Jon Kyl

Mr. KYL

Mr. KYL. Well, Mr. President, I am sorry the Senator is confused, but let me continue on to make the point the Senator wanted to talk about, which is why we need to read the bill. The bill was just handed to me by staff. I have not yet read it. It is 71 pages. Here it is. It starts out ``Strike all after the first word and insert the following.'' Well, if we are striking all after the first word, then I want to know what we are inserting. Now, the representation from Senators on the other side is that we have added $1 billion in spending on LIHEAP. There is a representation that in the bill there is an increase in the amount of mortgages that can be refinanced, and it was represented that is the same as in the House package. If that is the case, that takes the amount--I believe it is over $700,000. I don't know a lot of low-income Americans who have mortgages of over $700,000 or mortgages up to $700,000. But as I understand it, if that is what the House bill provides for, and if that has been added to this bill, then that is what that provision would be. And the majority leader said there were some other small changes. I am not exactly sure what they are. It may be as simple as Dick and Jane, as the Senator from California said, in which case, as I said, perhaps we can go to it tomorrow. But, again, I don't think that is what the majority leader wants to do because of the commitments he has made to Senators who would have to come back here for a vote on it. What is at work here is not that we are holding up action on the stimulus bill. What is at work here is a desire to move forward with votes on the FISA bill, which we are not on. We all voted to go to the stimulus bill, including all the members of the Democratic majority. If Members of the Democratic majority want to go on the stimulus bill, then let us consider the stimulus bill. If now the request is we just got on this, but now we want to go back to the FISA package, I wonder what it is about collecting intelligence on terrorists that is somehow less important than the stimulus bill so we can have the Senators vote on that but we can't have them vote on the stimulus package. These are both big important issues. I don't want to come down here and engage in this tit for tat. I frankly think the American people are tired of it. They see all this bickering and they wonder why we can't get business done, why we can't get to solving these critical problems. The Senator from California has made an eloquent plea for why we need to get out of Iraq, but we hear language like ``breathtaking irresponsibility'' and ``never worked with a President that didn't have a clue''--meaning this President doesn't have a clue--''about how to end the Iraq war. An earlier speaker said: The President wants to spy in violation of the Constitution. Now, look, you can disagree with the President, but he doesn't want to spy in violation of the Constitution. He wants to collect intelligence on our enemies consistent with the Constitution. We can have legitimate debate and disagreement about whether what we have done is constitutional. Some people might say no; others would say it is constitutional. But I do know this: Six months ago this body overwhelmingly--there may have been only one negative vote, I am not positive of that, but overwhelmingly--in a bipartisan vote we agreed to allow the collection of foreign intelligence under a particular regime for doing that, and it is that method of collection we want to reauthorize and we want to continue. It is not just two Senators who decided to get together to develop a bill. By a bipartisan vote of 13 to 2 the Intelligence Committee agreed on the reauthorization and the method by which we have been collecting intelligence on our enemies for the last 6 months. Now, if we have been doing it for the last 6 months, and the Intelligence Committee by this bipartisan majority said let's keep on doing that, virtually no other changes except in one area dealing with liability protection for the communications companies, then I don't think it is fair to say this has all been done unconstitutionally. That would mean the majority, almost all Democrats, agreed to allow intelligence collection that was unconstitutional. That certainly isn't what my colleagues intended, what I intended, or what anybody else in this body intended. So let us not say the President wants to collect intelligence that is unconstitutional and that is what we have been doing under a Senate and House-passed bill for the last 6 months. That is the kind of irresponsible debate the American people, quite frankly, are tired of. The basic question that is before us tonight is, Shall we pass a bill that the majority leader has laid down dealing with stimulating the economy? We all just voted--virtually all of us voted--to take up the stimulus bill. We had hoped we would actually have this 3 or 4 days ago, but now we have it, and the majority leader has the absolute right to substitute what he wants us to consider, and he has done that. This is his proposal. And we have received some assurances as to what is and what isn't in it. I think we trust, but we also want to verify. As I said, it is 71 pages, but it shouldn't take that long for us to figure out whether there are other things in here other than what has been represented to us. If in fact it turns out that is the case, that all we have done is add another $1 billion in spending on the LIHEAP program, we have increased the amount of mortgages that can be refinanced up to 700 some thousand dollars--I think that is the number; I will read it here to make sure--and then some other minor changes, whatever those are, then, again, I would be perfectly happy to take up this bill tomorrow. If I wanted to score cheap political points, I would do the same thing some on the other side have talked about, which is to say: All right, I ask unanimous consent that we take this up and vote on it. But I know there are people out campaigning. I know the majority leader has given them assurances they wouldn't have to come back for a vote on it. I respect that. It is a perfectly reasonable request. We can be taking the time now not just to ensure what is in the bill but to debate the bill, so that when we do vote on it, presumably the next day, we would have had our complete debate. It is not a waste of the American people's time for the Senate to take 1 day to debate a bill this important. We don't have to be disagreeable about this. We can assure ourselves of what is in it and we can take tomorrow to debate it. A lot of the candidates are gone--presumably we don't want to ask them to come back to vote on it--so then we can vote on it the following day, and then take up the FISA bill, which is equally important, if not more important in terms of foreign intelligence collection. We have, what, another week or 10 days to complete work on that, with plenty of time to do it. I think we should take a step back, not play political games here with the dueling unanimous consent requests to do something that does nothing but embarrass the other side. Let us get to the business of the American people, let us get a stimulus package voted on, let us then turn to the FISA bill and get the amendments voted on and pass that to the President before we take the work period off that we will be taking off in, what, 12 days or so.

Mr. KYL. Mr. President, the answer to the question, which is, Why don't we go to the stimulus bill; Why do we need 30 hours to read it, is, as I said, I would be happy to propound a unanimous consent request right now that we go to the stimulus bill and vote on it tomorrow. I will not do that because I know what the majority leader would say, which is, no, I will object to going to a vote on the stimulus bill tomorrow because I have told our Senate colleagues who are running for President and some others who are campaigning for them that we are not going to vote on it tomorrow. We are not going to have a vote on that, which they would miss, because it is too important. That is what he said a moment ago. I said I would come back to the point of reading the bill, and I do want to get back to that because I do think we should read bills before we vote on them. But the key point here is that Republicans are not holding up action on this stimulus package. And for anybody on the Senate floor to suggest that we are, it is simply not the case. We voted overwhelmingly to grant cloture so we could take up the bill. I think all of the Democratic Senators voted to take up the bill. So we are on the bill. We are on the stimulus bill. But we can't vote on it because there has been a commitment to Senators who are running for the Presidency and some others that we won't vote on it tomorrow. Now, we didn't make that commitment. That commitment, I understand, was made by the distinguished majority leader. That is why I am not going to ask unanimous consent to try to embarrass people on the other side. Let me get to the matter of reading the bill.

Mr. KYL. I am very sorry. I apologize.

Mr. KYL. Since we have had this discussion, let me take no more than 4 minutes. I will join the Senator in the pride he has for the Giants and their wonderful victory in my home State of Arizona yesterday. I hope a good time was had by all, including those who had their string broken. I do wish to respond because there have been a couple suggestions made I think that are inaccurate. We are not going to come in tomorrow and have the prayer by the Chaplain and do nothing. I hope that debate on the stimulus package is not perceived by people as doing nothing. All of us, almost all of us I think, everybody on the Democratic side voted to take up the stimulus bill. That is what we voted on an hour ago. We voted to take up the stimulus bill. Now we are on the stimulus bill. I have not had a chance to speak on it yet. I would like to do that. Tomorrow is my opportunity. The majority leader is the one who said there would be no votes on the stimulus package tomorrow, not the Senator from Kentucky, the minority leader. So the fact that we are not voting on the stimulus bill tomorrow has nothing to do with Republican delay. It is a commitment made by the majority leader. I have no problem with the commitment. There are people out campaigning. But that was the majority leader's decision not to vote on the stimulus bill tomorrow. As I said, we voted for cloture for the House bill. I am happy to vote on the House bill. I do not know whether my other colleagues are going to be done debating this in 1 day tomorrow. But I do know this, we have gone to the stimulus package. We are going to be on it tomorrow. That is what we all agreed to do. Now the assistant leader comes down and asks unanimous consent to go off the bill we voted to go on and to start voting tomorrow on some FISA amendments, some amendments to the FISA bill. He said: What a waste it would be. Now, as everyone in this body knows, we did not vote last Wednesday, last Thursday, last Friday, not because Republican's were not ready to vote, there was no agreement on how to proceed to a FISA bill. We have now reached that agreement. That agreement is in place. The minute we finish this stimulus package, we will move to the FISA bill. We can get that done within the next 10 days. There is no question about that. So I do not know why this constant attempt to try to put people on record, as the distinguished assistant leader said, and then to talk about 64 filibusters by Republicans. The majority leader set a record last year in the number of cloture votes that were required in order for us to do business. When the majority leader brings up a bill and then precludes any other amendments and files cloture, we have no choice but to vote on that cloture motion. If we vote against it, it is called a filibuster. That is not a filibuster. But by the reckoning of the other side, I gather that is how they count up the number of filibusters. Every time we vote against a cloture vote, the majority leader has required--and there is no opportunity for Republican amendments--many of those times Republicans are going to say: No, we want a chance to offer some amendments. That is not a filibuster. Yet that is the kind of accusation that has been made here. I want to get back to the point that surely we can have a constructive debate without constantly trying to cut each other off at the knees; that the Republican minority has taken this to an extreme, that they are not sensitive to the challenges the people face, that the Republican position is to do nothing tomorrow. Well, we are all going to debate the stimulus package tomorrow because we all voted to debate the stimulus package tomorrow. That is not doing nothing. I ask my colleagues again: Let's quit this business of trying to put the other side into an embarrassing position to object to something or complain that we want to do nothing or we do not care about people or that the President wants to violate the Constitution. This is the kind of thing the American people are sick of. We voted to take up the stimulus package. Let's take it up. We will have time to read it. If it is as simple as the other side says, that is great. It is 71 pages long. But if it is pretty simple, then presumably the debate will not take all that long. Then we can turn to the FISA bill, on which we have reached an agreement. I hope my colleagues, in moving forward, will consider the interests of the American people first and stop this bickering to try to put each other into embarrassing positions so we gain a little bit of a political advantage. Mr. President, I am very happy now to join my colleague from New Jersey in a bipartisan exercise; that is, to congratulate the New York Giants on their victory. I am happy to yield the floor to him at this time.

Mr. KYL. It would, indeed. The majority leader would like to comment.

Mr. KYL. Mr. President, for the reasons I expressed with the majority leader a moment ago in our colloquy, I must object at this time.

Mr. KYL. I know the Senator from New Jersey wants to speak, but since some of this was directed to my comments on the unanimous consent request, I think I should take a couple of minutes to respond.

Mr. KYL. The following Senators are necessarily absent: the Senator from Georgia (Mr. Chambliss), the Senator from South Carolina (Mr. DeMint), the Senator from New Mexico (Mr. Domenici), the Senator from South Carolina (Mr. Graham), the Senator from New Hampshire (Mr. Gregg), the Senator from Arizona (Mr. McCain), the Senator from Louisiana (Mr. Vitter), and the Senator from Mississippi (Mr. Wicker).

Mr. KYL. And there are some additional changes from the Finance Committee version as well; is that not true?

Mr. KYL. If I can respond, obviously, the majority leader knows I can't make that agreement here on the floor, but I will pass that on to the minority leader and consult with our colleagues and see what can be agreed to in terms of an agreement. I think the majority leader is exactly correct. As a matter of courtesy to Members on both sides, it is probably not the best idea to have votes tomorrow. It is an historic day in American history.

Mr. KYL. I do have a question. This is why I was trying to get the attention of the minority leader just a moment ago. I am on the Finance Committee, and I am very familiar with the Finance Committee bill. Now, I am certain the majority leader did not mean to suggest that the proposal we were just handed is, in fact, a bill that passed the Finance Committee. It is more than that, is it not?

Mr. KYL. Mr. President, obviously, our colleagues are not here. I would not object to that kind of agreement. I don't know what others would do. To be fair, did I represent the distinguished majority leader correctly, that you had assured Senators they would not be voting on the stimulus package tomorrow?

Mr. KYL

Mr. KYL. The following Senators are necessarily absent: the Senator from Oklahoma (Mr. Coburn), the Senator from North Carolina (Mrs. Dole), the Senator from Nevada (Mr. Ensign), and the Senator from Arizona (Mr. McCain). Further, if present and voting, the Senator from North Carolina (Mrs. Dole) would have voted ``nay.''

Mr. KYL. The following Senators are necessarily absent: the Senator from Oklahoma (Mr. Coburn), the Senator from North Carolina (Mrs. Dole), the Senator from Nevada (Mr. Ensign), and the Senator from Arizona (Mr. McCain). Further, if present and voting, the Senator from North Carolina (Mrs. Dole) would have voted ``yea.''

Mr. KYL

Mr. KYL. Mr. President, might I inquire of the Senator from Wisconsin a question. As I read the amendment, it is silent with respect to the ability of the administration to--or the appropriate authorities to redact material in the interests of protecting their sources and methods. Is it assumed in the amendment that the authority to redact would exist?

Mr. KYL. I thought I had heard the Senator indicate that redaction would be permitted, and that is the intent of the amendment; is that correct?

Mr. KYL. I have no objection to that.

Mr. KYL. Absolutely no objection to that.

Mr. KYL. Mr. President, as propounded, I object to the request, but I have no objection to Members each asking consent to which there would be no objection and certainly not to their speaking for whatever length of time or whatever order the leader would desire.

Mr. KYL. Mr. President, I suggest the absence of a quorum.

Mr. KYL. I didn't hear the last half.

Mr. KYL. For the reasons Senator Bond explained earlier, I object.

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

Mr. KYL

Mr. KYL. Mr. President, on January 21, the Nation recognized the birthday of the Rev. Dr. Martin Luther King, Jr. It is important that we honor this day and that we do not let the significance of Dr. King fade from our memories, as individuals and as a nation. I am pleased that citizens in my State of Arizona have found ways to honor Dr. King and ensure that the lessons of his legacy continue to resound among future generations. This past weekend the Senate Chaplain, Dr. Black, joined me in Phoenix for a number of events relating the King commemoration. Dr. Black preached two sermons and later delivered the keynote address at the Dr. Martin Luther King, Jr. Youth Scholarship service, a candlelight ceremony at Pilgrim Rest Baptist Church. It is very fitting that these events took place in churches. Dr. King, after all, was a minister, and his speeches and writings invoked biblical themes and were delivered with the zeal of a fiery evangelist. Moreover, by recognizing Dr. King in a place of worship, we are reminded of the important role that religion plays in the public square. Indeed, the events like those I attended in Phoenix highlight the importance that religious institutions play in civic life, and I believe they embody an important past of Dr. King's legacy. Alexis de Tocqueville observed long ago that ``Freedom sees religion as the companion of its struggles and triumphs, the cradle of its infancy, and the divine source of its rights. Religion is considered as the guardian of mores, and mores are regarded as the guarantee of the laws and pledge for the maintenance of freedom itself.'' Religion is an essential underpinning to a well-ordered society and a functioning democratic republic. The Founders of our country understood that, and Dr. King did too. In his famous ``I have a dream'' speech, Dr. King invoked the words of the Declaration of Independence. On August 28, 1963, he told the throngs who had gathered on The Mall, ``I have a dream that one day this Nation will rise up and live out the true meaning of its creed: `We hold these truths to be self-evident: that all men are created equal.''' King believed, as the Founders wrote in the Declaration, that we are created equal and endowed with the right to life and liberty by our Creator. King's speech could have very well been delivered to a congregation at a church instead of before thousands at the Lincoln Memorial. In his message at the King celebration in Phoenix, Dr. Black urged the congregation to remember some will seek to destroy the dream and dreamer, but God will frustrate their plans. These words echo what King said at the Lincoln Memorial almost 40 years ago, ``With this faith, we will be able to work together, to pray together, to struggle together, to go to jail together, to stand up for freedom together, knowing that we will be free one day.'' Mr. President, it is imperative that we as Americans understand the bond between religion and freedom, and I was pleased to attend the King celebration services this past weekend that testified to this bond.

Mr. KYL

Mr. KYL. Mr. President, I also wish to pick up on what our Republican leader has just been talking about: that we can, with bipartisanship, accomplish a great deal in this Senate and that there is no better place to start than on the Foreign Intelligence Surveillance Act. In the Senate, we refer to that by its acronym, FISA, but it needs to be our first important piece of business. Certainly, our intelligence community, to whom we have given a very big responsibility, needs certainty with respect to its responsibilities and its rights. It needs permanency, not just 1-month extensions. This intelligence community must know the rules of the road. That is why it is so important for us to, within the next week or so, reauthorize the Foreign Intelligence Surveillance Act with a few additional changes to ensure that we can, in fact, collect this intelligence on our enemies. Theodore Roosevelt once referred to his opportunities in life and said the greatest opportunity was work worth doing. And there is no more work worth doing than ensuring that we can gain the intelligence on the enemy that attacked us in this war. We are at war, both at home and abroad. These radical militant Islamists have attacked us, and they continue to threaten us. We all know that the best approach to defeating them is good intelligence and that most of that intelligence, by necessity, is collected overseas-- that is why it is called foreign intelligence--and that the basis for the collection of much of this intelligence is the FISA law, or the Foreign Intelligence Surveillance Act. As noted, that act expires next week, and that is why it is important for the Senate to act now and the reason this reauthorization is actually very simple and straightforward and very interesting. Technology has actually outpaced the law. What we found is that we are now able to collect intelligence in ways that were never understood when the FISA law was first written nearly 30 years ago. As a result, we need to change that law to accommodate the intelligence collection capabilities we have today. Before we changed the law last year, U.S. intelligence agencies had lost about two-thirds of their ability to collect communications intelligence against al-Qaida. Obviously, in this war, we cannot cede two-thirds of the battlefield to our enemy, to the terrorists. When we enacted the Protect America Act last summer, we regained that capability to collect communications intelligence against al-Qaida by conforming the legal procedures to the technology that is available to us. Let there be no doubt that the collection of this information, as a result of that work, is critical to our Nation's security. In fact, in a New York Times op-ed on December 10, Michael McConnell, the Director of National Intelligence, noted that ``[i]nformation obtained under this law has helped us develop a greater understanding of international Qaeda networks, and the law has allowed us to obtain significant insight into terrorist planning.'' Similarly, on October 31 of this year, Kenneth Wainstein, the Assistant Attorney General in charge of the Justice Department's National Security Division, testified before the Judiciary Committee that ``since the passage of the [Protect America] Act, the Intelligence Community has collected critical intelligence important to preventing terrorist actions and enhancing our national security.'' This is important business. It is work worth doing. The Intelligence Committee, in a very bipartisan way, crafted an extension of the foreign Intelligence Committee legislation. The Judiciary Committee, on which I sit, took a much more partisan approach. The Judiciary Committee bill has a lot of flaws that the Intelligence Committee bill does not have. Let me mention a couple of those flaws, suggesting to my colleagues that the bill we should start with as our base bill is the Intelligence Committee bill, not the bill that came out of Judiciary Committee. One of the things the Judiciary Committee bill does is it includes an ``exclusive means'' provision that would undermine intelligence gathering directed at foreign terrorist organizations. The provision not only uses vague terms whose mention is unclear, it also appears to preclude use of other intelligence-gathering tools that have already proven to be valuable sources of intelligence about al-Qaida. As the official Statement of Administration Policy for this bill notes: The exclusivity provision in the Judiciary Committee substitute ignores FISA's complexity and its interrelationship with other federal laws and, as a result, could operate to preclude the Intelligence Community from using current tools and authorities, or preclude Congress from acting quickly to give the Intelligence Community the tools it may need in the aftermath of a terrorist attack in the United States or in response to a grave threat to the national security. Another serious flaw of the Judiciary Committee bill is it has a provision that would limit FISA overseas intelligence gathering--to quote the legislation itself-- . . . to communications to which at least one party is a specific individual target who is reasonably believed to be outside the United States. The problem, of course, is it is not always possible to identify such a specific individual in our intelligence collection. And finally let me respond generally to those who would dismiss or ignore the harm done to our national security by applying layer after layer of bureaucratic hurdles to foreign intelligence investigations. These restrictions, for example, that the Judiciary bill would impose, matter in our agents' ability to collect this intelligence. We know they can undermine critical investigations because we have seen it happen in the past, and let me cite an example that makes this point. In the 1990s, the Justice Department determined--well, first of all, it imposed this infamous wall that segregated foreign intelligence and criminal investigations. It determined it was necessary to do this to protect constitutional rights, but it went well beyond what the FISA law itself required. These rules were created by individuals, and they prevented criminal and intelligence agents who were chasing after the same suspects from cooperating with each other, even sharing information with each other and with the other agents. So the FBI and the CIA had a very difficult time talking to each other. This was part of the criticism of the 9/11 Commission after that horrible event. Well, a few years after this wall was built, in the summer of 2001-- note the date, summer 2001--an FBI agent in the Bureau's New York field office became aware that Khalid al-Mihdhar, Nawaf al-Hazmi, and two other bin Laden-related individuals were present in the United States. They were here. This agent knew these men had been at an important al- Qaida meeting in Kuala Lumpur, Malaysia, and instinctively understood they were dangerous. The agent initiated a search for these men and sought the help of criminal investigators who have much greater access to resources for finding people in the United States. This search was probably the best chance the United States had of disrupting or potentially stopping the September 11 attacks. This FBI agent was literally on the trail of the 9/11 hijackers in the summer of 2001. But what happened when the agent sought to enlist the help of criminal investigators and the full resources of the FBI? Well, the agent ran into this legal wall separating criminal and intelligence investigations, and he was repeatedly told criminal investigators could not aid in the investigation. Finally, after being repeatedly rebuffed in requests for assistance in searching for Khalid al-Mihdhar and the other hijackers, the agent sent the following, disturbingly prophetic, e-mail to FBI headquarters in August 2001. August 2001. Whatever has happened to this, someday someone will die and, wall or not, the public will not understand why we were not more effective in throwing every resource we had at certain problems. Well, the officials who created the intelligence investigation wall in the 1990s, and who thereby undercut the search for al-Mihdhar and the other hijackers, at least had one excuse. In the summer of 2001, few people appreciated the threat the Nation faced from al-Qaida. Few realized how devastating an al-Qaida terrorist attack could be and how many innocent people could be killed. Today we have no such excuses. We have already suffered one horrific al-Qaida attack, and we know much worse attacks are possible. We now know what is at stake. Yet despite this knowledge, some in this body are proposing we repeat the mistakes of the past; that we create new walls and other arbitrary legal procedures to the surveillance of al- Qaida. We know from hard experience terrorist plots are hard to detect, and we don't get many chances to stop them. We know what a terrible loss of life a terrorist attack can inflict. We know if another terrorist attack occurs, there will be multiple reviews and investigations that will identify what went wrong, what opportunities were missed, and who was responsible. Members who are thinking about supporting the Judiciary Committee bill should think hard about the consequences of enacting a set of arbitrary limits on the surveillance of al-Qaida. If that substitute is enacted, it is likely to undermine future critical intelligence investigations, just as the wall between intelligence and criminal investigations undermined the search for the 9/11 hijackers. Future investigations will uncover exactly what went wrong, and we will be held accountable for our actions. I urge my colleagues to reject the Judiciary Committee substitute and vote to ensure our intelligence agents have the tools they need to confront the threat posed by al-Qaida and other foreign terrorist organizations.