Jay Rockefeller

Mr. ROCKEFELLER

Mr. ROCKEFELLER. I will.

Mr. ROCKEFELLER. Mr. President, with the goodwill of the vice chairman, he has granted me a couple of moments to enter a couple documents in the Record. We have had several good days of debate or good hours of debate on the FISA bill going back to before the recess. I guess that would be several months. In the course of a discussion of a bill as lengthy and complex as this, several arguments have been made that warrant response, but there isn't always time to give the response. In the interest of establishing an accurate legislative history to accompany the bill, as manager of the bill, I ask unanimous consent to print in the Record a statement providing such clarifications and corrections.

Mr. ROCKEFELLER. I would say to my distinguished friend from Pennsylvania that Judge Walker's case is not, under any circumstance, going to be stopped by whatever happens here. It will not happen, and it will, therefore, continue. The bill only addresses cases against carriers, is the point I was trying to make. Judge Walker--his case is a case against the Government. This bill is not against the Government. It is against what happens to the carriers, or in this particular case whether they get liability. The Government is not the point. The carriers are the point. The case continues, and we have not intervened in a malicious or malevolent way.

Mr. ROCKEFELLER. I wasn't talking about special expertise--I was talking about: We have not talked about the threat.

Mr. ROCKEFELLER. I will just reply very briefly with three points, and when you are finished, I would like to yield to--or hopefully the vice chairman will yield to the senior Senator from Virginia. The one point is that this is not a bill we are addressing here about the Government. We are doing it about carriers, and particularly in title II. Secondly, I am interested in what the ranking member of the Judiciary Committee feels might be the result if we went the Judge Walker route regardless of its inapplicability, in my view, to this situation when it went through the appeal process. I am not a lawyer. Right now I wish I were, but I am not. Usually, I am glad I am not. But it seems to me that you would be looking at a period of appeals going right on up to the Supreme Court that might last 3 or 4 years. I am not experienced in how long these things take. But this is a matter that might take that kind of time and that causes me to raise again the question I have raised several times with the vice chairman this afternoon: The only thing that we appear to be discussing in the Senate is rights and liberties. I think I have yet to hear almost any word about the security of the Nation and what the purpose of the Intelligence Committee is, what the purpose of intelligence is, what the purpose of collection is, how the collection is done, who does it, how important is it to how we gauge our situation in the world, where we need to deploy, where we need to be watching. This is extraordinarily serious stuff but not a word does it get in the Senate, which is two-thirds made up of lawyers--and I honor every one of them. But we are picking at ``would the Constitution allow'' this or that. I am looking at something which to me is very clear. This is all about carriers, this particular bill. My name isn't Judge Walker. I haven't issued the opinion. If my name were Judge Walker, and it was an opinion, it would be about constitutionality. We are not addressing that in this bill. The Senator earlier said: Look, we are here. Why not duke it out and get all the substitutes and arrangements and compromises back on the table again. I know that does work in some fashion. But I think the vice chairman and I and our staffs could say that what was achieved over the last month or so could probably never be achieved again, which is to get the House to agree. John Conyers is chairman of the Judiciary Committee, who was gracious and polite but unfriendly to this bill. There is the question of the Blue Dogs. You can say always these are questions--on farm bills, on steel bills, on automobile bills, on whatever bills. This is a particular type of emergency based upon the fact that we are still, under my definition, under attack. Not that we have not been attacked, but we have been able to interdict, because of intelligence, some of those attacks--or all of those attacks. This is a very different matter than running an ordinary piece of legislation through the Senate. If 20 or whatever Judiciary plus Intelligence is in the Senate--35, whatever that is. No, because there are some cross-memberships. Let's say 20. Understand, the others have not been read in. I have said they could have found out the information that has been available for a full year. Any Senator has the ability to go and read intelligence, if they wish to do that. It sort of implies that the Senate, as a matter of habit, comes to full agreement and full understanding that 80 out of 100, as opposed to 20 or 25 out of a 100, fully understand what is at stake in the amendments to a bill and then to the final passage of a bill. I think the Senator knows that is not the way it works. I think the Senator, although he says we should not delegate, knows we delegate all the time.

Mr. ROCKEFELLER. Mr. President, I ask Senator Bond, the vice chairman of the committee, to yield me 10 or 11, potentially even 12 minutes.

Mr. ROCKEFELLER. If the Senator from Rhode Island would give me 30 seconds, I would be grateful.

Mr. ROCKEFELLER. I appreciate my colleague yielding me time. Mr. President, Senator Bingaman, who I greatly respect in all ways, has offered an amendment altering the liability protections of title II. That is it. His amendment would postpone the implementation of the liability provisions of the bill until 90 days after the submission of the final report of the inspectors general required under title II. Now, I appreciate the Senator's desire to have more information out there. But I want the Senator to contemplate, and the Senate as a whole to contemplate, what we are asking. We are talking about a year for the inspectors general to complete their reports. Does it really work that way? Is it really a flat year? Are we going to send out Federal marshals to have them all do their reports on the exact day? Probably it will stretch a little bit. Maybe it will not; maybe it will. But you cannot assume it will not. Then you have to add on 90 days. Then you can get to the question of the immunity. I am really baffled by that because what it, in effect, says is, we are almost certainly going to be going through a period of something, which I have not heard discussed today during this entire debate, and that is the actual collection of intelligence that involves highly classified material of a foreboding nature for a long period of time until the Senator from New Mexico and/or the Senate can be convinced that it is worthwhile to give immunity or to understand this program. Now, I want to make an even more basic point: By inserting this amendment, requesting this amendment be passed, I hope the good Senator does understand that he is undoing a very carefully calibrated compromise between the Senate-passed bill and the House-passed bill that is on title II, taking months and months of negotiations to get to the point where Speaker Pelosi, for example, who was violently against the bill, and title II in particular, and Steney Hoyer, who was very much against title II, the immunity portion of the bill, where they could say, on the floor of the House: We think sufficient progress has been made in the negotiations that we will vote for this bill, which the House did by about 70 percent. Now, that is going from the House not even considering title II. I mean, they considered and rejected it. It was a sea change. It was a sea change, and one has to have been there to see how the change took place, the good faith bargaining on the part of Vice Chairman Bond, myself, our mutual staffs, working with the DNI and others, long hours and long days with which we have arrived at something which, if we pass this today, will go to the President to be signed. If we accept this amendment or, for that matter, accept the Specter amendment that follows, it will have to go back to the House, which will not take it up, which will not consider it, which will undo everything, and there will be no bill. Is that important? Yes, it is. Why is it important? Because the chance of not being able to collect on extremely foreboding matters around this world will come to a halt, either because the PATRIOT Act terms have expired or because the companies will withdraw in disgust. In any event, the bill would be vetoed, as the vice chairman said. So it would be the end of the bill. Therefore, I oppose this amendment. As I will say about each of these amendments--well, I just did--it undoes everything that has been done for the purpose of making a perfecting amendment to satisfy a particular need of a particular Senator. I also must oppose this amendment because there is no reason for delaying the liability protection provisions. There is not a sufficient reason. It is true the Select Committee struggled to get access to details about the President's surveillance program for many months, but in the end we succeeded. We went from maybe eight, more likely four, sometimes six, to all four committees in the House and the Senate, Judiciary and Intelligence. We heard the necessary testimony. We went to the EOP. We read all the documents, and our chiefs of staff were allowed to do the same thing. We read the legal reasoning used to justify within the executive branch and the role of the private sector. We did all of that, not only our committee but also the House Intelligence Committee, and both Judiciary Committees spent considerable time looking at this issue. I am satisfied we have a basis for taking action now. On national security grounds, we have to, in my judgment. We haven't talked about that today. We have talked about refined points of constitutional niceties and all the rest of it. I don't denigrate that, but there is something called the protection of the Nation. I take that very seriously. I take that very, very seriously. So a form of liability protection has passed the Senate and the House of Representatives a total of three times, once in the Senate and twice in the House. We should not now reverse these actions by passing the provisions of suspension. Let me be clear. I strongly support the requirement in this bill for a comprehensive review of the President's surveillance program by the inspectors general. They will be very tough and very thorough and embarrass a lot of people. A report on their general review is one of the best ways to inform the American people about the facts. Litigation is an imperfect mechanism to bring facts to the public, rather a terrible mechanism, because of something called the State secrets privilege which is involved, which means the people can't know anything, that a lot of people dealing with the court can't know anything, that the companies can't know anything. It is a closedown. People have to understand that. It is not an open court. You are not getting a traffic ticket. It is a highly complex, nuanced matter which is rigidly guarded by rules. You could argue the rules, but there they are. Unfortunately, if this amendment passes, the fact that litigation is still pending may have the effect of limiting the amount of information that will be released to the public in the report of the inspectors general, the opposite of what the distinguished Senator wants. Certain facts that might be releasable if the litigation were resolved might be held back, if the Government anticipated a continuing need to assert the State secrets privilege in litigation, which it would. It is also important to note that this amendment, if it were to pass, the liability protection provisions that the Senator is trying to get at would not go away. In other words, if his amendment passed and we took this long delay, nothing would affect the progress of the liability legislation and that possibility. So it is an amendment which doesn't accomplish anything. The provisions would still go into effect after 90 days, unless new legislation is passed. Let's hope that doesn't happen. The new Congress, thus, might be launched into a contentious debate next summer, instead of working with the new President on a new agenda. That is the point of the Cardin amendment, that the date was changed to December 2012, so that the next President, whoever it might be--it is very close--will have a chance to review and perhaps act upon what we have done here in the next term, which is good. I urge defeat of the amendment. I have one more thing to say, with the indulgence of my colleague. The senior Senator from Pennsylvania and I were engaged in earlier debate over the access Senators have had, both with myself and with the vice chairman, to the Government letter sent to the telecommunications companies requesting their cooperation during the period of 9/11 to January of 2007. The Senator from Pennsylvania lamented the fact that these documents were kept to only the members of the Intelligence and Judiciary Committees and not shared with the full Senate. I share the view of the Senator that these documents should be viewed by all Senators, and I have advocated this very position to senior officials of the Bush administration for many months. But recognizing the administration's unwillingness to extend this access, the Senate Intelligence Committee did the next best thing. We were able to get declassified the relevant facts upon which the committee and, ultimately, the full Senate reached the judgment that a narrowly drawn immunity bill remedy might be appropriate. For the record, our committee report, 110-209, accompanying S. 2248, the FISA amendments----

Mr. ROCKEFELLER. Madam President, Senator Specter has offered an amendment altering the liability protections of title II. His amendment would require the district court to assess the constitutionality of the President's warrantless wiretapping program before it could dismiss cases against telecommunications companies that met statutory requirements for liability protection. Although I appreciate the Senator's desire to ask the court to address the constitutionality of the President's program once and for all, he has picked the wrong mechanism to ask the court to answer his question. First, Senator Specter's amendment would completely undermine, as I said before, the delicate compromise in front of us today. People say: Well, we are freshly back in town, newly minted, widely open. I am sorry, this was a bill which just got through on a thread, and it will probably get close to 70 votes, a compromise already accepted by the House with 70 percent of their votes, and I think that balances the protection of liberties and also does something I have stated I think is rather important; that is, it allows the collection of intelligence to continue in order to protect the United States of America. Senator Specter's amendment also would require the court to consider a difficult constitutional question that otherwise would not be at issue in the cases. Title II does not cover cases against Government actors. This exclusion was intentional. Cases against the Government for any unlawful or unconstitutional actions Government actors may have undertaken should be allowed to proceed. Arguments over the constitutionality of the President's actions can and should be litigated in those proceedings. The amendment, however, injects this complicated constitutional question about the interplay of the fourth amendment and separation of powers into cases requesting civil damages from private companies. The amendment does not require that there be a relationship between the companies and this constitutional question. It does not ask whether the companies were aware of the scope of the President's program, nor does it ask whether the companies' actions were done in good faith or even whether they were legal. Indeed, if the court finds that the President's program violated the Constitution, the cases against the company will not be dismissed even if that company had no involvement in the unconstitutional components of the President's program. Madam President, this is simply unfair. A company should not be subjected to liability solely because the Government acted unconstitutionally. A company should not be subjected to liability solely because the Government acted unconstitutionally. Any accountability and liability should be based on actions of the company, which is what title II is about. Imposing this barrier to liability protection is also inconsistent with our expectation about the role companies are expected to play when they receive Government requests for information. Our existing statutory approach is based on the idea that the Government requires prompt cooperation from the telecommunications companies. Although we expect those companies to seek documentation from the highest levels of Government, they are not expected to assess the constitutionality of particular requests on which they lack, to say the least, complete information. The ongoing litigation is complicated by classified information issues that make it virtually impossible for the cases to move forward. But if the cases could proceed without regard to the classified information at issue, the court would not consider the question of whether the President's program was constitutional. Instead, it would ask whether the companies were entitled to immunity based on existing law. In addition, a case against any particular company is necessarily limited to the facts relevant to that company. The court would, therefore, not be provided a comprehensive look at the President's program in any of those cases. We should not ask the district court to assess whether the President's program is constitutional when the answer to that question is unnecessary to resolve the underlying litigation between the plaintiffs and the carriers, and the court does not have sufficient facts to address that far-reaching question of constitutionality. We are talking about apples and oranges, but it is apples here that we are concerned with. I urge my colleagues to oppose this amendment.

Mr. ROCKEFELLER. My point.

Mr. ROCKEFELLER. I yield as much time as the Senator requires.

Mr. ROCKEFELLER. I also point out, there was an op-ed piece in support of the FISA bill in today's New York Times which I call to the attention of my colleagues. It was written by Mr. Morton Halperin and entitled ``Listening to Compromise.'' Mr. Halperin, in addition to being executive director of the Open Society Policy Center, has a lengthy career of public service in both Democratic and Republican administrations. Mr. President, I ask unanimous consent to have printed in the Record Mr. Halperin's op-ed in support of the bill as it appeared in today's New York Times.

Mr. ROCKEFELLER. May I respond to the Senator's observation?

Mr. ROCKEFELLER. Yes.

Mr. ROCKEFELLER. And dated October 26, 2007, includes a lengthy declassified explanation of the committee's review and conclusions as well as a description of the representations made by the Government in the letters sent to the companies during the period of time covered by the bill. So for the past 8 months, this public report has been available not only to all Senators--here it is, I have labeled it, pages 8 through 12, right here--but to the general public as well. I ask unanimous consent that that portion be printed in the Record.

Mr. ROCKEFELLER. I ask unanimous consent for 1 additional minute.

Mr. ROCKEFELLER. I hope very much that the Senator's amendment will be defeated. I thank the Chair.

Mr. ROCKEFELLER. Mr. President, I thank the Presiding Officer and yield the floor.

Mr. ROCKEFELLER

Mr. ROCKEFELLER. Mr. President, my colleagues have submitted two amendments seeking to accomplish somewhat the same goal before, and in a sense now down to one. Senators Dodd and Feingold have an amendment to strike title II of the FISA bill. It is very plain and simple, and they are very clear about that. The amendments have the same effect-- eliminating the title that provides a mechanism for a U.S. district court to decide whether pending suits against telecommunications companies should be dismissed. Two other amendments with respect to title II, to be offered by Senator Specter and Senator Bingaman, will follow. While I address those amendments in separate statements, I would like to say now with respect to the amendments that I oppose each of them and I urge that the Senate pass H.R. 6304 without amendment so that the delicate compromise which serves as best it can to protect both national security and privacy and civil liberties can, in fact, become law. Six and a half years ago, instead of consulting with Congress about changes that might be needed to FISA, the President made the very misguided decision to create a secret surveillance program that circumvented the judicial review process and authorization required by FISA and was kept from the full congressional oversight committees. That is calling it running around the end altogether. We are right to be angry about the President's actions, but our responsibility today is to look forward. That is what this bill is about, to make sure we have adequately dealt with the numerous issues that have arisen from the President's very poor decision, bad decision. The bill in front of us today accomplishes three important goals with respect to the President's warrantless program. First, the bill establishes a sure and realistic method of learning the truth about the President's program--I repeat, learning the truth about the President's program. It requires the relevant inspectors general--that is a term of art. What I mean by that is the inspectors general of the CIA, DOD, NSA, et cetera, people who oversee and know what is in this program altogether--to submit an unclassified report about the program to the Congress. This report will ensure that both Congress and, by the way, therefore, obviously, the public will have as complete a picture of the President's warrantless surveillance program as possible or as messy as it may be for them to ingest. Second, the bill tightens the exclusivity of the FISA law, making it improbable for any future President to argue that acting outside of FISA is lawful. That is huge. That means the President can never again, ever use what he has used--his all-purpose powers--and say he can just walk right around the end of FISA. He has to have a statutory authority, it has to come from us, and he cannot bypass FISA as he did altogether. Third, the bill addresses the problems the President's decision has caused for the telecommunications companies that were told their cooperation was both legal and necessary to prevent another terrorist attack. They were not told a lot, but they were certainly told that. The bill does not provide those companies with a free pass. It requires meaningful district court review of whether statutory standards for protection from liability have been met for the companies having relied on the Government's written representations of legality. You remember there was a period when we were using the FISA Court to make these kinds of judgments, and we bent to the better wisdom of the House with respect to the district court, which is a more public court. So they have that responsibility. All of these pieces fit together, and not just because they are part of a larger compromise on this bill. Private companies that cooperated with the Government in good faith, as the facts before the congressional intelligence committees demonstrate they did, should not be held accountable for the President's bad policy decisions. But if the court ultimately dismisses the litigation against those companies, it is important that there be a mechanism for public disclosure about the President's program, and it is precisely, therefore, in this bill that the inspectors general report, which has to be provided to us within a year, provide that public accountability. Likewise, we can only put past actions behind us if we can be reassured that this will not happen again, and therefore the strength in the exclusivity language in the FISA bill addresses that concern. That it does. Together, the three components of the bill provide accountability for the mistakes of the past as well as a way to move forward. Although title II in the bill before us today differs in important ways from the title II we passed out of the Senate this past February, the two bills address the same underlying problems faced by the telecommunications companies. Because the majority of the information in the cases is classified, there has been no substantial progress in the cases against the telecommunications companies--several of them have been going on for years. Classified information, they can't have it; state secrets, can't have it. The Government has not even allowed the telecommunications companies in the many pending lawsuits to disclose publicly whether they assisted the Government. These companies, therefore, have not been permitted to invoke the defense to which they are entitled. But sued they are. The companies cannot reveal, for example, whether they did not participate in the program. That would be a false accusation against some company, but they cannot say that they didn't participate or that they only participated pursuant to a court order--they can't talk about that--or participated in reliance on written Government representation of legality--cannot talk about that. The bill before us today allows these defenses to be presented to the district court, the public court--not the FISA Court, which is kind of a secret court, but to the district court, which is not a secret court. It is a public court. The Attorney General is authorized to certify to the court that particular statutory requirements have been met without requiring public acknowledgment of whether particular providers assisted the Government. The bill then requires the district court to determine whether the Attorney General's certification is supported by ``substantial evidence.'' That is a higher, tougher standard than the ``abuse of discretion'' test we had in the Senate bill. In making this assessment, the district court is specifically authorized to review the underlying documents on which the Attorney General's certification is based. The court can, therefore, ``review any court orders, statutory directives or certifications authorizing providers' cooperation.'' Importantly, the court may also review the highly classified documents provided to the companies indicating that the President had authorized the program and that it had been determined to be lawful. Explicitly allowing the court to base its decision on whether companies are entitled to liability protection on relevant underlying documents is an important improvement to the bill, and I am happy it is in it. Because such documents would be classified, any review of those documents in the litigation prior to this bill would have been limited to a court assessment of whether the documents were privileged. The court could not have relied on what the Government's communications to the providers actually said in making its assessment about whether the cases should be dismissed. The court could not have relied on what those Government communications said--it is different. This bill before the Senate, therefore, gives the district court both an important role in determining whether statutory requirements for liability protection have been met and the tools to make that assessment. The FISA bill also provides a more explicit role for the parties to the litigation--this is new and better--to ensure that they will have their day in court open--sort of, and so to speak--but they will have their day in court. But they will have their day in court. They are provided the opportunity to brief the legal and constitutional issues before the court and may submit documents to the court for review. Whatever it is they want to submit, they can submit. A few of my colleagues have argued that including any sort of mechanism that would allow the district court to resolve these cases will prevent the public from hearing the details about the President's program. But even if the litigation were to continue indefinitely, it would never tell the full story. Lawsuits have now been pending for, as I indicated, over 2 years. The fight during all that time, and the likely fight in the future, has been about whether the plaintiffs will have access to any classified information about the program. The plaintiffs in the litigation, they have never been and will never be provided with wide-ranging information about the President's classified program that would enable them to put together a comprehensive picture of what happened. This capability is reserved for those who have complete access to information about the program. And that again is why I come back to the importance of the inspectors general aspect of this oversight. You can say: inspectors general, them and their reports. Well, inspectors general can take apart their agencies, and they are sort of in there to do that. That is why we have asked the inspectors general of these relevant intelligence agencies, including the DOD, who do, in fact, have complete access to information about the program, to conduct a comprehensive review of that same program, the whole thing. The FISA bill requires a report of the review be submitted to the Congress in a year and requires that the report, apart from any classified annex, be submitted in an unclassified form that can be made available to the public. That is not a dodge, that is simply a fact. You cannot release classified information to the public. So this is an appropriate way to obtain answers to questions about the President's program and ensure the public's accountability. Critics have also claimed that granting immunity will suggest to the telecommunications companies that that compliance with the law is optional or that Congress believes that the President's program was legal. An examination of the bill that is before us in the Senate would make it impossible for anyone to come to either conclusion. The administration made very strained arguments to circumvent existing laws in carrying out the President's warrantless surveillance program: a claim, for example, that the 2001 authorization for use of military force was a statutory authorization for electronic surveillance outside FISA, even though that authorization did not mention electronic surveillance. What role did we expect telecommunications companies to play in those assessments of legality? To answer that question, we must consider the legal regime under which these companies were operating. Numerous statutes over the years have stressed the importance of cooperation between the telephone companies and the Federal Government, particularly in times of emergency. This has a fairly long history. FISA itself allows the Attorney General to authorize electronic surveillance for short periods of time in emergencies prior to the submission of an application for an order. The law, as it existed in 2001 and as it exists today, grants immunity to telecommunications companies, based solely on a certification from the Attorney General that no warrant or court order is required by law, that the statutory requirements have been met, and that the specified assistance is required. Given the need for speedy cooperation in times of emergency, Congress has never asked companies to question the Government's legal analysis that their cooperation is legal and necessary. Thus, although the telecommunications companies have always been and will always be expected to comply with the law, Congress has told them, prior to 2001, that they were entitled to rely on representations from the highest levels of Government as to what conduct was legal. That is the way it worked. In the case of the President's surveillance program, representations of legality were made to providers from the very highest levels of Government. The FISA bill before the Senate, therefore, eliminates any possible loopholes in existing law, ensuring that neither the telecommunications companies nor any future Presidents have any doubt about what is required to comply with the law. It strengthens the exclusivity language of FISA--I have mentioned that, I do again--making it absolutely clear that the Congress does not intend general statutes to be an exception to FISA's exclusivity requirements. In other words, no future President can therefore claim that an authorization for use of military force allows the Government to circumvent FISA. Even more importantly for the telecommunications companies, the bill before us makes it a criminal offense to conduct electronic surveillance outside of specifically listed statutes. Unlike existing criminal and civil penalties which exempt electronic surveillance that is authorized by statute, the bill puts telecommunications companies on notice that any electronic surveillance outside FISA or specifically listed criminal intercept provisions, in the future, is a criminal offense that is subject to civil penalties for claims brought by individuals who are free to do so. This clear language provides no room for any future President or Attorney General to argue that criminal and civil penalties should not attach for any circumvention of FISA. Now, the improvements to this bill address many of the concerns raised with the possibility that the court might dismiss the lawsuits against the telecommunications companies. The bill before us makes clear that Congress expects compliance with the laws, and it assures that public accountability is on the Government, where it belongs, and not on the companies that acted in good faith in cooperating with the Government. It is important to say that whatever the inspectors general come up with in their analysis of this, and believe me, they will be under the gun to do it right, that they have to report that, both unclassified and classified, to the Intelligence Committees and the Judiciary Committees in both Houses. So the oversight factor again comes in. I think it is time to pass this bill and move forward. I urge my colleagues to oppose the Dodd-Feingold amendment.

Mr. ROCKEFELLER. Of course.

Mr. ROCKEFELLER. First of all, I should point out to the distinguished Senator from Pennsylvania that there was a period when members of the Intelligence Committee, members of the Judiciary Committee, were not even able to go to the Executive Office Building to look at any of the orders that came down, President to Attorney General to National Security Advisor, then a letter to the companies. We were not allowed to do that. The chairman and the vice chairman were allowed to do that. Nobody else was. That changed. And it changed because this Senator and a number of others put tremendous pressure, because it was such a ridiculous situation that I could not even talk to my committee members about it. And so they expanded that to include not only committee members but also some staff from both the Intelligence and Judiciary Committees. So I would say to the good Senator that intelligence is difficult, and it is difficult to legislate it on the floor of the Senate. Let me phrase it this way. There is a common view held by many that members of the Intelligence Committee and then, to some extent, the Judiciary Committee, in fact, have the intelligence, they control the intelligence, it is all theirs. I wish to debunk that right now. We control no intelligence. It is entirely controlled, meted out or not, by the executive branch. This executive branch has been extremely cautious, stingy, I would say undemocratic, in doing this. The good Senator from Missouri who is coming in now, the vice chairman of the Intelligence Committee and I have fought like bears to expand the number of people who can have access to these programs. But I cannot argue that the Senator--his point is worthy of thought. I think then one has to consider, are the people on the Judiciary Committee and the people on the Intelligence Committee representative of good faith, people of reasonable intellect, people who know their business, and people who exercise fair judgment? I have been handed a note to say something I have already said, that the public reporting accompanying the Senate Intelligence Committee bill, detailed, with a great deal of specificity, what the companies received from the Federal Government. That still does not allow me to argue the Senator's point. It is a peculiar and difficult nature of legislating intelligence legislation on the floor of the Senate. But it is not weakened by so doing because of what I have indicated, because of what the inspectors general, granted, not in time for this, will come up with, and, secondly, what I would call the very high standard of people who serve on both the Republican and the Democratic side of the Senate and House Judiciary Committee and Intelligence Committee.

Mr. ROCKEFELLER. I respond to the Senator from Pennsylvania by saying he indicated that Judge Walker said this was not a constitutional effort between 2001 and 2007, and it was not constitutional. But when the Senator offers his own amendment this afternoon, I will make the point I make now, that even if it is determined that the program is unconstitutional--and that, for reasons I will explain after lunch when we do the amendment, will not be possible--the immunity fact is not compromised. It is not changed. You are talking about the constitutionality of the White House's action. This bill talks about title I and then title II and a couple of other titles which referred to protecting basic rights, reverse targeting, all kinds of things such as that, which, in fact, came from Senator Feingold, and it is not involved in the constitutionality. It is not involved in that. Even if the judge ruled it unconstitutional, it would make no difference whatsoever on title II.

Mr. ROCKEFELLER. Mr. President, I am opposing the amendment. So I would be taking time from Senator Bond. I ask for approximately 20 minutes.

Mr. ROCKEFELLER

Mr. ROCKEFELLER. Mr. President, I ask unanimous consent that the Subcommittee on Water and Power, be authorized to meet during the session of the Senate to conduct a hearing on Tuesday, July 8, 2008, at 2:30 p.m., in room SD-366 of the Dirksen Senate Office Building.

Mr. ROCKEFELLER

Mr. ROCKEFELLER. Mr. President, I ask unanimous consent that the Committee on Homeland Security and Governmental Affairs' Subcommittee on Federal Financial Management, Government Information, Federal Services, and International Security be authorized to meet during the session of the Senate on Thursday, June 26, 2008, at 2:30 p.m. to conduct a hearing entitled, ``In the Red: Addressing the Nation's Financial Challenges''.