Jon Kyl

Mr. KYL

Mr. KYL. The following Senator is necessarily absent: the Senator from Arizona (Mr. McCain).

Mr. KYL

Mr. KYL. The following Senator is necessarily absent: the Senator from Arizona (Mr. McCain).

Mr. KYL. The following Senator is necessarily absent: the Senator from Arizona (Mr. McCain).

Mr. KYL. The following Senator is necessarily absent: the Senator from Arizona (Mr. McCain).

Mr. KYL

Mr. KYL. The following Senator is necessarily absent: the Senator from Arizona (Mr. McCain).

Mr. KYL. The following Senators are necessarily absent: the Senator from Arizona (Mr. McCain) and the Senator from Alabama (Mr. Sessions). Further, if present and voting, the Senator from Alabama (Mr. Sessions) would have voted ``yea.''

Mr. KYL

Mr. KYL. Mr. President, there is, and I would like to make a brief statement. The majority leader's long unanimous consent agreement pertains to an important bill that the President would like to get passed through this body. I think there is strong support for a bill along these lines. The consent itself, if one listened carefully, contains quite a few restrictions on the number of amendments, the time for debate, and so forth. Since there are ongoing negotiations--I am personally involved in some of them--with regard to provisions of the legislation, the unanimous consent agreement is too restrictive at this time. I would hope that we could work out an agreeable substance of the provisions as well as an agreeable procedure at a subsequent time. In fact, I think if we can reach an agreement on the substance, the procedure will be very easy to work out.

Mr. KYL

Mr. KYL. The following Senators are necessarily absent: the Senator from Minnesota (Mr. Coleman), the Senator from Nevada (Mr. Ensign), the Senator from South Carolina (Mr. Graham), the Senator from New Hampshire (Mr. Gregg), the Senator from Arizona (Mr. McCain), the Senator from Alaska (Ms. Murkowski), the Senator from South Dakota (Mr. Thune), the Senator from Louisiana (Mr. Vitter), and the Senator from Mississippi (Mr. Wicker). Further, if present and voting, the Senator from Minnesota (Mr. Coleman) would have voted ``yea.''

Mr. KYL. I move to reconsider the vote and to lay that motion on the table. The motion to lay on the table was agreed to.

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

Mr. KYL

Mr. KYL. The following Senator is necessarily absent: the Senator from Arizona, (Mr. McCain).

Mr. KYL. Madam President, I wanted to note that what Senator Specter said a moment ago about Arizona judge Murray Snow are my feelings as well. He has been nominated to the Federal bench in Arizona. He is supremely qualified, unanimously ``well-qualified,'' according to the Bar Association, and a fine appellate court judge already. He will make a fine addition to the Federal bench. I will have an additional statement so all of my colleagues will know about his superb qualifications. We will be voting for him soon. I assume he will be approved. I appreciate my colleagues' support for his nomination. Judge Snow has served on the Arizona Court of Appeals since 2002. Prior to his judicial service, he was a partner at Osborn Maledon. Judge Snow received his bachelor's degree magna cum laude from BYU in 1984 and received his law degree magna cum laude from BYU in 1987. He was Order of the Coif. After law school, Judge Snow clerked on the Tenth Circuit for Judge Stephen Anderson. Judge Snow was an adjunct professor of political science at ASU 7 years. He served for 4 years on the State Bar of Arizona Ethical Rules Review Group and for six years on the Committee on Rules of Professional Conduct. The ABA unanimously gave Judge Snow its highest rating of ``well-qualified.''

Mr. KYL

Mr. KYL. The following Senator is necessarily absent: the Senator from Arizona (Mr. McCain).

Mr. KYL. The following Senator is necessarily. absent: the Senator from Arizona (Mr. McCain).

Mr. KYL

Mr. KYL. Mr. President, I don't understand why this has to be characterized as a partisan issue as my colleague from Illinois has done. He said there is a proposal to cut doctors' pay. There is no such proposal. Nobody wants to cut physicians' pay. In fact, I daresay all 100 Senators here are in support of ensuring that physicians get paid an increase in the pay next year from what they are paid this year. What happens is that the law provides an automatic pay cut so we have to pass a bill to prevent that automatic pay cut from taking effect. I am on the Finance Committee. A few weeks ago Senator Baucus, the chairman of that committee, who has a long history of working with Senator Grassley regardless of which party is in the majority, proposed that we work in a bipartisan way to draft a bill to ensure the physicians would be paid. Those discussions commenced. They produced a bipartisan agreement. Then, before that agreement was brought to the Senate floor, the majority announced it wanted instead to substitute a partisan bill that we would seek to consider on the Senate floor. We had a cloture vote on that bill and it failed to get cloture. My colleague says he hopes Republicans will not vote in lockstep. I can assure my colleagues here Republicans will not vote in lockstep. Democrats will vote in lockstep. There will not be a single Democrat who votes differently. Republicans will be divided. If this is a partisan issue, it is only a partisan issue because Democrats will vote in lockstep and because the Democrats insisted on bringing a partisan bill to the floor. That was rejected, so Senators Baucus and Grassley returned to their negotiations. Again they were about done with those negotiations 2 days ago when the House scheduled a vote on its own bill and that bill passed. Again that upset the bipartisan discussions that were occurring here in the Senate. As a result, the majority leader decided to bring the House bill to the Senate and ask us to support the House bill. Again, the negotiations stopped. The vote we are going to have today will either allow the Baucus- Grassley negotiations, bipartisan negotiations, to be completed or send a bill to the President which he will veto--meaning a great deal of time will be lost by the time that bill gets to the President, he ends up vetoing it, he sends it back to the Congress and we presumably sustain the veto. Then what happens after that? Bipartisan negotiations resume. We can cut out all of that political folderol by simply returning this bill to the people who were negotiating it in the first place. Either way, July 1 will come with no solution. That is a problem for the physicians. The veto route virtually assures that physicians will feel the impact of a 10.6 percent cut in payment because of the amount of time it will take for us to complete our work. On the other hand, if cloture is defeated and the bipartisan negotiations can quickly resume, then, depending upon when we could pass something after July 4, it is possible that the reimbursement checks could reflect the new rates without the cuts ever being applied. If you are interested in a truly bipartisan solution in a body that is 51 to 49, if you are interested in minimizing the potential impact on physicians, do not vote for the House bill that we know will never become law. Let me conclude with this point. The House bill makes some radical changes in Medicare. It doesn't just reimburse physicians; it increases Medicare spending by $17 billion over 10 years. It makes larger cuts to Medicare Advantage, the highly successful insurance program for America's seniors. This will minimize patient choice in both rural and urban areas and, according to the Congressional Budget Office, 2 million seniors would lose their fee-for-service plans by the year 2013 under the House bill. It would significantly restrict Part D plans' ability to negotiate prescription drug prices. We can do better than this. We should return to the bipartisan negotiations and pass a truly bipartisan bill which will ensure that physicians will be paid and Medicare patients will be served.

Mr. KYL. The following Senator is necessarily absent: the Senator from Arizona (Mr. McCain).

Mr. KYL

Mr. KYL. Mr. President, I rise to say a few words about the impending passage of H.R. 5690 and my amendment to that bill. My amendment narrows the individualized waiver provisions in the bill by excluding from waiver eligibility persons who are convicted of controlled- substances offenses and those for whom there is reason to believe that they will engage in terrorist activity after entry into the United States. The amendment also requires that the activities for which waiver is sought have been conducted ``in association with the African National Congress.'' With my amendment, the bill's grant of authority does not exceed that created by section 691 of the Consolidated Appropriations Act, 2008, on which I commented on December 18 of last year. Separate legislation is not needed to exempt Class III groups that are eligible for a waiver under section 691, a class that surely includes the African National Congress. I hope that in the future such matters will be addressed administratively rather than legislatively. Nevertheless, by enacting today's bill we impress upon the executive the importance of exercising that authority in a prompt and thorough manner. We trust, of course, that the executive will not use such authority to grant waivers to persons who, for example, engaged in violence that was deliberately targeted at innocent civilians. But we do expect the relevant agencies to act to avoid the diplomatic embarrassments of the past. With the changes made by my amendment, I commend H.R. 5690 to my colleagues.

Mr. KYL

Mr. KYL. The following Senator is necessarily absent: the Senator from Arizona (Mr. McCain).

Mr. KYL

Mr. KYL. The following Senator is necessarily absent: the Senator from Arizona (Mr. McCain).

Mr. KYL

Mr. KYL. The following Senators are necessarily absent: the Senator from Colorado (Mr. Allard), the Senator from Kansas (Mr. Brownback), the Senator from Oklahoma (Mr. Coburn), the Senator from Oklahoma (Mr. Inhofe), and the Senator from Arizona (Mr. McCain).

Mr. KYL

Mr. KYL. The following Senators are necessarily absent: the Senator from Missouri (Mr. Bond) and the Senator from Arizona (Mr. McCain).

Mr. KYL

Mr. KYL. Mr. President, I rise today to speak in favor of the passage of the FISA Amendments Act of 2008. This is a law that our Nation needs. The most important change made by the pending bill is to allow immediate and real-time surveillance of overseas targets as soon as they become apparent in the course of a foreign- intelligence investigation. FISA had never been intended to block surveillance of such targets, but a 2007 FISA court decision interpreted FISA to apply to even foreign-to-foreign communications that are routed through the United States. Because of changes in technology and U.S. dominance in the telecommunications industry, even phone calls from Afghanistan to Pakistan could be routed through the United States. As a result, a FISA order could be required before communications between two suspected al-Qaida members outside the United States could be monitored. This system made overseas surveillance a practical impossibility in many cases and caused valuable intelligence to be lost. Our best tool against al-Qaida and other terrorists is intelligence; it is absolutely critical that we gather whatever intelligence is available. In the summer of 2007, Congress enacted a 6-month restoration of U.S. agents' surveillance capabilities with the Protect America Act. Today-- over 4 months after the PAA expired--Congress finally acts to extend this surveillance authority for another 4\1/2\ years. I am heartened to note that the Attorney General and the Director of National Intelligence both strongly support this bill and believe that it provides them with the tools they need to gather intelligence about America's foreign enemies. Critically, this bill allows immediate and real-time surveillance of foreign targets located overseas whenever the Justice Department and the intelligence community find that, without immediate surveillance, ``intelligence important to the national security of the United States may be lost or not timely acquired and time does not permit the issuance'' of a court order prior to such surveillance. This provision, in a new section 702(c)(2) of FISA, addresses the exact problem that intelligence agencies faced in 2007. Congress expects our intelligence agents to use every tool that is technologically available to monitor al-Qaida and those associated with it. With this reform, we make such surveillance possible. I also think that it is important that, in new section 702(i), the FISA Amendments Act allows pending surveillance certifications to be immediately amended to allow surveillance of new targets related to or growing out of previous surveillance. This should help to reduce the paperwork burden of FISA, allowing our agents to focus more time on monitoring the enemy and less on filling out forms. Also, the judicial review authorized by this section is appropriately limited and recognizes the intelligence community's primary role in deciding what foreign targets to monitor. The court's role is limited to reviewing whether certifications are procedurally proper and are accompanied by reasonable procedures to limit potential impact on U.S. persons. Thus, courts could block any obviously bad faith or improper use of foreign surveillance that might affect U.S. persons, but courts will not be second-guessing intelligence judgments, and should not be imposing procedures or making demands that will consume intelligence resources and divert agents from their primary mission. This limited role should also allow the FISA Court to decide these cases very quickly, minimizing the burden on both the intelligence community and on those judges who are assigned to the FISA Court. I should also note that this bill contains important provisions that will allow all of the lawsuits against telecommunications companies to be dismissed upon certification by the Attorney General. Foreign intelligence surveillance is a matter that our Constitution entrusts to the executive in consultation with Congress, not to private litigants and the judiciary. These lawsuits all should have been dismissed immediately; this bill will finally produce that result. Title II is a critical part of this bill that should have been enacted long ago. Frankly, I find it odd that much of the early criticism of this bill has been directed at this of all provisions. Those who are opposed to the President's efforts to monitor al-Qaida's communications after 9/11 should take their argument to the President, not to the private companies that patriotically complied with government requests to help this country. Monitoring of al-Qaida's electronic communications cannot be conducted without the cooperation of private companies. The general rule that private citizens acting in good faith to assist law enforcement are immune from suit has deep roots and serves important public policies. As Justice Cardozo noted in the 1928 case of Babbington v. Yellow Taxi Corporation, the rule ensures that ``the citizenry may be called upon to enforce the justice of the State, not faintly and with lagging steps, but honestly and bravely and with whatever implements and facilities are convenient and at hand.'' Finally, I should note that this bill's so-called ``exclusive means'' provision, like the similar provision in the 1978 FISA, is hortatory verbiage that obviously yields the Constitutional authority of the President. The FISA Court of Review, in its 2002 decision in In re Sealed Cases, made the point: The [Fourth Circuit in the Truong case], as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. . . . We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power. Indeed, every administration since FISA was enacted--including the Carter administration--has concluded that Congress cannot take away the President's power to monitor foreign enemies of the United States without a warrant, and that to the extent that FISA purports to do so, it is unconstitutional. The Constitution's framers vested the executive with primary responsibility and authority to protect the United States from foreign attack. Section 102 repeats FISA's ``exclusive-means'' claims, yet provides in the same section of the bill, at subsection (c), an amendment to the immunity provisions for electronic communications service providers in 18 U.S.C. 2511(2) to require that certifications conferring immunity identify the ``specific statutory provision'' that allows the surveillance, but only if the certification ``for assistance to obtain foreign intelligence information is based on statutory authority.'' This provision, in the same section making claims of exclusive means, acknowledges that not all surveillance is based on statutory authority, but may, instead, be based on the executive's constitutional authority. If this nation again finds itself under attack as it did on September 11, those in charge of our security should not conclude from the exclusive-means language in section 102 that they may not act in any constitutionally appropriate way to protect this country. Finally, the ``sunset'' provision in section 403, which will repeal the authorities in the bill at the end of 2012, is problematic. As the Attorney General and the Director of National Intelligence have said: ``[t]he Intelligence Community operates more effectively when the rules governing our intelligence professionals' ability to track our enemies are firmly established.'' The need to modernize FISA has been extensively debated since 2006, including numerous hearings, briefings, and floor debates that ``involved the discussion in open settings of extraordinary information dealing with sensitive intelligence operations.'' As the Attorney General and the Director of National Intelligence have pointed out, ``[e]very time we repeat this process it risks exposing our intelligence sources and methods to our adversaries.'' Despite these flaws, the bill before us is needed. It is very similar to the bill that the Senate passed earlier this Congress and on which the House refused to act. It has passed the House by a 3-to-1 margin, and I expect that we will see a similar margin in the Senate, as the bill already appears to have gained the support of some Senators who opposed last year's bill. I look forward to the passage of this bill.

Mr. KYL

Mr. KYL. Madam President, reluctantly, on behalf of Senator DeMint, I will object at this time. I expect--I know the majority leader has talked with our staff, as well--the issues that are relating to this can be worked out in a relatively--obviously, before the end of this week, we hope.

Mr. KYL

Mr. KYL. Mr. President, I ask unanimous consent that at the conclusion of my remarks and potential remarks from the Democratic side that the Senator from Alabama, Mr. Sessions, be recognized.

Mr. KYL. Over the last week on our side, we have listened to some of our colleagues suggest that Republicans have obstructed action on important matters here. I want to ensure that with respect to protecting our seniors through the service of the Medicare physicians who take care of them, that we are able to meet a deadline on the statute which expires at the end of this month to ensure they continue to be paid. One of my colleagues yesterday said Senate Republicans had refused to give Senate Democrats the opportunity to ensure quality health care for American seniors. Yet following those remarks, the minority leader propounded two unanimous consent agreements which would have permitted us to move forward to consider two bills that would preserve Medicare beneficiaries' access to care.