Jon Kyl

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.

Mr. KYL

Mr. KYL. Mr. President, I wish to mention and thank specifically our Chaplain, ADM Barry Black, for coming to Arizona this past weekend to join in celebrations relating to the Martin Luther King activities that occurred. After preaching three sermons and attending a couple other major events associated with Martin Luther King celebrations, Chaplain Black was right back here to open our session today. He certainly deserves our thanks and has my gratitude for joining us in Arizona.

Mr. KYL

Mr. KYL. Mr. President, first, I join those who welcomed our new colleague, Roger Wicker from Mississippi, to the Senate. I know he will serve his State and this Nation with distinction.

Mr. KYL

Mr. KYL. Mr. President, I rise today to comment on section 691 of the Consolidated Appropriations Act, 2008. This provision amends section 212(d)(3)(B) of the Immigration and Nationality Act in order to allow the executive to make REAL ID immigration bars inapplicable to individuals or groups whose presence in this country would not pose a threat to the United States, while continuing to bar from the United States all persons who are tied to the worst terrorist organizations. The provision also gives automatic exemptions to the Hmong and Montagnard soldiers who fought alongside the United States during the Vietnam war, providing overdue relief to the members of these armies. And section 691 also designates the Taliban as a Tier I terrorist organization for immigration purposes, effectively eliminating exceptions to the applicability of REAL ID immigration bars for members, combatants, and others tied to the group that harbored Al Qaeda at the time when that organization was plotting the terrorist attacks of September 11, 2001. Section 691 is the result of a negotiated compromise between Senator Leahy and me a compromise that was encouraged and assisted by Senator Coleman and other Members who have taken an interest in this issue. The final language allows the Secretaries of Homeland Security and State to decide that the barriers to entry and stay in the United States in section 212(a)(3)(B) of the INA do not apply to certain individuals or groups. The language also clarifies that such non-applicability determinations are not subject to judicial review. Under current law, the REAL ID immigration bars can only be deemed non-applicable to an alien if the alien is a representative of a political or social group that endorses terrorism, has himself endorsed terrorism, or has given material support to a terrorist group, and may only be extended to a group if that group is a Tier III group that only has a subgroup that engages in terrorism. The amendment expands the non-applicability determination authority to all terrorism-related bars, except that the bars cannot be deemed non-applicable if an alien is expected to engage in future terrorism, is a member or representative of a Tier I or II group, voluntarily and knowingly engaged in terrorist activity or endorsed terrorism on behalf of a Tier I or II group, or has voluntarily and knowingly received military-type training from a Tier I or II group. Also, no group nonapplicability determination may be applied to a group that attacks democratic countries or intentionally engages in a practice of attacking civilians. Section 691's expansion of section 212(d)(3)(B) nonapplicability authority generally draws a line between Tier I and II terrorist organizations, on the one hand--groups which have been designated as Foreign Terrorist Organizations by the State Department or other agency of the Federal Government--and Tier III organizations, on the other hand, which are swept into the definition of ``terrorist organization'' as a result of their conduct. The State Department's FTO list includes some of the most bloodthirsty terrorist organizations on the planet. The list includes groups such as al-Qaida, Hamas, Hezbollah, and the Salafist Group for Call and Combat. By precluding non-applicability determinations with regard to persons tied to these groups, section 691 not only helps to protect the U.S. homeland from terrorism--it also contributes to making these groups radioactive in the foreign countries where they are based. Joining or helping one of these groups or accepting military training from them will bar an individual from ever being allowed to enter or reside in the United States, in all cases and without exception. And making these groups radioactive makes it more difficult for them to recruit members or to carry out terrorist attacks. Information that has been developed in hearings before the Senate Judiciary Committee explains why it is imperative that the United States discourage individuals from providing any type of aid or material support to foreign terrorist organizations. In an April 20, 2005, hearing before the Terrorism Subcommittee, for example, Barry Sabin, the Chief of the Counterterrorism Section of the Justice Department's Criminal Division, explained how the provision of material aid to terrorist groups is critical to the functioning of these organizations. Mr. Sabin noted: We know from experience that terrorists need funding and logistical support to operate. They need to raise funds, open and use bank accounts to transfer money, and to communicate by phone and the Internet. They need travel documents. They need to train and recruit new operatives, and procure equipment for their attacks. It is also important to emphasize that all provision of material support to terrorist organizations is bad. There is no such thing as ``good'' aid to a terrorist organization, because all aid is fungible and can be converted to evil purposes, and because even humanitarian aid can be used by a terrorist organization to help it to recruit new members. These points were developed in detail in answers to written questions provided by Chris Wray, the Assistant Attorney General for the Criminal Division, following a May 5, 2004, hearing before the Judiciary Committee. Mr. Wray explained why there is no such thing as benign material support to a designated foreign terrorist organization: First, because material support of any kind is fungible and frees up resources that may then be used to promote violence, the provision of any material support facilitates and furthers the organization's unlawful and violent activities regardless of the benign intent of the donor. As the Ninth Circuit recognized in rejecting the argument that 18 U.S.C. section 2339B is unconstitutional because it proscribes the giving of material support even if the donor does not have the specific intent to aid in the organization's unlawful purposes, ``Material support given to a terrorist organization can be used to promote the organization's unlawful activities, regardless of donor intent. Once the support is given, the donor has no control over how it is used. Humanitarian Law Project v. Reno, 205 F. 3d 1130, 1134 (2000). Even support designed and intended to encourage a group to pursue lawful, nonviolent means to achieve its ends may be used to further the organization's violent aims. [S]ome terrorist organizations use their humanitarian activities as an integral part of an overall program that includes murdering innocent civilians and assassinating government officials. For example, one expert on terrorist organizations, Matthew Levitt, describes in ``Hamas from Cradle to Grave,'' Middle East Quarterly, Winter 2004, at 3- 15, that this foreign terrorist organization is one unified body, and that its social welfare organizations, supported by numerous charities, answer to the same leaders who set Hamas political and terrorist policy. Levitt describes how Hamas charity committees, mosque classes, student unions, and sport clubs serve as places where Hamas activists recruit Palestinian youth for terrorist training courses in Syria and Iran, or for suicidal terrorist attacks. And, he discusses how a single soccer team from the Jihad mosque in Hebron has produced several Hamas terrorists responsible for five suicide bombings in 2003. Even more frightening, Levitt explains how Hamas charities, social service organizations, hospitals, schools, and mosques openly laud suicide bombings. Hamas-run schools and summer camps begin indoctrinating children as early as kindergarten for later use as suicide bombers. As Levitt notes, Palestinian children raised in this environment make willing terrorist recruits. This program is accomplished in significant part by the multi-faceted nature of Hamas, which gains strength through its humanitarian and charitable activities in the community. Thus, even if individuals are providing material support, such as money, for groups like the Hamas, and are somehow able to ensure that this money is spent by these FTOs only for humanitarian activities, such as a school, the problem remains that this money enables these groups to gain more general support, loyalty, and popularity among the local people and to earn a measure of legitimacy. This support and legitimacy then allows groups such as Hamas to recruit suicide bombers, as well as accomplices to provide critical services such as transportation, lodging, and local intelligence for terrorist operations. Accordingly, even those who are providing material support with the sincere hope and assurance that their money is not being used directly for terrorism are nevertheless providing groups such as Hamas with the type of overall support they need in order to operate successfully as terrorists. Section 691 of the Consolidated Appropriations Act also bars the extension of a non-applicability determination to any alien who has voluntarily and knowingly received military-type training from a Tier I or II terrorist organization. Again in his April 20, 2005, testimony before the Terrorism Subcommittee, Counterterrorism Section Chief Barry Sabin explained why individuals who have received such training are dangerous to the United States and why an individual's participation in such training benefits the terrorist organization. Mr. Sabin explained: Various investigations have uncovered individuals who have traveled overseas to training camps to receive military-style training. These individuals, who in many cases have received firearms and explosives training, appear to be preparing to conduct terrorist activity or violence and pose a clear threat here and abroad. Investigations have also disclosed that attendees sometimes maintain longstanding relationships with other training camp ``alumni,'' who may later seek to recruit and utilize them in their plots. In an even more basic way, a trainee's participation in a terrorist organization's training camp, without more, benefits the organization as a whole. By attending a camp, an individual lends critical moral support to other trainees and the entire organization, a support that is essential to the health and vitality of the organization. Section 691 also clarifies that the decision to extend or to not extend a non-applicability determination to a particular group or individual is not subject to judicial review. A decision as to whether a particular individual or group that would otherwise be within the scope of a section 212(a)(3)(B) bar should instead be deemed outside the scope of that bar is a decision that is inherently executive in nature. Such a decision will often involve consideration of classified information that would be compromised if litigated in open court, and it will involve sensitive judgments about which terrorist groups are more dangerous than others. Vesting this discretion solely in the executive allows executive officers to consider the full range of information about a particular group that is available to the State Department, the Justice Department, Homeland Security, and to intelligence agencies. It allows the executive to decide that some groups are less dangerous and therefore the REAL ID bars may be deemed to not apply to activities tied to that group, and that other groups are extremely dangerous and that even tenuous connections to such a group should serve as grounds for exclusion, with no exceptions allowed. Were decisions about nonapplicability to be made in the courts, their precedent-based system of decisionmaking would require the courts to extend the same ``rights'' to members of one group as had extended to the last group whose case was reviewed. What is sufficient to justify a nonapplicability determination with regard to the FARC in Columbia, for example, would also be good for al-Qaida. By keeping these non- applicability decisions out of the courts, section 691's amendments to INA section 212(d)(3)(B) allow the Government to take the common-sense approach of treating different groups differently based on how violent they are and how much of a threat they pose to the United States. For that reason, section 691 does not allow judicial relief from an executive determination. Rather, it is the executive alone that will decide whether a bar should be inapplicable-- that it should not even apply to the alien in the first instance. Subsection (b) of section 691 statutorily exempts several groups from the definition of ``terrorist organization'' for purposes of INA section 212(a)(3)(B). These groups--which include Hmong and Montagnard groups that fought alongside the United States in the Vietnam War--have already been cleared by the administration and do not pose a threat to the United States. This subsection will immediately resolve any legal ambiguity as to these groups' status. Subsection (c) of section 691 corrects a technical error in the original REAL ID Act. With this change, the otherwise-automatically- deportable spouse or child of a barred alien is not barred if the spouse or child did not know of the husband/father's terrorist activity or has renounced that activity. Subsection (d) designates the Taliban as a Tier I terrorist organization for immigration purposes. As a result of the distinctions drawn in subsection (a) of section 691, this designation will render individuals tied to the Taliban ineligible for most waiver authority. Subsection (e) requires a report by the Department of Homeland Security on the use of its authority to waive material-support bars on grounds of duress. Subsection (f) makes all of these changes apply retroactively. I think that section 691 reaches a reasonable compromise that allows removal of the applicability of the REAL ID immigration bars for groups and individuals to whom those bars should not apply, but allows REAL ID to continue to protect the United States and its citizens from foreign terrorist organizations. I would like to thank Tim Rieser of Senator Leahy's staff, and Jennifer Daskal, on detail to Senator Leahy, for working with my staff to draft this section. Whom to exclude from the United States for terrorism-related reasons is a difficult and very serious matter, and one that I am glad has been the subject of a carefully developed bipartisan compromise in this bill.

Mr. KYL

Mr. KYL. Mr. President, I would like my colleagues to be aware of an important letter signed by 45 State attorneys general expressing ``grave concerns'' about Representative Barney Frank's Internet Gambling Regulation and Enforcement Act, H.R. 2046. The State attorneys general note that the recently enacted Unlawful Internet Gambling Enforcement Act of 2006 has ``effectively driven many illicit gambling operators from the American marketplace.'' The Frank bill ``proposes to do the opposite, by replacing state regulations with a federal licensing program that would permit Internet gambling companies to do business with U.S. customers.'' The letter continues: A federal license would supersede any state enforcement action, because Sec. 5387 in H.R. 2046 would grant an affirmative defense against any prosecution or enforcement action under any Federal or State law to any person who possesses a valid license and complies with the requirements of H.R. 2046. This divestment of state gambling enforcement power is sweeping and unprecedented. One final but very important point from the letter is the impact of the so-called ``opt-out'' provisions. Specifically, the letter reads: [T]he opt-outs may prove illusory. They will likely be challenged before the World Trade Organization. The World Trade Organization has already shown itself to be hostile to U.S. restrictions on Internet gambling. If it strikes down state opt-outs as unduly restrictive of trade, the way will be open to the greatest expansion of legalized gambling in American history and near total preemption of State laws restricting Internet gambling. The Frank bill is unacceptable to the State attorneys general and it ought to be unacceptable to Members of Congress as well. I urge my colleagues to oppose the Frank bill or any similar proposals that would create a permissive Federal licensing scheme for Internet gambling. I ask unanimous consent to have printed in the Record the letter from the National Association of Attorneys General.

Mr. KYL

Mr. KYL. Mr. President, on behalf of several Republican Senators, I object. I would also note that I believe there may be one other unanimous- consent request, and I would be happy to suspend while that is made and then conclude my remarks in 3 minutes. I think the Senator from Rhode Island would like to speak, or I can go ahead and conclude, and then the Senator from Ohio could make his request--whatever the pleasure of the leader is.

Mr. KYL

Mr. KYL. I will conclude in about 3 minutes. Mr. President, the point I was making is this: It is easy to lose sight of the larger objective when we get down into the details of specific legislation, as we must do. It is important to understand it and to get it right, but we also have to keep our eye on the ball. To mix metaphors, you have to look at the forest and not get drawn down into the trees too much. The forest here is a very dangerous enemy which means to do us harm. They have the means to do it. They have the will to do it. We are fighting them in two different kinds of conflicts. We are fighting them in hot war in Afghanistan and Iraq. It is a serious proposition. Young men and women have been sent to these places to do battle, to lay their lives on the line to carry out the mission on behalf of the American people to secure those places for liberty. Not all of them will come home. Not all of them will come home without casualty. This is serious business. It requires our full attention, with a knowledge of the nature of the threat. We cannot send them to do this job without being willing to provide them the funding they need to sustain their effort. Part of the debate today is ensuring that at least for the next 4 months, they will have enough money to get the job done. By the same token, we have an enemy all over the world, including in the United States, which is plotting, our intelligence community assesses with high confidence, to carry out a devastating attack if they have the opportunity to do so. It is critical that we use the assets we have available to collect intelligence against these organizations and people wherever they are. The best way to defeat the radical Islamists who mean to do us harm is to prevent it in the first place. That is what good intelligence allows us. That is why it is important for us to reauthorize the Foreign Intelligence Surveillance Act. My point is, on two of the great issues that are before us today, we have a violent enemy that needs to be defeated. The best way to do that is to support our troops and our intelligence agencies and the men and women who are carrying out the missions we have asked of them in defeating this enemy. We have to understand the threat and understand that in America, in this great democratic Republic of ours, the American people are the center of gravity in any war. It is their support that is needed in order to achieve victory. Our young men and women on the battlefield and our people serving us in the intelligence community are counting on us, the representatives of the American people, to see to it that they have what they need to carry out their missions.

Mr. KYL

Mr. KYL. Mr. President, we are in a little bit of a lull here before we reach the final conclusion of this session of this Congress. But much of the debate is revolving around two pieces of legislation, one of which has been at least temporarily removed from the floor, the reauthorization of the Foreign Intelligence Surveillance Act, and the other one which is critical for us to act upon before we can leave Washington, DC, and return to our home States, and that is the ability to fund the troops whom we have sent on missions abroad in places such as Afghanistan and Iraq. That funding has basically come to an end. The Defense Department has had to rob Peter to pay Paul, moving money from different accounts in the Defense Department in order to pay the ongoing effort of our troops. That is not the right way, the most efficient way, to ensure that our troops have what they need when they are fighting abroad. It is critical that we get the funding to the troops. The President has had a request out now for more than 10 months to try to get the funding on an emergency basis to them. Our minority leader will have an amendment later on this afternoon that will seek to add money to fund the troops, at least through sometime next spring. It is critical that we achieve that objective. That is the critical piece of business we have to attend to before we can leave. I thought, in connection with both of those national security issues, that some comments that our friend, the former Speaker of the House of Representatives, Newt Gingrich, made back in September to the American Enterprise Institute were of special relevance and we might well consider some of the things he said in thinking about how to move forward with this funding. Representative Gingrich said that to some extent the debate we are having right now is the wrong debate about what is necessary to defeat our enemy and win the war against the terrorists. The bottom line is, it cannot be done on the cheap. War is kill or be killed. You risk everything in war. As a result, what we have to do is think anew about the kind of bold effort and difficult undertaking this really entails. It does entail real risks, and we have to recognize that there are significant requirements for change in the way we operate. Congress can't continue to provide money, just dole it out a few weeks at a time, hoping that will be sufficient for the troops. They have to be able to count on Congress to back them when we send them on a mission. To some extent, as Representative Gingrich said, it is important to adopt a spirit that in some cases it is better to make a mistake of commission and then fix the problem than it is to avoid achievement by avoiding failure. In this regard, we have to have a national dialog about the true threat we are facing from this irreconcilable wing of Islam and what is necessary for us to defeat it, both in the ongoing conflicts in Afghanistan and Iraq as well as other places around the world where intelligence becomes our key tool in helping to defeat the enemy. One of the things Speaker Gingrich did was to refer to some remarks Daniel Pipes, an expert on the Middle East, made about Islamists. He made it clear that they have significant assets at their disposal. They have potential access to weapons of mass destruction, a religious appeal that provides deeper resonance and greater staying power than the artificial ideologies of fascism and communism. They have an impressively conceptualized and funded and organized institutional machinery. They have an ideology capable of appealing to Muslims of every size and shape anywhere in the world. This is problematic. Finally, these militant Islamists have a huge number of committed cadres, some estimate as many as 10 percent of the Muslim population of the world, which, of course, is a far greater total than all of the fascists and communists combined who ever lived. As Daniel Pipes would say, this is a significant and impressive array of assets and potential against the Western world against which these Islamists have declared war. Specifically, with reference to the intelligence I mentioned we have to focus on, the CIA Director, GEN Michael Hayden, testified a couple of months ago about his own judgment of these strategic threats facing the United States. Among the things he said was that our analysis with respect to al-Qaida is that its central leadership is planning high- impact plots against the U.S. homeland. They assess this with high confidence. So this is not just a guess about what might happen. With high confidence, they believe al-Qaida is planning high-impact plots against our homeland, focusing on targets that would produce mass casualties, dramatic destruction, and significant economic aftershocks. So our very survival as a free people is challenged by this large threat, and defeating it on a worldwide basis is inherently going to involve a very large effort, a degree of change we have yet to face. We need a debate about the genuine risk to America of losing cities to nuclear attack or losing millions of Americans to engineered biological attacks. We also need a very calm dialog about the genuine possibility of a second Holocaust if the Iranians were to get nuclear weapons and use them against Tel Aviv or Haifa or Jerusalem. All of these larger issues are sometimes lost in the debate about arcane provisions of something like the Foreign Intelligence Surveillance Act that we are seeking to reauthorize. We have to keep in mind what the object is. We have to defeat a very capable enemy which not only has the means but the will to defeat us in a war literally to the end. We also need some realistic examination of the progress--or lack thereof--we are making in the larger war. I think we have to realistically assess where we are with respect to that. In the last year or so, Hamas has won an enormous victory in Gaza; Hezbollah has won a substantial victory in south Lebanon; Iran, Syria, Lebanon, Afghanistan, the Taliban sanctuary in the Waziristan, substantial instability in Pakistan, even in the Philippines and, to some extent, even in Great Britain. The estimates of terrorist sympathizers and potential sympathizers are far greater than the resources being applied to monitor them. Again, to summarize this point with respect to intelligence surveillance, we have, even here in the United States, the spread of a militant extremist radical vision. It is funded by money from the Middle East, including Saudi Arabia. It is on the Internet, on television, it is in extremist mosques and schools. This advocacy of martyrdom, of jihad, suicide bombing, and violence against a modern civilization is not restricted to places abroad; it exists even in the United States. At the end of our conflict in Iraq and of the debate about our intelligence collection activities, there is a simple test, and that is whether a free people are celebrating because the American people have sustained freedom against evil or, God forbid, violent evil enemies of freedom are celebrating because Americans have been defeated. Life would be easier if there was a more modulated answer, but there is not. In war, there is a winner and a loser. If the American people will sustain this effort, we will win. But if American politicians decide to legislate defeat, then, of course, America could be defeated. I yield the floor.

Mr. KYL

Mr. KYL. Mr. President, I ask unanimous consent in advance if I exceed the 10 minutes under morning business that I be allowed to continue unless a colleague comes here wishing to speak.

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

Mr. KYL

Mr. KYL. Madam President, about exactly 21 years ago, after I had been elected to the House of Representatives from the State of Arizona, my wife Caryll and I came to Washington and almost immediately met Trent and Tricia Lott. In fact, we have a photograph that is displayed in our home with Trent and Tricia on which Trent made a wonderful inscription. I learned from the very beginning that Trent Lott was a leader--a leader in the House of Representatives and a leader among his colleagues. I have been following Trent Lott ever since as House whip, as Senate whip, as Senate Republican leader, and as a colleague in battles too numerous to mention. Chaplain Black began this morning asking that we come here to serve. No State has ever been served better than by their representative Trent Lott. He always puts Mississippi first, yet always is able to balance his devotion to his constituents with the national interest and with his responsibilities in representing his colleagues. That he came to serve, again to use the Chaplain's word, is best illustrated by his decision to run for reelection a year ago. Many of us knew Trent had come to believe that he had to prioritize his family responsibilities and had concluded it was about time for him to leave public service. But the catastrophe of Hurricane Katrina hit the coast of Mississippi, destroying not only the Lotts' home in Pascagoula but so many of the homes and businesses of his friends in Mississippi. It did not take Trent too long in pondering what he faced to conclude that he owed it to his constituents in Mississippi to continue to use his skills in Washington, DC, to represent them, to help them recover from the devastation that had been visited upon them. It was this service, after he had already concluded that his time had come to move out of public service, that I think illustrates perhaps better than anything else his devotion to the people of Mississippi, to his friends there. He did not decide to leave the Senate until his work was done, and for that the people of Mississippi, I know, will be forever grateful to Trent Lott. Trent has always been known as being a person who has been able to find the common ground among his colleagues. That is a very special skill. Some people call it dealmaking. Some people talk about it in terms of the art of compromise, frequently talking about Trent's ability to move across the aisle and to work with friends on both the Democratic and Republican side. I think his ability to do this, which is unprecedented in my 21 years in Washington or unequaled, I should say, is due to a variety of qualities. First, Trent's intelligence; second, his boundless energy; third, his knowledge of the institutions, of both the House and the Senate. Again, I know of no equal in terms of the knowledge of how these bodies work and how we can achieve great things by working with people in both bodies. His knowledge of the nature of man--this is something my father taught me and I have tried to learn from people such as Trent Lott-- what makes people tick--you can find that common ground and achieve great things if you understand people. I think that is one of Trent's greatest qualities and one which will be missed in this body. And, of course, his commitment to what he has always believed was right for Mississippi and America. Also contributing to his success is his faith, and it sustained him more than we will ever know. And finally, of course, his family. It is interesting that everybody who has commented about Trent's service in the Senate has quickly moved to also comment about his commitment to his family and in particular his wonderful wife Tricia. It has to say something when that is one of the first things people think of when they think of you. I know if that is the way Trent is remembered, he will be a very happy man. Trent Lott has been serving almost his entire adult life. The people of Mississippi, the people of America, his colleagues in the House and Senate, and I have been honored to serve with Trent for 21 years. I have learned a lot. Most importantly, I have enjoyed my time with Trent, especially quiet time. Now it is time for Trent to serve his family more in accordance with his priorities, and no one can argue that he has not earned that right. So Trent Lott, a man for all seasons--Representative, Senator, servant, leader, husband, father, and grandfather, proud American and Mississippian and friend--thank you. God bless you.

Mr. KYL

Mr. KYL. Mr. President, I join my colleague from Georgia in encouraging support for the motion to proceed so we can begin consideration of this important bill. The reason for the FISA bill is very straightforward. Technology has outpaced the law. We are now able to collect intelligence in ways that were never understood or contemplated years ago when the law was drafted. As a result, we need to change the law to accommodate that collection. Before we changed the law last year, we had lost about two-thirds of the ability to collect intelligence against al-Qaida. Clearly, in this war against these evildoers, these terrorists, we cannot cede two- thirds of the playing field to them without any monitoring or collection of intelligence against them. When we did the Protect America Act last summer, we regained the capability to collect that intelligence by conforming the legal procedures to the technology that enables us to collect this material. Al-Qaida has not ceased to exist after 9/11. In fact, it exists and is still desiring to carry out the same kinds of attacks against the United States and other countries that it did on 9/11. We know the incredible amount of damage that can be inflicted if we are not prepared to deal with them. We also know that the best way to deal with al-Qaida and the like is to collect intelligence so we can prevent attacks from occurring rather than worrying about them after they have occurred. That is why it is so important for us to ensure that under the law we can engage in the kind of intelligence collection against al-Qaida that technology today enables us to do. Many of our friends on the other side of the aisle have insisted that there be stringent congressional oversight of these programs by which we collect the intelligence. No one disputes that is a desirable thing to do. That is why this Congress and previous Congresses have agreed on a bipartisan basis to create robust oversight of U.S. intelligence gathering, even when it is against foreign targets. The agencies executing wiretaps and conducting other surveillance must report their activities to Congress and to others, so the opportunities for domestic political abuse of these authorities is eliminated. No one is on a witch hunt against Americans. There is more material out there to be collected against foreign targets. Our people certainly don't have time to try to spy on Americans. That is not what is involved. We have to be careful that in creating this oversight we don't cut deeply into the capabilities of our intelligence community, that we don't in effect limit what they are able to do. If you compare the Intelligence Committee bill with the Judiciary bill, you will see that the Judiciary bill would severely limit this collection of intelligence. Even the Intelligence Committee bill has one major flaw in it. We have to be careful that we don't tie down our Intelligence agencies with so many limits on how they can monitor foreign terrorist organizations that they really cannot respond to the threat that exists. Let me give one example. The Intelligence Committee bill, which is the bill we are taking up first and which we should adopt, includes a provision that has been labeled the Wyden amendment which, as written, would require a warrant for any overseas surveillance that is conducted for foreign intelligence purposes and targets a U.S. person. As the Senator from Georgia pointed out, we already have protocols to deal with that, to minimize any potential problems that might arise in conducting intelligence that would include a U.S. person. But the way the Wyden amendment is written is overly broad and unprecedented. Under current law, a warrant would not be required for overseas surveillance that is targeted to a U.S. person if that surveillance is conducted for purposes of a criminal investigation. So consider the anomaly. The Wyden amendment would create a requirement for a warrant to go after foreign terrorists involving also potentially U.S. persons, but it would not require a warrant in those circumstances of drug trafficking or money laundering that involve the very same people. It should not be more burdensome to monitor al-Qaida than it is to monitor a drug cartel. Yet the Wyden provision literally creates a situation where if an overseas group that includes U.S. persons is suspected, for example, of smuggling hashish, no warrant is required, but if the same overseas group is suspected of plotting to blow up New York City, then a warrant would be required. This is not only anomalous; it is bad policy. It is the very kind of thing that if, God forbid, another attack should occur and we permit this to be written into the law, the next 9/11 Commission will criticize the Congress for writing it into the statute. We can prevent that from occurring by rejecting the Wyden amendment. Let me conclude by asking: What is our goal? Do we want to allow our intelligence agencies to use the most up-to-date technology to track and prevent attacks by the most evil people in the world today, these al-Qaida terrorists, or are we so concerned about some potential theoretical, possible situation in which an American citizen's communications might be temporarily intercepted, if they call an al- Qaida person or an al-Qaida person calls them, that we are not going to take advantage of these intelligence-collection techniques? We can write the law to ensure the protection of every U.S. person. We need to do that. But we cannot restrict our intelligence agencies from collecting that intelligence that is out there that might warn us of another attack.

Mr. KYL

Mr. KYL. Mr. President, I rise today to discuss the energy legislation Congress is on the brink of passing in these last days of the first session of the 110th Congress. I voted against this legislation in the Senate because it contains numerous provisions that will distort competitive markets for energy through subsidies, Government mandates, special projects, and irresponsible increases in Federal spending. This bill will not promote the goal of energy security but will likely increase fuel and food prices and reduce consumer choice for everything from cars to light bulbs. First, I want to talk about ethanol. It is difficult to understand why Congress continues to believe that ethanol is a desirable substitute for gasoline. It is widely reported that even if all of the 300 million acres--500,000 square miles--of currently harvested U.S. cropland produced ethanol, they wouldn't supply all of the gasoline and diesel fuel we now burn for transport, and they would supply only about half of the demand for the year 2025. We are not going to grow our way to energy security. We are also starting to see the devastating effects our current ethanol production is having on our scarce water supply, the environment, and human health. Despite these facts, one of the bill's most prominent features is a five-fold increase in the ethanol mandate from the currently required 7.5 billon gallons by 2012 to 36 billion gallons by 2022. Meeting this mandate will require even more corn-based ethanol and the production of other so-called advanced biofuels, largely made from cellulosic ethanol. Although cellulosic ethanol production is in its infancy and does not exist commercially today, the bill specifies that 21 billion gallons of the 36 billion gallons mandated be cellulosic ethanol. This is nothing more than a congressional gamble with American taxpayer dollars. If Congress is serious about moving away from oil to alternative fuels it cannot, as it has done here, subsidize political favorites and engage in statutory prescription. This will actually slow energy innovation and may even retard the gains we have made. An excellent example of this point is the exclusion of woody biomass material from our Nation's overgrown forests from the production of advanced biofuels. Companies throughout the West, including many small businesses, are working in partnership with the Federal Government to help restore our national forests by removing this woody biomass material and using it to produce energy. This oversight in the bill complicates these efforts and could seriously slow the gains my home State of Arizona and other Western States dominated by Federal lands have made to combat catastrophic wildfire. Now, let's turn to the other major feature of this bill--federally mandated increases in corporate average fuel economy, CAFE, standards. This bill requires each manufacturer's fleet to average 35 miles per gallon by 2020, a roughly 40 percent increase over current standards for cars and trucks. What this proposal seems to overlook is that more fuel efficient cars and trucks already exist on the market for those who want them. And as gas prices rise, my guess is increasing numbers of consumers will buy smaller, more fuel efficient cars without being told to do so by Congress. The point is that this is a consumer choice issue. By federally mandating these increases there will be less choice, increases in car sticker prices, and the very real possibility of more unnecessary highway deaths due to the increases in lighter vehicles, which generally are less safe in collisions on the road. A National Academy of Sciences study concluded that vehicle downsizing costs 1,300 to 2,600 lives per year. Another major problem with the CAFE provisions in the bill is the failure to clarify the regulatory responsibilities of the National Highway Transportation Safety Board and the Environmental Protection Agency over the regulation of tailpipe emissions and fuel economy requirements. The administration in its Statement of Administration Policy makes this point. Failing to address this issue will likely leave industry to sort through layers of contradictory regulation. Beyond the biofuels and CAFE provisions, the bill includes a full assortment of new efficiency mandates for appliances and buildings and even takes measures to phase out incandescent lightbulbs. Industry in the private sector has already brought to market alternative lighting technologies to the traditional lightbulb, and as prices drop consumers are switching over to them. Provisions like these are nothing more than Congress's attempt to take credit for something the market is already doing and accomplishing far more quickly and efficiently than the government can, I might add. In sum, instead of enacting poor energy policy, Congress should focus on what it must do before we leave here this year--fund the Government by enacting fiscally responsible appropriations bills and ensuring our troops have what they need.

Mr. KYL

Mr. KYL. Mr. President, I rise today to comment on H.R. 660, the Court Security Improvement Act of 2007. Section 509 of the final substitute transfers one seat from the U.S. Court of Appeals for the District of Columbia Circuit to the U.S. Court of Appeals for the Ninth Circuit. The reasons for this change are explained in Senator Feinstein's and my additional views in S. Rept. 110-42. Section 102 of the bill authorizes the U.S. Marshals Service to provide protection to the U.S. Tax Court, and stipulates that the Marshals Service retains final authority regarding the Tax Court's security needs. The Tax Court has expressed concern to me and to other Members that the Marshals Service should consult with the Tax Court about the costs that it expects to incur for providing security--costs that will be charged to the Tax Court. The Marshals Service has assured Congress that it will consult with the Tax Court on these matters and that it will not surprise the Tax Court with charges that the court may have difficulty paying. Rather than include heavy-handed consultation requirements in the text of the legislation, we have agreed to adopt the bill in its current form on the strength of these assurances. Section 202 of the bill makes it an offense to disseminate sensitive personal information about Federal police officers and criminal informants and witnesses. The final version extends this offense to also protect State law enforcement officers, but only to the extent that their participation in Federal activities creates a Federal interest sufficient to maintain this provision's consistency with principles of federalism. Section 207 increases statutory maximum penalties for manslaughter under section 1112 of title 18. I expect the U.S. Sentencing Commission to revise its guidelines for these offenses in light of these new higher statutory maxima. I commented on the need for these changes when the Senate version of this bill passed the Senate earlier this year and would refer interested parties to those remarks and especially to Paul Charlton's testimony, at 153 Cong. Rec. S4739-4741, daily ed. April 19, 2007. Section 208 increases the penalties for retaliatory assaults against Federal judges' family members. This provision also clarifies an assault offense that was created by Congress in 1994. The offense establishes penalties for simple assault, assault with bodily injury, and for assault in ``all other cases.'' As one might imagine, the meaning of assault in ``all other cases'' has been the subject of confusion and judicial debate. The offense has also been the subject of constant vagueness challenges, and although those legal challenges have been rejected, the offense is rather vague. Section 208 takes the opportunity to correct this legislative sin, codifying what I believe is the most thoughtful explanation of what this language means, the 10th Circuit's decision in United States v. Hathaway, 318 F.3d 1001, 1008-09, 10th Cir. 2003. A conforming change has also been made to section Ill of title 18, so that sections 111 and 115 will match each other and, again, so that people can easily figure out what this offense actually proscribes. Section 503 of the bill guarantees that senior district judges may elect to participate in court rulemaking, appointment of magistrates and court officers, and other administrative matters, so long as such judges carry at least half of the caseload of an active district judge. I believe that this provision is a bad idea, though its negative consequences have been greatly mitigated in this final substitute as a result of the intervention of Senator Sessions. Many senior judges are often not present at the courthouse and are disengaged from the work of the court and the life of the court. Moreover, Congress has no business telling the courts how to manage these types of internal organizational matters. Those jurists who share my objection to this provision should be grateful to Senator Sessions, who insisted that the provision be limited to district judges as opposed to circuit judges, that a senior judge be required to elect to exercise these functions, and that a senior judge carry at least half of a full caseload in order to be entitled to assume these powers. Finally, section 511 adds nomenclature to section 2255 of title 28, a change recommended to me by Kent Scheidegger of the Criminal Justice Legal Foundation. This change has no substantive effect but should make this code section easier for litigants to cite.

Mr. KYL

Mr. KYL. Mr. President, there has been a great deal of debate in recent weeks about whether to fund the needs of our soldiers overseas. The time to act has come. We are nearing the end of the first quarter of the fiscal year, and despite steady progress in Iraq, Congress still has not passed a funding bill for our soldiers. Members of this body have been aware of the consequences of delaying funding for a long time. In a November 8 letter, Deputy Secretary of Defense Gordon England explained that failure to fund military operations will ``result in having to shut down significant portions of the Defense Department by early next year.'' The specific consequences, in Secretary England's words, include ``closure of military facilities, furloughing of civilian workers and deferral of contract activity.'' In case there is any confusion about what this means to the military, Secretary England is quite clear: ``this situation will result in a profoundly negative impact on the defense civilian workforce, depot maintenance, base operations, and training activities.'' He also acknowledged that this delay in funding doesn't only harm our military but also sets back the training and equipping of Iraqi and Afghan security forces, whose expeditious development is critical to lasting peace in those nations. This delay in funding shows a lack of support for our troops in harm's way, disregard for the measurable progress they have achieved in recent months, and indifference to the future of Iraq and Afghanistan. That is not the kind of leadership the American people expect of Congress. It is time to heed the clear warnings from the Department of Defense, come together in support of the progress our soldiers are making, and provide them with the necessary resources so that they can continue their important work on behalf of the American people. A December 8 article in the Washington Post by LT Pete Hegseth and GEN John Batista, a prominent critic of the Administration's policy in Iraq, encouraged Americans ``to stand together, in and out of uniform,'' and commit to defeating our enemies. That means supporting the progress our soldiers are achieving and providing them the funds necessary to complete their mission and, thus, make Americans safer. I ask unanimous consent to have the attached article printed in the Record.

Mr. KYL

Mr. KYL. Madam President, I rise today to comment on the OPEN Government Act. This bill is only a slightly modified version of S. 849, a bill that passed the Senate on August 3 of this year. At that time, I made a more complete statement regarding the bill--see 153 Congressional Record at S10987 to S10989 in the daily edition of the Record,, on August 3, 2007--as did Senators Leahy and Cornyn--see the Record at S10986 to S10987 and S10989 to S10990. Thus my remarks today need only describe the changes made to the bill and a few other matters. One section of the bill that makes important changes to the law and thus deserves comment is section 6. Although this section appeared in S. 849, I did not address the provision in August because final negotiations regarding the language of that section were completed only an hour or so before we began a hotline of the bill. The purpose of section 6 is to force agencies to comply with FOIA's 20-day deadline for responding to a request for information. The original introduced version of S. 849 sought to obtain agency compliance by repealing certain FOIA exemptions in the event that an agency missed the 20-day deadline, an approach that I and others argued would impose penalties that were grossly disproportionate and that would principally punish innocent third parties--see S. Rep. 110-059 at 13-14 and 15-19. The current draft applies what is in my view a much better calibrated sanction, the denial of search fees to agencies that miss the 20-day deadline with no good excuse. Several features of this new system merit further elaboration. First, the 20-day deadline begins to run only when a FOIA request is received by the appropriate component of the agency, but in any event no later than 10 days after the request is received by a FOIA component of the agency. The reasoning behind this distinction is that requesters should receive the full benefit of the 20-day deadline if they make the effort to precisely address their request to the right FOIA office, and that they should also be protected by the secondary 10-day deadline if they at least ensure that their request goes to some FOIA component of the agency. So long as a misdirected request is sent to some FOIA component of an agency, it is reasonable to expect that such component will be able to promptly identify that missive as a FOIA request and redirect it to its proper destination. On the other hand, if a FOIA request is sent to a part of an agency that is not even a FOIA component, it is difficult to impose particular deadlines for processing the request. For example, if a request is sent to an obscure regional office of an agency, it will probably simply be sent to regional headquarters. Many agencies have a large number of field offices whose staff handle very basic functions and are not trained to handle FOIA requests. Such staff probably will not recognize some requests as FOIA requests. Implementing a deadline that extended to FOIA requests that are received by such staff would effectively require training a large number of additional agency staff in FOIA, something that Congress has not provided the resources to do. Also, because this bill imposes significant sanctions on an agency for a failure to comply with the 20-day deadline, it is important that the deadline only begin to run when the agency can reasonably be expected to comply with it, and that the law not create opportunities for gamesmanship. If the deadline began to run whenever an agency component receives the request, for example, sophisticated commercial requesters might purposely send their request to an obscure field office in the hope that by the time the FOIA office receives the request, it will be impossible to meet the deadline, and the requester will thereby be relieved from paying search fees. Given the wide variety of types of FOIA requesters, Congress cannot simply assume that every requester will act in good faith and that no requester will seek to take advantage of the rules. The present bill therefore initiates the 20-day deadline only when the request is received by the proper FOIA component of the agency, or no later than 10 days after the request is received by some FOIA component of the agency. Section 6 of the bill also allows FOIA's 20-day response deadline to be tolled while an agency is awaiting a response to a request for further information from a FOIA requester, but only in two types of circumstances. Current practice allows tolling of the deadline whenever an agency requests further information from the requester. Some FOIA requesters have described to the Judiciary Committee situations in which some agencies have abused this process. For example, some agencies, when they are about to miss the 20-day deadline, allegedly have contacted a requester to simply inquire whether the requester still wants the request, or with other frivolous inquiries, all for the purpose of obtaining tolling of the deadline. Such practices should not be permitted. On the other hand, agencies do have a legitimate need for some tolling of the deadline. The language of subclauses (I) and (II) is the result of hard-fought negotiations between the FOIA requester community and representatives of the agencies, negotiations to which Senator Leahy and I, frankly, served more as mere conduits rather than full participants. This language allows tolling whenever and as often as necessary to clarify fee issues, and also allows one additional catch-all request with the stipulation that this additional request must be reasonable. With regard to the tolling for requests for information relating to fee assessments that is authorized by subclause (II), neither agencies nor requesters would benefit if agencies could not contact requesters and toll the deadline while waiting to hear whether a requester still wanted the request in light of, for example, a substantial upward revision in the search fees that would be assessed in relation to a FOIA request. And because such upward revisions might occur multiple times as a request is processed, it is not practical to impose a numerical limit on such fee-related requests. Such requests need only be necessary in order to be entitled to tolling under this subclause. Presumably, a request as to whether a requester still wanted his request in light of a trivial upward revision in the search-fees estimate would not be ``necessary,'' and therefore would not be entitled to tolling. Moreover, tolling only occurs while the agency is awaiting the requester's response. If an agency were to call or e-mail a requester and inquire whether he still wanted the request in light of a $100 increase in estimated review or search fees, and the requester immediately responded yes, no tolling would occur. At least at this time, it is not apparent how this tolling exception could be abused. With regard to the catch-all requests authorized by subclause (I), representatives of the agencies identified for the committee a wide array of additional reasons for which agencies reasonably need to request additional information from the requester and should be entitled to tolling. The agencies' representatives, however, also thought that an agency would not need to make more than one such non- fee-related information request. Since the agencies are the masters of their own interests, we have incorporated that limit into this bill, allowing the agencies to make a tolling-initiating request for any purpose and in addition to previous fee-related requests, with the additional stipulation that these one-time requests also be reasonable. Additional changes were made to this bill from S. 849. This bill omits section 8 of the August-passed bill. The former section 8 maintained the requirement that previously enacted statutes only be construed to create exemptions to FOIA if the statute at least established criteria for withholding information, but required that future statutes instead include a clear statement that information is not subject to release under FOIA. I only grudgingly accepted former section 8 since I do not favor the use of clear statement rules in this circumstance. The rule likely would serve as a trap for unwary future legislative drafters. Under such a rule, even a statement in a statute that particular information shall not be released under any circumstances whatsoever would be construed not to preclude release of the information under FOIA. On the other hand, some FOIA requesters came to have second thoughts about section 8's elimination of the requirement for future legislation that FOIA exemptions at least set criteria for what information may be withheld. In my view, it would not be practical to require a clear statement in addition to requiring that exemptions only be implied when release criteria are identified. At the very least, it would pose a difficult question of statutory construction were a court asked to construe a statute to allow information to be ``FOIAble'', despite a clear statement in the statute that the information was not subject to release under FOIA, because the statute did not also set criteria for withholding the information. I have never seen such a ``clear-statement-plus rule.'' I think that simple clear-statement rules themselves reach the zenith of one legislature's power to bind future legislatures, and that a ``clear- statement-plus rule'' would cross that line. Given the preference of some advocates for this bill for keeping the requirement that FOIA exemptions identify withholding standards or criteria, and my objection to combining a clear-statement rule with additional requirements for identifying a FOIA exemption, the compromise reached in this bill was simply to strike the previous section 8. This draft also includes a provision that is now subsection (b) of section 4 that requires that attorneys' fees assessed against agencies be extracted from the agencies' own appropriated budgets rather than from the U.S. Treasury. This change was necessary in order to avoid an unwaivable point of order against the bill in the House of Representatives under that body's pay-go rules. I do not like this provision. As I explained in my August 3 remarks, I believe that section 4 already awards attorneys' fees too liberally in the circumstances of a settlement. Effectively, it protects an agency from fee assessments not when the agency's legal position would prevail on the merits, but rather only when the requester's claims would not survive a motion to dismiss or for summary judgment. I believe that this standard will discourage agencies from settling--even a case that the agency believes that it will win at trial it likely will be disinclined to settle if the agency believes that the claims would not be dismissed on summary judgment. Subsection (b), by extracting the fees out of the agency's own budget, substantially aggravates section 4's de facto no-good-deed-goes-unpunished rule, and will further aggravate section 4's tendency to discourage agencies from settling FOIA lawsuits. Unfortunately, we have been unable to identify any way of solving the bill's pay-go problems other than by partly repealing or delaying the implementation of parts of the OPEN Government Act, solutions to which advocates for the bill balked. The effects of subsection (b) should be monitored and, if the provision is as discouraging of settlements and disruptive to agency budgets as I fear that it might be, perhaps the provision should be repealed or a separate fund established to pay the fees assessed pursuant to FOIA's fee-shifting rules. Finally, the bill includes two changes that were sought by the House. One is to expand section 6's denial of search fees to agencies that miss the response deadline to also include duplication fees in the case of media requesters and other subclause (II) requesters who already are exempted from search fees. Since these requesters already do not pay search fees, in their cases the threat of denying agencies such fees if the 20-day response deadline is not met is not much of a sanction. Although duplication fees for idiosyncratic requests sometimes are massive and denying such fees in all cases would be excessive--paper and toner do cost money--it is my understanding that media and other subclause (II) requesters typically make narrow and tailored requests that do not result in massive duplication costs. The last change made in this bill is the addition of the new section 12, which requires that when an agency deletes information in a document pursuant to a FOIA exemption, that it identify at the place where the deletion is made the particular exemption on which the agency relies. Overall, I believe that the bill that will pass the Senate today strikes the right balance and that it will improve the operation of the Freedom of Information Act, and I encourage my colleagues to support this legislation.

Mr. KYL

Mr. KYL. Mr. President, I support the Klobuchar amendment because it moves farm policy in the right direction. It would limit commodity program payments for those farmers who earn more than two-thirds of their income from farming, after expenses are deducted, to $750,000. The amendment, however, has a number of problems. For example, rather than applying the savings achieved by tightening the payment limitations to deficit reduction, it applies most of the savings to other farm programs. It also does not apply the stricter income test to conservation program payments. Nevertheless, the amendment takes a step forward in reining Federal spending on farm subsidies and, therefore, warrants my support. Vote On Amendment No. 3810

Mr. KYL

Mr. KYL. Mr. President, again, I appreciate the assurance that this will be done by February 1, when it has to be done, or all of the authority to collect this intelligence expires. It has to be done. I think we are in session maybe 1 or 2 weeks, potentially, when we come back before that date. If we don't do it, our country is in grave jeopardy. I would have thought perhaps a better way to resolve that is to do it now so we don't have to wait again until the very last minute to accomplish something that is so important for the security of our country. I yield the remaining time to the Senator from Texas.

Mr. KYL. Mr. President, it is obvious by now we are not going to be able to conclude some of our business through the process of getting concurrence from the other side. There are two emergency matters that do cry out for treatment quickly and, therefore, I will propound two emergency unanimous consent requests. The first has to do with border funding. Twice this year, the Senate overwhelmingly--in fact, in 1 day--unanimously approved $3 billion for increased border fencing, 23,000 additional Border Patrol agents, 300 miles of vehicle barriers, 700 linear miles of fencing, 105 ground- based radar and camera towers, 4 unmanned aerial vehicles, and increased the detention capacity to 45,000. Twice that was passed, but it is still not law. We are coming up to the end of the year. It has to be done. Mr. President, I ask unanimous consent that the Senate proceed to the immediate consideration of S. 2348, the Emergency Border Funding Act, and I ask unanimous consent that the bill be read the third time and passed; that the motion to reconsider be laid upon the table; that any statements relating to the bill be printed in the Record.

Mr. KYL. Mr. President, if that is a unanimous consent request, since we obviously have no idea what that conference report is, whether it includes anything else, obviously we cannot do that. If that is a unanimous consent request, obviously, we cannot agree and I will object. The question is, Is there objection to the unanimous consent I propounded?

Mr. KYL. Mr. President, it is certainly nice to have an assurance that we will soon be passing it, with only a few days remaining in the session. Obviously, we need to pass it. The reason for my request was in the event it is not done later. I think we are tempting fate. The other request I will make relates to another emergency matter. Last August, in a bipartisan fashion, we filled a very dangerous hole in our terrorist surveillance capabilities by passing the Protect America Act, which updated our Foreign Intelligence Surveillance Act by giving our law enforcement professionals the tools they need to keep up with modern technology to monitor terrorists overseas. That act expires in February. We are not here that many days between now and then. Obviously, the terrorist threat continues; it is not going to expire. We need to permanently extend this critical law enforcement tool to make sure our American telecommunications companies, which bravely answered the call to help their country when asked to do now, do not have to respond to frivolous lawsuits as a result of their patriotism. I hope my colleagues will join me in seeing to it that the Protect America Act can be passed and made permanent. Mr. President, I ask unanimous consent that the Senate proceed to the immediate consideration of a bill to make permanent the Protect America Act, the text of which is at the desk, and that the bill be read the third time and passed and the motion to reconsider be laid upon the table.

Mr. KYL

Mr. KYL. Mr. President, I was called off the floor just as the majority leader was saying some very nice things about me. I heard most of them, but I regret I didn't hear them all. I will ask him to repeat them privately. But in any event, it is true we are neighbors and as a result have had an opportunity to work together on a lot of items. It doesn't matter which side of the aisle we are on, we can certainly do that. I also appreciated the old story about the lawyers who fight for their clients' interest during the day, going at it tooth and nail, but when the day is over they get together. But as I heard the story it wasn't that they got together for a sandwich, I always thought they got together for a drink at the end of the day. But recognizing the majority leader's bent, I appreciate the story, and he certainly has my assurance that I will approach the position, which eventually I will take in a matter of a few days, in that same spirit. Again, I appreciate the comments he made.

Mr. KYL

Mr. KYL. Mr. President, I have never opposed a free trade agreement, FTA, although I have sometimes had reservations or concerns about different elements of the agreements. I believe free trade encourages economic growth, improves living standards by making a wider variety of goods and services available at more affordable prices, and creates good-paying jobs. In fact, exports from the U.S. account for more than 10 percent of our annual gross domestic product and one in six manufacturing jobs are related to exported products. I also understand that the benefits of trade accrue not only to Americans, but also to workers in other countries; but this is also to our benefit. The more free trade encourages economic growth and job creation around the world, the more demand there will be for high-value American products and services. Trade fosters closer economic relations with other countries and those economic ties generally lead to improved political relations, which benefits our national security. For these reasons, I have been a strong, consistent, and vocal supporter of free trade. And for these reasons, I take my vote against the Peru FTA today extremely seriously. I have decided to oppose the Peru FTA not because I have any quarrel with Peru or because I am in any way opposed to expanding our bilateral trade relations with Peru. In fact, I strongly support the original Peru FTA. My opposition to the Peru FTA is rooted entirely in the agreement reached by the U.S. Trade Representative, USTR, with Members of the other body in May of this year. That agreement forced the U.S. to renegotiate the Peru, Panama, and Colombia FTAs to add new requirements for labor and environmental protections and weakened traditional trade agreement protections for certain U.S. intellectual property, IP, related to pharmaceutical products. I am concerned about the labor and environment provisions, but I am simply puzzled by the intellectual property changes. I am not sure what my colleagues hoped to gain by weakening standard protections for U.S. intellectual property through this trade agreement. I see no reason why U.S. legislators would want to weaken the ordinary protections that are normally accorded to pharmaceutical intellectual property in our bilateral trade agreements. Peru did not, in the course of negotiations, ask us to weaken the IP requirements. Peru was perfectly willing to abide by the greater protections of the original FTA. If the goal of these changes was to provide better access to lifesaving medicines in Peru, I worry that their effect could have the exact opposite result. Countries with weaker IP protections will have a difficult time encouraging U.S. companies to do business there. Respect for private property--including intellectual property--is essential to encouraging innovation. Without assurances that new and creative products and services will not be stolen by unscrupulous competitors or forcibly devalued by governments, there is a reduced incentive to take the economic risks that are necessary to achieve groundbreaking inventions. And why should we expect that those who want to weaken protections for U.S.-owned intellectual property will stop at pharmaceuticals? Are computers, movies, music, and other products that involve valuable U.S. intellectual property next? U.S. intellectual property is one of our most valuable exports; it is not in the national interest of the United States to unilaterally weaken protections for it. I would like to share some statistics that underscore my concern for protecting U.S. intellectual property. First, IP-related industries provide some of the highest quality jobs in the U.S. According to some studies, IP-related jobs pay as much as 40 to 50 percent more than jobs that are not dependent upon intellectual property. That means that devaluing U.S. intellectual property will hurt U.S. workers. Further, economists estimate that over 50 percent of U.S. exports depend upon intellectual property protection of some sort, up from below 10 percent 50 years ago. My colleagues know that theft of U.S. intellectual property is rampant overseas, costing U.S. companies many billions of dollars annually and costing the U.S. economy high-paying jobs. We should use FTAs to enhance protection for U.S. intellectual property, not weaken it. Finally, I want to explain to my colleagues that I made my concerns known to the USTR on several occasions. When I first began hearing that the USTR might renegotiate the various Latin American FTAs to secure support in the other body, I made sure the USTR knew of my strong concerns about weakening IP protections. As the discussions progressed, six members of the Finance Committee wrote a letter to the USTR in May of this year outlining our very serious concerns with all of the areas under renegotiation: labor, environment, and intellectual property. Finally, when the USTR, Ambassador Schwab, came to meet with members of the Finance Committee this fall I again expressed my concerns about weakening the standard protections that had been traditionally accorded to IP in our other FTAs. Because the administration apparently made no attempt to address our concerns or to assure us that other actions could be taken to enhance protections for valuable U.S. intellectual property, I am compelled to oppose the Peru FTA. I urge my colleagues to give additional thought to whether it is wise to unilaterally weaken the intellectual property protections we normally include in FTAs. These provisions better not be included in future FTAs or I will work for their defeat.

Mr. KYL

Mr. KYL. Thank you, Mr. President. I thank my colleague from Texas for his comments about the Foreign Intelligence Surveillance Act and would like to expand on those a little bit more. The Foreign Intelligence Surveillance Act we sometimes refer to as FISA or the FISA law. It is important we understand why we need to update this FISA law. In a word, it has to do with the fact that technology has moved forward faster than our ability to change the law. As a result, as the Senator from Texas just noted, we lost about two- thirds of the intelligence gathering on al-Qaida that we could have intercepted and were previously intercepting when it became clear we needed to change the law to keep pace with the advances in technology. In the Protect America Act we restored access to that information, and we are now back to collecting that information. But the Protect America Act expires on February 1. As a result, we are now back to reauthorizing that act in a permanent way. We need to do so because, again, if this authority lapses, we are back to where we were when we were losing two-thirds of the information that we should be gathering on al-Qaida. It is not as if we do not understand this is a serious problem. Al- Qaida still exists. It has not been destroyed. We know what it has done. We know what it would like to do. We know they continue to plot. It is critical for us not to ignore the threat. Of course, the first step in dealing with it is to do the best possible job we can in monitoring communications between people who would do us harm. We all agree that congressional oversight is important to the effort, and all of the legislation we have adopted has enhanced congressional oversight. That is a good thing. That is not in question. But you do not have congressional oversight so oppressive that the intelligence folks cannot collect the information they need to collect. We need to be careful that in redrafting FISA we do not actually impede our intelligence collection in the name of congressional oversight. There are some problems with legislation that came out of our committee, the Judiciary Committee--some big problems--much less so with the bill that passed out of the Intelligence Committee. Even Members who objected earlier agreed, and I think have agreed, we can provide the necessary statutory authorization for the President to act, and I think most would agree we have to have such authorization in place to deal with groups such as al-Qaida. But their concern was we simply wanted to have congressional authority for it, and that is what the act has done. We have to be careful that in granting the authority we do not attach so many conditions to it that, once again, it is impossible for the intelligence agencies to do the job we have mandated they do. As I said, the bill reported out of the Judiciary Committee, and to some extent even the bill from the Intelligence Committee, does tie down our intelligence agencies with too many limits on how they can monitor foreign intelligence organizations. What we are really looking at is some of my colleagues' efforts to take away core responsibilities and authority that the President has to protect our Nation in gathering foreign intelligence. Let me cite a couple of examples. The Judiciary Committee bill makes FISA the ``exclusive means''--that is the language--of gathering foreign intelligence absent express statutory authority. That is too narrow. In other words, what it is saying is, if another intelligence- gathering tool is not actually authorized by a statute, then it cannot be used to gather intelligence on a group such as al-Qaida. One obvious example of this is grand jury subpoenas. They are authorized by rules of evidence, not by a Federal statute. The way the Judiciary Committee bill appears to be written, the United States could not even use grand jury subpoenas to gather information about al-Qaida. Obviously, that is not an intended result--at least I would hope not-- but it is one of the things that would have to be fixed if we were to consider the Judiciary Committee bill. Another provision is in both bills, and it has been referred to as the Wyden amendment, named after my good friend and colleague from the State of Oregon. But as that provision is written, a warrant would be required for any overseas surveillance that is conducted for foreign intelligence purposes and is targeted against a U.S. person. Under current law, however, a warrant would not be required for overseas surveillance targeted at a U.S. person if that surveillance is conducted strictly for a criminal investigation. So you have the anomaly where a much lesser standard exists for mere criminal investigations and the tough standard for the intelligence community to try to meet exists for gathering foreign intelligence against terrorists, when you want to be able to gather that intelligence and may need to do so in a very quick fashion in order to prevent an attack. So the Wyden amendment would create the anomaly whereby U.S. overseas surveillance in the course of, say, drug trafficking or money laundering does not require a warrant, but foreign surveillance against a terrorist does. That is not a wise way to write the statute. It should not be more burdensome to monitor al-Qaida than it is to monitor a drug cartel. So that, obviously, would need to be fixed. Moreover, many foreign terrorist organizations engage in both terrorism and ordinary criminal behavior such as drug smuggling or money laundering. This provision, unfortunately, creates the perverse incentive for U.S. agents to monitor a group for its criminal activities rather than on account of its terrorist activities. The provision literally makes it easier to monitor a group on account of its smuggling of marijuana than on account of the fact that it is a foreign terrorist organization. These kinds of artificial distinctions, obviously, make no sense and overly complicate the mission that is very difficult to begin with that we have asked our intelligence community to engage in. In another area the Judiciary Committee stripped provisions from the Intelligence Committee bill that protect from lawsuits those telecommunications companies that have assisted U.S. intelligence agencies. This is very wrong. These companies were asked by the United States to help monitor al-Qaida after the September 11 attacks. Being patriotic Americans who wanted to help the United States in responding to the threat, the phone companies agreed to provide the help, and now they are being punished with lawsuits that damage these companies' reputations and are very expensive for them to respond. These companies helped us after September 11. They are not going to help again if we do not protect them from these types of lawsuits. The Intelligence Committee bill included a provision in the bill to do exactly that. Yet that provision was stripped, as I said, in the Judiciary Committee. It took away the protection for those who helped monitor al-Qaida. We need to restore that protection for these folks who helped us. The bottom line is, what is our goal? Do we want to allow our intelligence agencies to be able to use every legal tool at their disposal to track al-Qaida communications or do we want to again tie up our intelligence agencies in restrictions and procedures and then have some future 9/11 Commission--after, God help us, perhaps another terrorist attack--say Congress balled this up and included so many restrictions on intelligence gathering that they were not able to find out this attack was about to occur? We have to enable our intelligence agencies, not unduly restrict them. Obviously, we need oversight to prevent abuses. That is included in the statutory language, and that is fine. But it does not make sense to impose other restrictions that primarily serve only the purpose of preventing us from collecting good intelligence. There is no excuse, in effect, for making the same mistake twice. So, in summary, we are going to be dealing with the FISA reform on the floor of the Senate very soon. We need to. The authorization that currently exists expires on February 1. We need to have something in place before that occurs. The bill that came out of the Intelligence Committee by and large will provide the intelligence collection authority that is needed, although there are some problems with it as well. But the provisions that came out of the Judiciary Committee will not work. They will not allow our intelligence collection agencies to do their job properly and, as I said, create the anomalous situation where it is easier to go after intelligence on a criminal enterprise than it is against a terrorist organization. That cannot be. So I hope my colleagues, when we bring this bill to the Senate floor, will consider the future, the threat of groups such as al-Qaida, and understand it is up to us to ensure our Nation can be protected and not make the same mistake we made before of unduly restricting our intelligence-gathering agencies in fulfilling the mission--the so very important mission--we have asked them to perform.

Mr. KYL

Mr. KYL. Mr. President, there is objection on behalf of members of the Republican side. As you know, the Republican leader objected to the same request yesterday. There is objection.