conclude by simply saying that a great deal of credit goes to Senators Rockefeller and Bond for their work in trying to create an authorization bill for the intelligence community against great odds. There is a lot of disagreement among people on the Intelligence Committee itself, as well as others in this body, about what ought to be done, and they came to, in effect, an agreement that except for the Feinstein proposal--that, as I said, was added in the conference; it was not passed by either the Senate or the House--they came to an agreement on a bill that Senator Bond has described as pretty effective. Hopefully, with the President now indicating he will veto the legislation over the provisions I have identified, and some others, the other side will recognize it is important to fix those problems, clean it up, get a bill back to the President he can sign, and we can move forward.

Mr. KYL. The following Sentor is necessarily absent: the Senator from South Carolina (Mr. Graham). Further, if present and voting, the Senator from South Carolina (Mr. Graham) would have voted ``nay.''

Mr. KYL. The following Senator is necessarily absent: the Senator from South Carolina (Mr. Graham).

Mr. KYL

Mr. KYL. The following Senators are necessarily absent: the Senator from South Carolina (Mr. Graham) and the Senator from Texas (Mrs. Hutchison).

Mr. KYL

Mr. KYL. The following Senator is necessarily absent: the Senator from South Carolina (Mr. Graham). Further, if present and voting, the Senator from South Carolina (Mr. Graham) would have voted ``nay.''

Mr. KYL. The following Senators are necessarily absent: the Senator from South Carolina (Mr. Graham) and the Senator from Idaho (Mr. Craig). Further, if present and voting, the Senator from South Carolina (Mr. Graham) would have voted ``nay.''

Mr. KYL. The following Senator is necessarily absent: the Senator from South Carolina (Mr. Graham). Further, if present and voting, the Senator from South Carolina (Mr. Graham) would have voted ``nay.''

Mr. KYL. The following Senator is necessarily absent: the Senator from South Carolina (Mr. Graham). Further, if present and voting, the Senator from South Carolina (Mr. Graham) would have voted ``nay.''

Mr. KYL. The following Senator is necessarily absent: the Senator from South Carolina (Mr. Graham). Further, if present and voting, the Senator from South Carolina (Mr. Graham) would have voted ``yea.''

Mr. KYL. The following Senator is necessarily absent: the Senator from South Carolina (Mr. Graham). Further, if present and voting, the Senator from South Carolina (Mr. Graham) would have voted ``nay.''

Mr. KYL. The following Senator is necessarily absent: the Senator from South Carolina (Mr. Graham). Further, if present and voting, the Senator from South Carolina (Mr. Graham) would have voted ``nay.''

Mr. KYL

Mr. KYL. The following Senator is necessarily absent: the Senator from South Carolina (Mr. Graham). Further, if present and voting, the Senator from South Carolina (Mr. Graham) would have voted ``yea.''