Jay Rockefeller

Mr. ROCKEFELLER

Mr. ROCKEFELLER. Mr. President, I ask unanimous consent that the Committee on Armed Services be authorized to meet during the session of the Senate on Tuesday, February 12, 2008, at 9:30 a.m., in open and closed session to receive testimony on Air Force nuclear security.

Mr. ROCKEFELLER. Mr. President, I ask unanimous consent that the Committee on Health, Education, Labor, and Pensions be authorized to meet during the session of the Senate, in order to conduct a hearing entitled: ``Addressing Healthcare Workforce Issues For the Future.'' The hearing will take place on Tuesday, February 12, 2008, at 2:30 p.m. in room 106 of the Dirksen Senate Office Building.

Mr. ROCKEFELLER

Mr. ROCKEFELLER. Mr. President, the distinguished ranking member of the Judiciary Committee, Senator Specter, has offered an amendment proposing to substitute the government for the providers in the ongoing civil lawsuits. I appreciate and agree with the sentiment of Senator Specter and Senator Whitehouse that the government--not the providers who operated in good faith with them--should be held responsible for the legal fallout from the President's warrantless surveillance program. But this amendment lays out a remarkably complicated litigation procedure that is unlikely to achieve any meaningful review of the President's program. Under this amendment, if the Attorney General submits a certification to the district court that an individual carrier provided assistance in connection with the President's program or did not provide assistance, the district court certifies a question to the FISA Court. The FISA Court is then required to determine whether the carrier cooperated with existing law, or acted in good faith and pursuant to an objectively reasonable belief that the written request was legal. If the FISA Court makes that finding, the government is substituted for the carrier in the district court. At that point, litigation continues against the government under several different possible statutes, and the provider is dismissed from the suit. The plaintiffs may, however, seek discovery--that is, documents, witness testimony, and other information--from the providers who were originally named in the lawsuit. This complicated procedure raises a number of concerns both about the determination by the FISA Court and the resolution of the lawsuits after the government is substituted. As an initial matter, it is unclear why the cases would need to be transferred to the FISA Court for a determination of good faith. The Intelligence Committee has already made an assessment of the good faith of the cooperating providers. The possibility of a court--rather than the Congress--making the good faith determination is particularly relevant to an amendment offered by Senator Feinstein, and I am sure we will discuss it further. But even if Congress seeks to have a court, rather than Congress, make a determination of good faith, having that.determination made in the FISA Court unnecessarily complicates the process. The FISA Court is not a standard factfinding trial court; it does not hear from witnesses, take evidence, or assess the ``good faith'' of private parties. The FISA Court is simply not set up to make factual determinations that impact civil lawsuits. Nor does transferring the cases to the FISA Court help the plaintiffs in these cases. They are not entitled to hear the classified information concerning the good faith of the providers, and they will not be involved in the debate. In addition, although a finding of good faith would normally result in dismissal of the lawsuits, under this proposal, the providers would still potentially have the burden of producing documents and witnesses. Thus, because providers who acted in good faith will continue to have a role in the litigation, even if they are no longer the named defendants, this proposal does not relieve the cost and reputational burdens of the litigation. It therefore is unlikely to encourage the providers to cooperate with the government in the future. It is also unclear what substituting the government in these cases seeks to accomplish. The proposal would involve changing the nature of the claims filed against telecommunications companies to causes of action against the government under a number of statutes, including the Federal Tort Claims Act, the Administrative Procedure Act, or FISA. Suits under these statutes, however, can be, and in some cases, have already been brought against the government. If it is already possible to sue the government under thee statutes for possible violations, and indeed, if the government has already been sued under these statutes, why do we need to create a new procedure to convert claims against private companies into these claims against the government? Finally, we should look at what is actually happening in the current litigation. Many of my colleagues have suggested that allowing the litigation to continue--with either the government or the providers as the defendant--will allow the court to resolve the issue of whether the providers acted in accordance with the law. But this is not presently the debate in the litigation. Right now, the parties in the approximately 40 civil lawsuits are arguing about access to classified information about the President's program. The government has refused to publicly reveal the classified documents and information that would allow litigation to proceed. Because classified information is needed to address even threshold litigation issues, having the government or a particular provider as defendant in the suit is unlikely to change this aspect of the litigation. In other words, whether or not we substitute the government for the provider, no court is likely to resolve the question of whether the President, or any private company, violated the law in the near future. Given that the administration is unlikely to declassify information about the program while the lawsuits are ongoing, it is also unlikely that litigation will ever tell the story of what happened with the President's program. So what benefit is there to substituting the government in the providers' stead? Providers who acted in good faith should be removed from ongoing litigation, without having the burden of responding to discovery and litigation requests and without the reputational harm of having suits in their name go forward against the government. Ongoing reminders of the potential pitfalls of cooperating in good faith with the government will not encourage these companies--whose assistance the intelligence community and law enforcement agencies desperately need--to cooperate with the government in the future. If plaintiffs in any ongoing suit want to bring claims against government officials, those suits can be brought directly, without the complicated substitution procedure described in this amendment. Although no member of the Intelligence Committee offered an amendment on this issue, the committee considered whether it would be more appropriate to substitute the government for particular providers in ongoing lawsuits as part of the work done in preparing this bill. For all of the reasons I have discussed, the committee ultimately decided that substitution was not the right approach to address the ongoing lawsuits. I, therefore, cannot support this amendment, and I urge my colleagues to oppose it.

Mr. ROCKEFELLER. Mr. President, the distinguished Senator from California has offered an amendment to modify the procedures in the Intelligence Committee bill on dismissal of civil actions against telecommunications companies that assisted an element of the intelligence community with regard to the President's warrantless surveillance program. Senator Feinstein's amendment preserves the basic idea of the Intelligence Committee bill; namely, that narrowly crafted immunity for private companies is an appropriate way of resolving dozens of lawsuits arising from the President's program. But the amendment makes one significant change in the procedure proposed by the Intelligence Committee. Rather than Congress deciding that each and every company acted in good faith, the question of whether individual carriers relied in good faith on representations made by the Government would be made by the FISA Court. I understand and appreciate the Senator from California's desire to have a court make this good faith determination. But in this particular case, I think that Congress is better able to assess the context in which companies cooperated with the Government in order to determine whether they acted in good faith. As members of the Intelligence Committee, Senator Feinstein and I have had access to the letters sent to the telecommunications companies. We have heard from the companies who were told after 9/11 that their assistance was ``required'' and that the request for assistance was based on a Presidential order, the legality of which was certified by the Attorney General. In addition, the committee understands the threats faced by the United States in the years after September 11, and the effect that threat environment had on all American citizens. The committee also understands exactly how critical the private sector is to all of our intelligence collection efforts, and what effect the pending lawsuits have had on the private sector's continued cooperation with the Government. The policy question that is at the heart of the Feinstein amendment-- whether companies that cooperated with the intelligence community after September 11 should be protected from liability for their actions--is not a question than can truly be addressed in an individual court case. Unlike the fact-intensive, good faith determinations that would be made in a court case, this question is not about how a company reacted to each individual piece of correspondence it received, or its discussions with the Government. The question should not be answered on a piecemeal basis, based on whether each of the individual actions taken by any particular company was in good faith. Knowing how to address this policy issue instead depends on understanding the circumstances that surrounded the requests, the full dimension of the threat, and the historical relationship between the Government and the companies. Because Congress has the ability to look at the totality of the circumstances in a way that a court evaluating an individual company's good faith cannot, I feel that it is our responsibility to assess the reasonableness of the response of all of the companies. Given the circumstances involved in this sensitive matter, I believe Congress, not the courts, should make the determination as to whether companies acted in good faith and should be protected from liability. Apart from disagreeing as to who should make the decision about good faith, there are also a number of significant procedural concerns with the Feinstein amendment. I fear that these problems would make the amendment unworkable. Under Senator Feinstein's amendment, the first step in the immunity process would be the same as under the Intelligence Committee's bill. The Attorney General would make a certification to a court in which a case against a telecommunication company is being heard. The certification would say one of two things. First, if the company assisted the government, the certification would have to indicate that any assistance provided had been for an intelligence activity involving communications that had been authorized by the President between September 11, 2001, and January 2007. The certification would also have to state that the assistance had been described to the company in a written request or directive from the Attorney General or the head or deputy head of an intelligence community element which indicated that the activity was authorized by the President had determined to be lawful. Alternatively, the certification could indicate that the telecommunications company did not provide the alleged assistance. The court would then have the opportunity to review the Attorney General's certification for abuse of discretion. To protect national security information, only the judge would be entitled to review the certification; the plaintiffs would not have access to it. Under the committee's bill, such a certification would be the end of the process, except for the issuance of the court's order dismissing the action if the Attorney General's certification met these requirements. Senator Feinstein's amendment, in contrast, uses that certification to trigger a transfer of the case to the Foreign Intelligence Surveillance Court. This amendment also specifically provides that the FISA Court will permit any plaintiff in an applicable covered civil action to appear before the Court. This transfer of the case to the FISA Court seriously complicates the existing lawsuits, and poses a number of significant procedural problems that are not resolved in the amendment. As an initial matter, the type of analysis in the amendment is outside the longstanding scope and jurisdiction of the FISA Court. Under the Feinstein amendment, the FISA Court would be required to determine, acting as a body of all judges, whether immunity would be granted under current law, whether the company had an objectively reasonable belief under the circumstances that compliance with the written request or directive was lawful, or whether the company did not provide the alleged assistance. None of these determinations involve the Foreign Intelligence Surveillance Act, the statute on which the FISA Court has expertise. Indeed, the point of the litigation is that the President's program was conducted outside of FISA. In addition, the FISA Court is not generally set up for adversarial civil litigation; it does not usually hear from witnesses or take evidence. Although Congress has granted the Court the ability to hear challenges to certain FISA directives, it has never before been asked to make factual determinations that affect the outcome of civil lawsuits. Sending the case to the FISA court therefore raises all sorts of questions. For example, would the FISA Court, acting en banc, hear testimony from witnesses? If so, who would examine the witnesses? What rules of evidence would apply? What role would the plaintiffs play in the proceeding? The FISA Court would have to come up with an entirely new set of procedures just to handle this litigation. This new proceeding-- particularly as the Court would have to act en banc--would significantly strain the resources of the Court that oversees our electronic surveillance of terrorists and foreign powers and protects the privacy of U.S. persons. Nor does transferring the cases to the FISA Court necessarily help the plaintiffs in these cases. As they do not currently have security clearances, the Government is unlikely to provide the plaintiffs with access to classified information about the proceeding. Thus, most likely, they will not be involved in the debate. I commend the Senator from California for her efforts to come up with a mechanism by which the court can consider and determine the good faith of the companies. But, because of all of the procedural problems with this amendment I have described, as well as a more fundamental belief that Congress has a unique ability in this circumstance to assess the good faith of the companies, I cannot support this amendment. The PRESIDING OFFICER (Mr. Whitehouse.) All time has expired. The question is on agreeing to amendment No. 3919. The yeas and nays have been ordered. The clerk will call the roll.

Mr. ROCKEFELLER. I say to the Presiding Officer, it is my understanding that the first amendment is minimization compliance review by Senator Whitehouse.

Mr. ROCKEFELLER. Mr. President, I simply would also like to be added as a cosponsor, and I congratulate Senator Whitehouse, Senator Bond, and others for doing an outstanding piece of work in resolving the differences on this extremely important enforcement mechanism. Amendment No. 3920, as Modified

Mr. ROCKEFELLER. I move to reconsider the vote.

Mr. ROCKEFELLER. Mr. President, I ask unanimous consent to speak on this amendment.

Mr. ROCKEFELLER. Mr. President, I strongly support this amendment. I think it has very good delineation between how decisions are made. The FISA Court needs to be a part of this. I urge my colleagues to support the amendment. I thank the senior Senator from California for offering this amendment, and for all of her work on ensuring that we have an appropriately drafted exclusivity provision. Senator Feinstein's amendment is critical to both our work on this bill and to our oversight of the intelligence community. To understand the importance of the Feinstein amendment, we must look at both existing statutes and recent events. There is already an exclusivity provision in the United States Code. It was enacted as part of the original Foreign Intelligence Surveillance Act in 1978 and placed, where it exists now, in title 18, the criminal law title of the United States Code. That provision makes the Foreign Intelligence Surveillance Act and certain criminal wiretapping provisions the ``exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral and electronic communications may be conducted.'' Although the intent of Congress is clear from this language, recent history raises concerns about the adequacy of this provision. In December of 2005, the American people and most of Congress learned for the first time that, shortly after the terrorist attacks of September 11, 2007, the President had authorized the National Security Agency to conduct certain surveillance activities within the United States. In publicly justifying the legality of this program, the White House asserted that Congress had authorized the President's program by enacting an authorization for use of military force after September 11. The authorization passed on September 14, 2001, did not mention electronic surveillance. Nor did it mention any domestic intelligence activities. Given the nature of both the authorization and the time in which it was passed, it is very unlikely that it occurred to anyone in Congress that the President might use this authorization to justify his position that the existing statute making FISA the exclusive means for conducting electronic surveillance no longer applied. I have expressed my dismay in the past about the legal arguments that the President used to justify the surveillance program. We are still working through the many problems caused by the President's decision to go forward without input from Congress or the courts. But no matter what the President should have done at the time, Congress now has an obligation to act to prevent this misuse of legislation. Having finally made the right decision in early 2007 to bring his entire program under the FISA Court, the President is no longer using the 2001 Authorization for the Use of military force as a justification to disregard FISA. But we must ensure that neither this President nor a future one resurrects the discredited argument that the 2001 authorization for the use of military force is a blank check for such lawlessness. Section 102 of the Intelligence Committee bill prevents that abuse. Section 102 enacts an exclusivity provision as a new section 112 of FISA, and lists all statutes now in effect that constitute authority for electronic surveillance. This list is a clear statement of congressional intent: Congress did not intend any other presently- existing statutes to constitute an exception to FISA. Conspicuously absent from the exclusive list is the 2001 authorization for the use of military force. The omission of the 2001 authorization from the complete list that will now be enacted in 2008 is a conclusive statement that the 2001 authorization may never again be used to circumvent FISA. Senator Feinstein's amendment takes exclusivity one important step further. It is designed to ensure that no future President interprets a statute that does not explicitly mention electronic surveillance as an exception to the FISA exclusivity requirement. This would be an absolutely incorrect interpretation of existing law. Senator Feinstein's amendment ensures that no President will again make this mistake. Senator Feinstein's amendment addresses the possible impact of future statutes by adding language to the exclusivity section that states that only an express statutory authorization for electronic surveillance will constitute an additional exclusive means for electronic surveillance. By requiring ``express statutory authorization,'' Congress anticipates that a statute will only constitute an exception to FISA if it explicitly discusses electronic surveillance. Only those statutes listed in the FISA exclusivity section of the Intelligence Committee bill currently meet that standard. The amendment therefore ensures that general statutes enacted in the future do not become the basis for exceptions to the FISA exclusivity provision. It also applies criminal and civil penalties for any electronic surveillance done outside of the list of authorized statutes. The Feinstein amendment being offered today also resolves the operational concerns raised by the Director of National Intelligence about the exclusivity provision in the Judiciary Committee's amendment to the bill. Senator Feinstein's amendment does not include the undefined term ``communications information'' and therefore does not bar the acquisition of information that is currently authorized under other statutes. Existing statutes as well as the current bill provide the intelligence community with mechanisms to obtain the intelligence the country needs in a legal manner, with the oversight of the courts. There is no need for this President, or any future President, to set aside the lawful, well-overseen procedures of FISA in favor of a secret intelligence program. Both the Intelligence and Judiciary Committees have done a significant amount of work, on a bipartisan basis, to draft a bill that allows the collection of needed intelligence while still protecting the civil liberties of U.S. persons. Senator Feinstein's amendment helps to make sure that this work will not simply be ignored by this President or any future President.

Mr. ROCKEFELLER. Mr. President, I ask unanimous consent for 5 minutes.

Mr. ROCKEFELLER

Mr. ROCKEFELLER. Madam President, after a long debate, we are, in fact, ready to, hopefully, pass the FISA bill. This has been an extremely important debate over important issues critical to the Nation's security. As I discussed at the beginning of the debate, the guiding principle in bringing this bill to the Senate floor was to modernize our ability to collect communications intelligence against foreign targets without compromising the constitutional and statutory privacy protections afforded to all Americans. In my mind, we have achieved this goal. Vice Chairman Bond and I worked very hard in the Intelligence Committee to produce a balanced and bipartisan bill. One can say whatever one wants, but 13 to 2 is 13 to 2. I think we can be proud of the improvements we have made to the bill each step of the way since last September. But, in fact, it goes all the way back almost a year. In the end, the bill we are about to pass, I hope, strengthens our national security and represents a very significant improvement over the Protect America Act that passed last summer. Let me mention a few of the provisions we have included in the bill for protecting the rights of Americans here in the United States and overseas. We require an individual FISA order for the targeting of U.S. persons believed to be located outside the United States any time the collection is conducted inside the United States. We have also put in place for the first time a procedure requiring FISA Court approval for collection on United States persons outside of the United States in circumstances that would require a warrant if undertaken within the United States. This has never before existed. It now exists in the FISA law, if we do, in fact, pass it. We have increased the role of the FISA Court in other significant ways, starting with the new requirement that the FISA Court approve the minimization procedures that are essential to the treatment of information concerning Americans authorized under this act. And thanks to Senator Whitehouse's amendment adopted this morning, we have clarified that the FISA Court has inherent authority to enforce compliance with the procedures that it, and it alone, can approve. We also adopted new requirements to give Congress visibility into how the new collection authority is being implemented, from the Feingold amendment on FISA Court documents, to the new requirements for reporting by the Attorney General and the Director of National Intelligence. Just as we have worked on a bipartisan basis here in the Senate in order to achieve the strongest possible bill, I believe now is the time to work with our colleagues in the House of Representatives to achieve a true bipartisan, bicameral bill. I look forward to that dialog with our House colleagues. I would note there are additional measures I support which may make this legislation even stronger. Among these would be the exclusivity amendment of Senator Feinstein that received a strong bipartisan majority vote this morning. I think it was 57 votes. I commend her for all of her work she has done on this critical issue and on other parts of the bill, and I will fight like heck for her in the conference committee, if we are to have one. We will continue to work with her and with Vice Chairman Bond to see if there is any way to bridge the differences in the bipartisan manner that has dominated our negotiations throughout this procedure. In closing, it would not have been possible to have reached this point without the hard work of the staff of the Intelligence and Judiciary Committees, as well as the leadership staff. From the Intelligence Committee, I thank Andy Johnson; Louis Tucker; Melvin Dubee; Michael Davidson; Jack Livingston; Christine Healey; Alissa Starzak; and Kathleen Rice. I also thank Mary DeRosa, Nick Rossi, Zulima Espinel, and Matt Solomon of the Judiciary Committee; and Ron Weich, Serena Hoy, and Marcel Lettre of the majority leader's staff. Finally, I must recognize the steadfast support and work of the committee's vice chairman, Senator Bond. The work of the Intelligence Committee is not easy. When it comes on the floor, it is more difficult because there is a certain kind of exclusivity which is not appreciated by some Members but is the way it works. Vice Chairman Bond has been dogged in his efforts to move this whole thing forward. He is formidable in his pursuit of intelligence and his insistence it be made available to the committee and to the appropriate committees; and he is flexible in his willingness to find compromises to keep our bipartisan coalition together. I hope this bill does pass. I think it is landmark legislation. I don't think all will see it that way at the very beginning, and that is OK because what we do is not so much of the moment but for the longer term. So there may be disagreements on immunity. But, on the other hand, there can be no disagreements on the national security of the United States. Immunity has been narrowly tailored. A lot of people don't know that, or maybe made up their minds at the beginning, but, whatever, we did what we thought was the right thing to do. One of the great things about being in this body is no matter what people say and what people think, if you do what you think is right, you are serving your country. I thank the Presiding Officer and yield the floor. I suggest the absence of a quorum.

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

Mr. ROCKEFELLER. Madam President, I ask unanimous consent that the amendment at the desk making technical and conforming changes to the bill be in order, notwithstanding the adoption of the substitute amendment, and that the amendment be adopted. This consent request has been approved by both leaders.

Mr. ROCKEFELLER. Mr. President, under a unanimous Consent agreement, the Senate has accepted three amendments to the FISA Amendments Act of 2008. I would like to say a word about each. The senior Senator from Massachusetts has authored a helpful amendment to ensure that the Government will not intentionally acquire communications where the sender and all intended recipients are known at the time of the acquisition to be located in the United States. Our bill, S. 2248, is not intended to authorize the intelligence community to acquire purely domestic communications. Electronic surveillance of purely domestic communications requires a court order under title I of FISA. In addition, S. 2248 explicitly prohibits the targeting of persons known at the time of acquisition to be located inside the United States. The importance of the Kennedy amendment is that it reinforces our intent. It should put to rest any doubts about what the Senate intends with respect to protecting the communications of persons within the United States. I am grateful for the willingness of the Senator Kennedy to work with the committee on this amendment. I would also like to acknowledge his leading role in the history of FISA as the sponsor of the original FISA legislation, first in 1976, and then when FISA was enacted in 1978. Senator Kennedy helped the Congress then to enact legislation that protects both our national security and the rights of Americans. We are grateful that he has stepped forward again to help us achieve those goals. Under the unanimous consent agreement, the Senate has accepted an amendment by Senator Whitehouse that resolves an important question about the status, pending appeal, of an order by the Foreign Intelligence Surveillance Court requiring correction of deficiencies in intelligence collection procedures under the new title VII of FISA. The amendment requires the FISA Court of Review to determine, within 60 days of the Government's appeal, whether all or part of a FISA Court order requiring correction will be implemented during the appeal. The Government may continue collection until the appellate court makes that determination, and longer if the Court so determines. The 60-day requirement ensures that the matter will receive appellate attention without undue delay. We appreciate Senator Whitehouse's successful effort to resolve this matter. Finally, under the unanimous consent agreement, the Senate has accepted an amendment by Vice Chairman Bond to delete a statutory requirement that appeals in cases either challenging or seeking to enforce directives to companies be filed within 7 days. The amendment leaves it to the FISA Court or the Court of Review to establish that deadline as they do for all other appeals under FISA. The amendment recognizes the responsibility of those courts to establish rules. And it recognizes that both the Government and carriers may require additional time to evaluate whether an appeal should be filed. I appreciate the vice chairman's effort to resolve this matter.

Mr. ROCKEFELLER

Mr. ROCKEFELLER. I have already spoken on this amendment.

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

Mr. ROCKEFELLER. I ask unanimous consent that the order for the quorum call be rescinded.

Mr. ROCKEFELLER. Mr. President, in every respect, I second the words of the vice chairman of the Senate Intelligence Committee. Speaking for this Senator, in the course of last year, this Senator has spent 6 months working on the children's health insurance bill with staff who do so much work that they sleep 2 or 3 hours a night, including the weekends, and achieved nothing. We have had, in a sense, the same process on the FISA bill. It is very complicated because it is a very delicate subject and requires this very difficult balance between intelligence collection for the security of the Nation and civil liberties of the people. I am extremely proud of the way the vice chairman and others, particularly the majority leader and the minority leader, have conducted this affair. It took quite some time to get it going. I do believe I also see light at the end of the tunnel. I think if we do our work on Tuesday, we will have time to conference this bill with the House and send a bill to the President. In any event, I am grateful, particularly to the staff whose work is never mentioned enough.

Mr. ROCKEFELLER. Mr. President, my remarks are only to indicate strong support for this amendment. It is a wise modification. As far as I know, there are none who are in dissent. I hope it will be accepted.

Mr. ROCKEFELLER. Mr. President, I would say to the Presiding Officer that this amendment would prevent disclosure or dissemination of any collected information by U.S. persons if the FISA Court finds there are deficiencies in the Government's targeting or minimization procedures under the new authority. There is no need to add another penalty to ensure compliance with the requirement of the statute. The amendment gives the court very little discretion to determine whether nondisclosure is the appropriate remedy. Nondisclosure could be required even if the information is particularly significant foreign intelligence information, or if there is only a minor deficiency in the procedure that cannot be corrected within 30 days. It is a very short way of saying that I oppose this amendment strongly.

Mr. ROCKEFELLER. Mr. President, this turns the bill on its head. This says if we are targeting folks overseas, that in effect we have to get a FISA Court approval for each and every time that happens. Let me say the amendment causes enormous operational problems for intelligence professionals. They are very serious about it. The DNI and the Attorney General say it will hamper U.S. intelligence authorizations currently authorized because every single person would have to have a court order, and when you are collecting overseas, that becomes kind of a burden. While the technical details concerning such intelligence operations are classified, the concern is that the restriction would prevent the Government from doing intelligence collection against a foreign city, or a neighborhood in a foreign city, in advance of a military operation or perhaps in pursuit of a terrorist cell. The amendment is unnecessary, and I urge its defeat.

Mr. ROCKEFELLER

Mr. ROCKEFELLER. Mr. President, today I recognize the achievements of someone who has inspired me personally, who has made West Virginians laugh when there is little to laugh about, and whose contribution to my home State cannot be underscored enough. When New Martinsville native Bill Stewart led the West Virginia Mountaineers into the Fiesta Bowl, he did more than just defeat the Oklahoma Sooners 48-28. ``Coach Stew,'' as his fans reverently call him, lifted the spirits of our entire State. Since that time, Bill's West Virginia charm has been infectious, his press conferences legendary, and his impact on our State's culture profound. Anyone who has played or worked with him loves him. His arrival on the scene was exactly what the State needed: a good-natured underdog with which people could identify. For West Virginians, December 2007 had been abysmal. Not only did we lose a chance at the National Championship, but we lost our coach, endured endless ridicule in the media, were constantly told that Oklahoma would embarrass us--the negativity never seemed to stop. But then Coach Stew stood up, stood proud, and said, with his trademark smile, ``When it gets too tough for everyone else--it's just about right for Billy Stewart.'' And he was absolutely right. Now, every time I go home, West Virginians cannot emphasize enough the amount of pride they felt when this coach guided their team into the Fiesta Bowl. West Virginians will never forget Bill's optimism, when he promised to give the Sooners a good fight; his emotion, when he met quarterback Patrick White at the sideline, grabbed him by the helmet and seemed to say, ``I love you, kid''; his satisfaction, as he watched his team storm the field, victorious; or his own surprise, when WVU rewarded Bill with the Mountaineers' head coaching job--a position for which he was too humble to politic, but more than qualified to accept. These were iconic moments in West Virginia history--and they pulled right on the heart strings. The degree of humility in this coach was absolutely awe-inspiring; his faith jaw-dropping; and his devotion to his players and colleagues nothing short of extraordinary. Since those memorable days in Arizona, Coach Stew has assembled a top-notch staff, maintained an impressive recruiting class, and recaptured the heart--not just the attention--of Mountaineer Nation. To me, Bill Stewart embodies all that is good about West Virginia. An unlikely but deserving hero, he is a man whose cheerful optimism, character and Appalachian charm have given us a reason to cheer again. For that, I express my deepest gratitude and deepest admiration to New Martinsville's favorite son. I am glad that he is a fellow West Virginian, I am glad that he is a part of our culture, and I wish him the absolute best of luck.

Mr. ROCKEFELLER

Mr. ROCKEFELLER. This is a total of 10 minutes or less amendment, but we will not start until 3:05. The Senator can call it up.

Mr. ROCKEFELLER. Mr. President, I ask unanimous consent that at 3:05 p.m. today the Senate return to the Cardin amendment No. 3930, with the time from 3:05 until 3:15 equally divided and controlled in the usual form; that the Senate then proceed to vote in relation to the amendment, with other provisions of the previous order remaining in effect.

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