Jay Rockefeller

Mr. ROCKEFELLER

Mr. ROCKEFELLER. Mr. President, I say to the Presiding Officer that far and away the most contentious issue in this FISA debate is whether private companies that assisted the Government in implementing the President's warrantless surveillance program should be provided liability protection. Three amendments will be offered that relate directly to this issue. First, Senators Dodd and Feingold have an amendment that would strike all of title II of the underlying bill--that is, S. 2248--on liability protection as reported by the Intelligence Committee. Second, Senator Specter will offer an amendment--I think at 3:30-- that provides for a different remedy; namely, the substitution of the U.S. Government itself for the carriers in the lawsuits that have been filed against the carriers. Third, Senator Feinstein has prepared an amendment that would keep the basic structure of title II--to wit, liability immunity--but would have the courts, rather than the Congress, determine whether carriers relied in good faith on the representation made to them by the executive branch of our National Government. I will address the particulars of each amendment as it is offered, but first I would like to describe the background behind the Intelligence Committee's approach to this whole issue of immunity. Critics have suggested that providing liability protection for telecommunications companies is akin to congressional endorsement of the President's warrantless surveillance program. I understand the passion stirred by this issue. Rather than consulting with Congress or the courts, the President created a secret surveillance program--no question about that--based on very dubious legal reasoning. That was unnecessary, that was unwise, that would, therefore, cause passions and suspicions. But anger over the President's program should not prevent us as a deliberative body from addressing the real problems the President has created. Because of the lawsuits over the program and the damage to the telecommunications companies' reputations, companies that were once willing to help the Government, based on assurances of legality from the highest levels of Government, may now be questioning that assistance. Let's reflect on that for a moment. These are corporations. They have no names at the present time. They have to make money. The Government comes to them, as they have in the past on much smaller matters, and with the authority of the President saying, this is in the national interest; with the legal advice of the Attorney General saying, this is legal; and then the Director of the National Security Agency sending out letters that say, we require you, we compel you, we request to you--or other words--that you cooperate with us. People say: Well, they cooperated. Of course they cooperated right after 9/11. I think anybody who is in the intelligence business understands what I am saying. There is no difference between the day after 9/11 and this day in terms of the threat to our country or those who are planning, plotting to do us harm. The fact that no attacks have happened does not excuse the sense of relaxation on the whole subject--perhaps the congressional sense of relaxation on the whole subject. We need to continue this intelligence collection. What is it, I am wondering, that the telecommunications companies get from this? What prestige? What large amount of money? What praise? What do they get from this? Do they get good public relations? No. They get 40 lawsuits, most of which are not based on anything to do with the TSP program. In other words, they are picked out of newspapers. People are dissatisfied, and class action suits arise. So maybe they have been sued $10 billion. Maybe they have been sued $40 billion. We will not speculate on that at the present time. But in that they are corporations and in that they have no reward at all for doing this service for their country--which we call patriotism, and then cast that aside because that must mask some evil intent--they go ahead and they do it. Then, since they are corporations, their shareholders get extremely unhappy about it, which could be happening at the present time, and then they decide that maybe they will be less willing to do this. Several have done that. Several at the beginning did that. Now, corporations are in business also to make a profit. The corporations that are involved in this are doing nothing but losing prestige, losing reputation, have angry shareholders. And I ask myself, what is it they get out of doing this, because people, particularly on my side of the aisle, are sometimes inclined to be suspicious of corporations, that they have some kind of a purpose behind all of this. Nothing could be further from the truth. They are losing. They are being criticized. They are being sued. It is costly. It takes away from their energy to carry out their other missions. It is not a situation in which a whole bunch of people are sitting around in these corporate headquarters discussing this, because only a very few people are allowed to know, and they have criminal sanctions against them if they tell anybody, should they have received any of these instructions from the Government. So we are not talking about people here trying to undo the safety of the United States or to gain some kind of advantage for themselves. If this intelligence collection stops, I say to the Presiding Officer, we will be in a very sorry situation. I do not know how to say that more sincerely, more deeply felt, more based upon exhaustive study, including numerous meetings in committee with these folks and other meetings outside. So they have been told it is legal, and by the National Security Agency Director they have been required, compelled, and in other words, some of which are quite strong, to do it. So they do start to do it, and they are paying one heck of a price for it. What price are we paying? We are paying no price because they are still doing it. What price might we pay should they stop--because they are corporations, and they are responsible to their shareholders--if they should stop this type of activity? The price we would pay would be overwhelming. Without the cooperation and assistance of private companies--not compliance forced by a court but true cooperation--this country's law enforcement and intelligence agencies cannot obtain the information they need to protect this country. It is a fairly heavy statement to make. I chair the committee. I am not naive on these matters. I make that statement again. Without the cooperation and assistance of private companies, this country's law enforcement and intelligence agencies cannot obtain the information they need to protect this country. Making the question of liability protection a proxy for disagreement with the President's program is, therefore, shortsighted, in this Senator's view, ignoring the reality that the Nation and future Presidents will depend on the assistance of these same companies for years to come. In analyzing the question of liability protection, the Intelligence Committee sought to weigh these very real concerns about future intelligence collection against the possible outcome of lawsuits. We discussed it at length. Understanding this issue requires some background on the lawsuits that have been filed. Currently, providers are subject to approximately, as I indicated, 40 civil lawsuits, some of which are class actions, which seek billions of dollars of damages--and I have given you a range--for privacy violations based on the companies' alleged provision of assistance and information to the intelligence community. The suits are based--many of them--on media reports about all sorts of intelligence activities. Many of them are not limited to the warrantless surveillance program disclosed by the President. That is ironic, but it is a heavy burden for the companies. If suits are brought that have nothing to do with the warrantless surveillance program disclosed by the President, they are out of order. But, as I will proceed to explain, the companies can never explain to a court that they are out of order. Although these suits involve different types of legal claims that are in varying stages of litigation, they share a common reality: that the Government has refused to publicly reveal the classified documents and information that would allow them to proceed. The current fight in the courts is, therefore, not about whether damages should be awarded, whether the underlying program is legal or even whether any company participated in the President's program in good faith. Instead, the parties are fighting about access to classified information about the President's program. I have not heard that much discussed in this Chamber. This litigation could continue for years without a court ever addressing the underlying issues about the legality of the program. We seek wrongdoing whether, as some say, it is in the corporate boardroom or, as others would say--as I would say--in the halls of Government. I stress the point: No court is likely to resolve the question of whether the President or any private company violated the law in the near future. Some of my colleagues have argued that without these lawsuits, the public will never learn the details about the President's program. But litigation is highly unlikely to tell the story of what happened with the President's program. Too many of these facts dealing with intelligence sources and methods remain appropriately classified, and the executive branch is highly unlikely to agree to declassify additional information if it could affect the ongoing litigation. Thus, the litigation is unlikely to result in a ruling in the near future about the legality of the conduct of the President nor any private company, nor, for that matter, the public disclosure of any additional information about the President's program. Instead, it is possible the cases, as I indicated, will continue for years as the courts debate whether information must be disclosed. In the meantime, however, as I mentioned, the litigation poses a serious risk to U.S. intelligence collection. That is my job and that is the job of the committee I chair and the job of the chairman of the Intelligence Committee in the House. We are not about being courts, we are about trying to balance civil liberties as best as we can with the ability of this country to collect an entirely different kind of intelligence that we were so busy doing recently in the Cold War era. Without the assistance of telecommunications providers, our intelligence community simply cannot obtain the intelligence it needs. Is that a serious statement? Do Members of the Senate concern themselves with that? Is this just me, this Senator, standing up making a statement trying to win some votes? Or is there the possibility it could be true? If there is a possibility--and I think it is a probability it is true--then I don't understand why people can be confused on this subject because I think the choices are clear. Allowing companies to be dragged through the court system because of their alleged cooperation with the Government encourages them not to cooperate with any request, even those that are clearly legal without court compulsion. It also sends a message to all private companies: cooperate with the U.S. Government at your peril. Is that a bit of an overstatement? In the corporate boardrooms around this country, my guess is that is the discussion. Very few corporations have the capacity to help the Government in the way telecommunications companies do. Discouraging private sector cooperation with the Federal Government is not, in the feeling of this Senator, the right long-term result for either the intelligence community or the American people. Many have argued that providers who act unlawfully should be held accountable. I totally agree that all Americans, including corporate citizens, must follow the law and be held accountable for their failures. Companies that deliberately seek to evade privacy laws or legal restrictions on electronic surveillance can and should be subject to civil suit, but that is not the issue here, I would say to the Presiding Officer. That is not the issue. The Intelligence Committee spent a lot of time, as I have indicated, this year looking into what happened over the past 6 years. Before deciding to provide liability protection for the companies, the Intelligence Committee heard testimony from relevant witnesses and carefully reviewed the written communications provided to participants in the program. Participants were sent letters, all of which stated the relevant activities had been authorized by the President and all but one--and that was done by the legal counsel to the President--of which stated the activities had been determined to be lawful by the Attorney General of the United States. Shouldn't private companies be entitled to rely on the written representations of the highest levels of Government officials that their cooperation is necessary and has been determined to be lawful? Can you argue that if they get those notifications from the NSA Director and it has been approved by the Attorney General and has been declared essential for the national interest by the President, should they instead say: Oh, well, we don't care about that. That is not our business. We are not going to do that. And isn't it reasonable to assume that a U.S. citizen who has been told the Attorney General has found their cooperation to be lawful is acting in good faith? If they have been through this process and they proceed to act on it, why is it so easy to stipulate they are not acting in good faith? How does one show that? How does one imagine that? I have been through this, this whole question of what the companies get from it, and it is the thing that bothers me so much. They get nothing but grief. They get suits. They get costs. They get a diminished reputation. They begin to pull away. Their shareholders lose confidence. Do they get money? No. They get nothing. So why would they want to continue to cooperate would be my question. The answer to these questions are at the heart of the Intelligence Committee's determination that it is essential that Congress protect private companies that assisted the Government after the terrorist acts of 9/11. Mr. President, I will complete this part of my presentation and yield the floor. I suggest the absence of a quorum.

Mr. ROCKEFELLER. Mr. President, I ask that I be given unanimous consent to speak on the underlying bill.

Mr. ROCKEFELLER. Madam President, I am reluctant to ask, but I must, how much time remains before 4:30?

Mr. ROCKEFELLER. Wonderful. Madam President, I simply rise to say I will oppose this amendment and I will oppose it strongly and I think for a series of very good reasons. But in spite of my eloquence and the ability to talk very quickly, I simply cannot do the task in 1\1/2\ minutes. So I ask unanimous consent to reserve my right to speak further at the appropriate time before the vote.

Mr. ROCKEFELLER. I say to the Presiding Officer, I find myself in disagreement with my vice chairman. I originally wanted 4 years and we went to 6 years because of accommodations that yielded other results. In the wisdom of the joint Intelligence Committee and Judiciary Committee, settling on 4 years makes a lot of sense. I urge the adoption of the amendment.

Mr. ROCKEFELLER. Mr. President, I wish to make a few comments on the amendment of the Senator from Wisconsin and what he referred to as the ``bulk collection'' amendment which he discussed yesterday and which is amendment No. 3912. I would ask that this time be taken from the opponents of the amendment, if that is all right with my vice chairman. The Senator from Wisconsin is offering an amendment that he argues will prevent what he calls ``bulk collection''. The amendment is intended, as described by the Senator from Wisconsin, to ensure that this bill is not used by the Government to collect the contents of all the international communications between the United States and the rest of the world. The Senator argues that the amendment will prevent ``bulk collection'' by requiring the Government to have some foreign intelligence interest in the overseas party to the communications it is collecting. I regret to say I must oppose this amendment strongly. I do not believe it is necessary. I do believe, as drafted, the amendment will interfere with legitimate intelligence operations that protect the national security of the lives of Americans. In considering amendments today, we need to consider whether an amendment would provide additional protections for U.S. persons and whether it would needlessly inhibit vital foreign intelligence collection. I do not believe the amendment, as drafted, provides additional protections. Furthermore, intelligence professionals have expressed their concern that this amendment would interfere with vital intelligence operations, and there are important classified reasons underlying that concern. Let us review why the amendment is unnecessary. First, bulk collection resulting in a dragnet of all the international communications of U.S. persons would probably be unreasonable under the fourth amendment. No bill passed by the Senate may authorize what the fourth amendment of the Constitution prohibits. What is more, the committee bill, in fact, explicitly provides that acquisitions authorized under the bill are to be conducted in a manner consistent with that same fourth amendment of the Constitution. Second, the committee bill stipulates that acquisitions under this authority cannot intentionally target any person known to be located in the United States. And to target a U.S. person outside the United States, the Government must get approval from the FISA Court. Third, the committee bill increases the role of the FISA Court overseeing the acquisition activities of the Government. The bill requires court approval of minimization procedures that protect U.S. persons' information. It maintains the prior requirement of court approval of targeting procedures. In the unlikely event the FISA Court would give its approval to targeting procedures and minimization procedures that allow the Government to engage in unconstitutional bulk collection, the committee bill also strengthens oversight mechanisms in the executive and legislative branches, such as requiring assessments by the inspectors general in the Department of Justice and relevant agencies. These mechanisms are intended to ensure that such activity is detected and prevented. The sponsor of the amendment says his amendment only requires the Government to certify to the FISA Court that it is collecting communications of targets for whom there is a foreign intelligence interest. But the committee already requires the Attorney General and the Director of National Intelligence to certify to the FISA Court that the acquisition authorized under the bill is targeted at persons outside the United States in order to obtain foreign intelligence information. Because the remedy does not improve upon the protections in the bill for Americans and places new burdens on the surveillance of foreign targets overseas, I thus oppose this amendment and urge that it be rejected. I yield the floor and reserve the remainder of the opponents' time.

Mr. ROCKEFELLER. Mr. President, I ask my esteemed vice chairman if I might have 6 minutes to oppose Senator Feingold's reverse targeting amendment No. 3913.

Mr. ROCKEFELLER. The Senator from Wisconsin has an amendment that requires a FISA Court order if the Government is conducting surveillance of a person overseas, but a significant purpose of the surveillance is to collect the communications of a person inside the United States with whom the target is communicating. I share the Senator's goal in protecting the privacy interests of Americans, but I am afraid this amendment, as drafted, is unworkable and unnecessary. The amendment is described as a way to prevent reverse targeting-- circumstances in which the Government would target persons overseas when its actual target is a person within the United States with whom the overseas person is communicating. The fact is, reverse targeting is prohibited under FISA today. I repeat, it is prohibited under FISA today. If the person in the United States is the actual foreign intelligence target, the Government must seek a FISA order, and, in fact, the Government would have to have every incentive to do so in order to conduct comprehensive surveillance of such a person. What is more, the base bill, S. 2248, makes the prohibition on reverse targeting explicit. The Government cannot use the authorities in this legislation to target a person outside the United States if the purpose of such acquisition is to target for surveillance a person within the United States. In addition, the base bill, the Intelligence Committee bill, also strengthens the protection of U.S. person information that is collected in the targeting of foreign targets overseas by requiring that the FISA Court approve the minimization procedures that apply to this collection activity. The Feingold reverse targeting amendment, however, goes too far. The amendment would prohibit the Government from using the authorities of this act ``if a significant purpose'' of the acquisition is to ``acquire the communications'' of a particular known person within the United States. In order to acquire such communications, the Government would be required to seek a regular FISA Court order. The problem is that we are revising the Foreign Intelligence Surveillance Act today in large measure precisely because we want the intelligence community to have the ability to detect and acquire the communications of terrorists who call into the United States. In other words, in order to detect and prevent terrorist attacks, finding out if a foreign terrorist overseas is in contact with associates in the United States is actually a significant purpose of this legislation, and it will always be a significant purpose of any targeting of a foreign terrorist target overseas by the intelligence community. As the Statement of Administration Policy--that is objections usually that come over from the White House--points out: A significant purpose of the intelligence community activities is to detect communications that may provide warning of homeland attacks and that may include communication between a terrorist overseas who places a call to associates within the United States. A provision that bars the intelligence community from collecting those communications is unacceptable. Who is to say that person from overseas is not a terrorist and he is contacting a person in the United States to discuss something which is not in the national interest or which has intelligence implications? You cannot in good conscience bar the intelligence community from collecting these communications. That is unacceptable. Again, reverse targeting is prohibited under current law. I think that is the third time I have said that. Reverse targeting is prohibited by the committee bill. The amendment is not needed to achieve its stated goals. It will harm vital intelligence collection. I urge the amendment be defeated. I reserve the remainder of our time.

Mr. ROCKEFELLER

Mr. ROCKEFELLER. Mr. President, understanding whatever it is that the Senator from Arizona decides he wants to do, there is a particular reason and a particular time constraint that the Senator from Washington has to speak now. That is why I asked that she be allowed to speak in morning business. She will make that request, and I hope there will be no objection to it.

Mr. ROCKEFELLER. If the Senator will yield, it is very important for a particular person on this floor to be able to, within the next 15 minutes--and for a particular reason--say some things that are very important to her, not on either of our pending amendments, the two amendments you and I are about to offer. The Senator has already approached the Parliamentarian in this matter. I ask if the Senator from Missouri would be willing to allow the Senator from Washington to speak on a different subject for 15 minutes for a very good reason.

Mr. ROCKEFELLER

Mr. ROCKEFELLER. I don't know how much time is remaining on both sides with respect to the Feingold amendment.

Mr. ROCKEFELLER. Mr. President, in the absence of the Senator from Maryland, I yield myself 5 minutes from the time controlled by Senator Cardin on his amendment.

Mr. ROCKEFELLER. Mr. President, this Senator supports the amendment of the Senator from Maryland to revise the sunset provision of the bill so that the new authority established under this act will expire after 4 years. This Senator had originally started out supporting a 4-year sunset because it seemed to make sense because it comes during the next President's term in office. This is supremely important legislation. There is no one--with the exception of the administration--who has objected, no committee which has objected to the idea of considering a sunset review. The reason is very clear: One wants to make sure, when you are balancing foreign intelligence collection, intelligence collection in general, and civil liberties, that one has the right balance. The question before us today is what date in the future makes the most sense for a sunset. There are a number of new initiatives which are either proposed to be started in this legislation or which will be started in this legislation, and none of them are entirely predictable. I think a 4-year sunset makes a lot of sense because it is so important that we know what we are doing, that we know we are doing it right, and that we know the intelligence community knows it is doing its work correctly--I do not mean badly or superbly but simply that they are getting it the way they want to do it and it is compatible with the spirit of the law, that the Congress and the administration are in sync on it. We do this before we settle this into permanent law. This is all new. Everything changed on 9/11. Many considerations under the law, particularly with respect to the gathering of intelligence and the protection of privacy, changed. This is especially important in light of the rapid pace of change in telecommunications technology--one of the main reasons were are here today revising FISA. I think we need to have a 4-year sunset amendment. I do think it is important that the intelligence community, the Congress, and the administration come back together in 4 years. Congress, obviously, can bring it up anytime we want. On the other hand, if we do it this way, with a 4-year sunset amendment, it obliges all participants to come to participate. That is the way we get resolved what works and what does not work, and we learn from the intelligence people, and they learn from us, as to what we think is the best way to proceed. So I do strongly support that amendment. It would take us to December 31, 2011. This four year period would give the intelligence community ample time to move ahead but it also ensures that the decision on permanency is made when Congress and the executive branch are prepared to evaluate the legislation again. As I have indicated, I support the amendment. I yield the floor. Several Senators addressed the Chair.

Mr. ROCKEFELLER. Mr. President, I would like to offer my strong support for the amendment offered by Senator Whitehouse to ensure there is explicit written legal authority in this bill for the Foreign Intelligence Surveillance Court to review and to assess compliance with the minimization procedures established for the bill's new acquisition authority. One of the most serious deficiencies in the Protect America Act was the fact that the FISA Court was not given a role at all in approving the minimization procedures put in place by the Attorney General and the Director of National Intelligence for collection activity. That was fine. But it was insufficient. Minimization procedures are the procedures that govern the treatment of nonpublic information concerning Americans in the acquisition and retention and dissemination of foreign intelligence. The Intelligence Committee's bill addressed this deficiency in the Protect America Act by requiring the court to review and approve minimization procedures. The committee, however, learned, and then was happy to take from in our discussions, the Judiciary Committee's better approach to this. We did not, in the Intelligence Committee bill, explicitly authorize the court to assess compliance with these minimization procedures. As the Senators from Rhode Island and New York have pointed out, there is no point in having something on the books if you cannot be sure it is going to be complied with. So compliance is a sacred principle. Senator Whitehouse's amendment will ensure that the court can assess the executive branch's compliance with these minimization procedures, be provided with information it needs to make the assessment, and have the authority to enforce this assessment. The administration objected to the provision reported from the Judiciary Committee allowing the FISA Court to review compliance with minimization procedures as being what it called ``a massive expansion'' of the court's role. The administration also argued there are enough other oversight mechanisms already in the bill, through requirements on the Attorney General, the Director of National Intelligence, the Inspectors General of the intelligence agencies. I respectfully disagree with that assessment. Assessing compliance is inherent in the court's role. It is inherent in the FISA Court's role in reviewing and approving minimization procedures in the first place. In fact, without it, without the compliance part of it, the first parts are nice but not sufficient. Having the court assess compliance with minimization procedures is an important safeguard to ensure there is due care in the handling of, as I say, nonpublic information concerning U.S. persons. I therefore urge the adoption of this amendment. I yield the floor.

Mr. ROCKEFELLER. Mr. President, with the forbearance of the Senator from Maryland, I wish to place our situation in context because we have a number of things going on, and I would like the Parliamentarian to explain it to me so it is very clear to all of us. Before I do that, I am reading at the direction of the leader his unanimous consent request, and that is to have the time from 5:20 p.m. to 5:30 p.m. be reserved for debate on the motion to invoke cloture on the motion to proceed to H.R. 5140, the economic stimulus bill; further, that the time be equally divided and reserved for the two leaders or their designees, with the Republicans controlling the first 5 minutes and the majority controlling the final 5 minutes.

Mr. ROCKEFELLER. Now I would like to ask the Parliamentarian to help me be sure and our Members on the floor and others what our situation is. The chairman of the Judiciary Committee has just given an extraordinarily moving tribute to a very dear friend of his-- extraordinarily moving--but that came in between. Now, the Senator from Pennsylvania has come upon the floor and he wants to say certain things, and there are people in the gallery to whom this would have a direct effect, so there is a temptation to go along with that. On the other hand, we are still on the Feingold amendment. I believe that to be the pending amendment, if the Parliamentarian declares that to be the case. On the other hand, the person who is listed second on the order of the day is the Senator from Maryland. In the matter of how many years we should wait before going back to this, if we do, he was in fact the second person on the order of the day for the second amendment. He is here. He has been waiting and he wants to present that amendment. So it is 4 o'clock and we have a variety of things before us, and I wish the Parliamentarian to set us straight as to where we are.

Mr. ROCKEFELLER. If this Senator does his mathematics, that takes us already past the time of the unanimous consent.

Mr. ROCKEFELLER. Senator Feingold's amendment concerns the effects of a court determination that there are deficiencies in the Government's procedures under the new authority. This is a complicated issue and I think it is important to explain why I cannot support this amendment. I wish to add that what the vice chairman and I both believe all of this is going to be litigated in the courts for decades to come, and all that is said here by us and everybody else becomes an important part of the record. Under the Intelligence Committee bill, the FISA Court is required to review the Government's certification, targeting procedures, and minimization procedures to ensure their adequacy. If the court finds a deficiency in either the minimization or targeting procedures, the Intelligence Committee bill requires the Government correct the deficiency or cease the acquisition. The Feingold amendment goes beyond requiring that collection be terminated or deficiencies corrected. It restricts the use or disclosure of any information collected that concerns U.S. persons. Unless the Attorney General determines the information indicates a threat of death or serious bodily harm or the person consents, the amendment would prevent the Government from sharing or disseminating with anyone in the Federal Government any information already acquired under the new procedure that concerns U.S. persons. I can understand that there may be, at first glance, some appeal to that idea. Senator Feingold, for example, has said it is important to ensure there are consequences when the Government has not adequately developed its procedures. Hard to argue. But looking at the consequences of this amendment in more detail makes it clear the provision is impractical. And it creates serious risks that we will lose valuable intelligence. The language of the Senator's amendment is taken from the emergency provisions currently in FISA. Under those provisions, the Attorney General can authorize electronic surveillance without a court order in an emergency, as long as an application for an order is submitted to the court within 72 hours. If a court does not approve the FISA collection on an individual target after this emergency intelligence collection has begun, FISA prevents the intelligence collected from being ``used or disclosed in any . . . manner by Federal officers or employees without the consent of such persons,'' unless the Attorney General determines the information indicates a threat of death or serious bodily harm. The impact of this existing emergency provision in FISA, however, is far different than the impact of Senator Feingold's amendment. In contrast to limiting the use of a small amount of information collected on one target during 72 hours of emergency procedures, Senator Feingold's amendment potentially limits use of all information gathered through a new system of intelligence collection. To understand why these are different situations, it is useful to consider the difference between traditional FISA applications and orders and the new title VII provisions. Unlike traditional FISA applications and orders, which involve collection on one individual target, the new FISA provisions create a system of collection. The court's role in this system of collection is not to consider probable cause on individual targets but to ensure that the procedures used to collect intelligence are adequate. The court's determination of the adequacy of procedures, therefore, impacts all electronic communications gathered under the new mechanism, even if it involves thousands of targets. I will repeat that. Senator Feingold's amendment applies to all of this intelligence collection. If the court finds a deficiency that the Government does not correct within 30 days, the Federal Government could not disclose any information on U.S. persons that was gathered as part of the new intelligence collection system without the consent of the person. Thus, unlike existing emergency procedures, which limit the use of a small amount of intelligence gathered over a 72-hour period on one target, Senator Feingold's amendment would potentially restrict the use of large amounts of intelligence, without regard to the importance of the intelligence. In addition, under the Feingold amendment, intelligence analysts would have to determine whether the collected intelligence contained information concerning U.S. persons. The Feingold amendment would require the intelligence analysts to sift through all of the intelligence collected under the new process in order to identify information potentially subject to restriction. As part of that process, analysts might be required to look at information that had not previously been analyzed in detail because it did not appear to contain significant foreign intelligence information, in order to determine whether the information concerned U.S. persons. Senator Feingold's amendment, therefore, has the potential to be more intrusive of U.S. privacy interests than the initial collection. Finally, this limitation on use applies regardless of what deficiency is found by the court, as long as the deficiency is not corrected within 30 days. Even if the court finds a minor deficiency in the procedures and the Government is acting in good faith to correct it, this provision would require the intelligence community to prevent any disclosure of the information. Please consider that, Madam President--to share with nobody in the Government. In sum, this provision could restrict the use of significant amounts of intelligence based solely on minor deficiencies in procedures. It may also require the intelligence community to focus its analytical resources on satisfying this provision rather than on collecting and analyzing the intelligence needed to protect this country. In my view, this allocation of resources makes no sense. I therefore cannot support this amendment. I reserve the remaining time, which is about 4 minutes. I yield the floor.

Mr. ROCKEFELLER. Madam President, in two sentences, thousands of targets in the Senator's amendment, thousands of targets, all foreign means hundreds or thousands of pieces of intelligence. Intelligence does not come as one lump. It is an enormous array of collection of all kinds of things which are stitched together over time. All that intelligence could be lost under the Feingold amendment if there were only U.S. person information that was involved. I yield the floor.

Mr. ROCKEFELLER. This Senator would add an additional complication but one which is necessary and highly important. Senator Leahy, as I indicated, gave a very moving statement. We now have two more Senators on the floor who wish to discuss equally tragic circumstances with members of either the family or close friends in the gallery, which means we cannot postpone, for a variety of reasons which the senior Senator gave me. I ask unanimous consent that we set the pending amendment aside temporarily and first call upon the junior Senator from Pennsylvania and then the senior Senator from Pennsylvania to make a few short remarks.

Mr. ROCKEFELLER. Of course, we don't have to use all our time. Therefore, I would encourage our colleagues not to do so, and yet to get out the full body of the amendment. I appreciate the response of the Parliamentarian, the Presiding Officer, and I yield the floor.

Mr. ROCKEFELLER

Mr. ROCKEFELLER. Madam President, I suggest the absence of a quorum.

Mr. ROCKEFELLER

Mr. ROCKEFELLER. Mr. President, I rise today in support of the Wild Monongahela: A National Legacy for West Virginia's Special Places Act. This important piece of legislation sets aside over 47,000 acres of wilderness in the Monongahela National Forest so that our children and grandchildren will have the opportunity to enjoy the forest in its pristine state. West Virginians have a proud tradition of mining and logging that provides needed resources for our entire country. I have no doubt that this tradition will continue for many decades to come. However, at the same time, new development is coming to West Virginia. This is needed development that provides jobs for West Virginians and helps support our economy. But with this increased development comes a responsibility to set some part of our natural environment aside for those who come after us. The Monongahela Forest encompasses nearly 920,000 acres of land in the heart of the Appalachian Mountain Range and contains some of the most ecological and geological unique reaches of our State. There are currently five wilderness areas in the Monongahela including the Cranberry Wilderness and Dolly Sods Wilderness. This bill will create four new wilderness areas and expand three of the existing areas. All of the land being designated as wilderness was already being treated as either recommended wilderness by the Forest Service or as backcountry recreation. I want to extend my thanks to Congressman Rahall for his leadership on this bill and congratulate him on drafting legislation that has received the support of West Virginia's entire bipartisan congressional delegation. Like all members of the congressional delegation, I have heard from hundreds of West Virginians how wilderness is important to them. I have heard how wilderness is a major draw for the outdoor tourism industry and will provide jobs. I have heard from West Virginians who want to make sure that they will be able to continue to fish pristine streams and hunt in the forests. They want to experience the excellent hiking and backpacking the hills of West Virginia have to offer, and make sure their grandchildren have that same opportunity. But the reason I heard more than any others from West Virginians was the need to protect some small part of God's creation as His stewards on this Earth. This legislation has received support from diverse groups and people across West Virginia including the West Virginia AFL-CIO, the Fayette County Commission, West Virginia Council of Churches, and both the Pocahontas and Greenbrier County Conventions and Visitor Bureaus, just to name a few. I know that there will be people who feel that this legislation is too big and goes too far. At the same time I recognize those West Virginians who are disappointed that areas of the Monongahela Forest special to them were not included. But I believe this legislation strikes a careful balance that will protect West Virginia's forests and serve our State's interests for generations to come.

Mr. ROCKEFELLER

Mr. ROCKEFELLER. Mr. President, I rise today to introduce a critical piece of legislation, the State Fiscal Relief Act of 2008. This legislation builds upon the $20 billion State fiscal relief model passed by Congress and signed into law by President Bush as part of the Jobs and Growth Tax Reconciliation Act of 2003. It would provide $12 billion in State aid, equally divided between an increase in Federal Medicaid matching payments and general revenue sharing grants to States. Many of my colleagues may wonder why I am introducing a $12 billion State fiscal relief bill instead of a $15 billion State fiscal relief bill--the approach I have consistently supported. The reason is simple. I want to build on the strong, bipartisan support of our Nation's Governors, who have repeatedly endorsed a $12 billion fiscal relief package--with $6 billion in additional Medicaid assistance to States and $6 billion in targeted grants to States. I still worry that State deficits will only grow in the coming days, weeks, and months, but I am willing to start with $12 billion and continue my work with our Nation's Governors, health care providers, advocates, and others to get this aid to States immediately. I want to begin my remarks with the fact that leading economists support State fiscal relief. Earlier this month, Mark Zandi, chief economist of Moody's Economy.com, examined the effectiveness of the various stimulus options that Congress is considering. Dr. Zandi's analysis found that targeted State aid would generate increased economic activity of $1.36 for each dollar of cost, because it would lessen State and local government budget cuts that ``are sure to become a substantial drag on the economy later this year and into 2009.'' As a former Governor, who survived the tough times of the 1980s, I strongly believe that States deserve to be a part of the economic stimulus package currently before the Senate. State and local governments are an integral part of our national economic engine. They provide health care and a wealth of social services to millions of Americans, particularly when the economy is weak. We should act immediately to provide States with relief before they are faced with the harsh decision to cut children and families off of Medicaid. States experience enormous budget pressures when the economy slows. State revenues can evaporate rapidly during an economic downturn. Unlike the Federal Government, States cannot borrow infinite amounts of debt from China and other countries. By law, 49 States including West Virginia--are required to balance their budgets and, in times of economic downturn, this task becomes significantly more difficult. A delayed Federal response to the growing impact of this downturn on States is an invitation to disaster. We know from experience that Medicaid is consistently the first program slated for cuts during a State budget squeeze. This is not only a problem for current Medicaid enrollees; it is also a problem for hard-working Americans who have lost their jobs because of the economic slowdown. In the last year, our unemployment rate has increased to 5.0 percent with nearly 900,000 more Americans without jobs. The loss of a job is hard enough financially on an individual or family, but since the majority of Americans get their health insurance through their jobs, the loss of a job often results in a simultaneous loss of health insurance coverage. Medicaid fills the gap for working families when they lose access to private coverage. For every 1 percent increase in the unemployment rate, Medicaid enrollment increases by 2-3 million people. During the last economic downturn, the number of uninsured Americans would have been millions more if Medicaid and CHIP had not responded to the twin challenges of an economic downturn and a sharp drop-off in private health insurance coverage. A critical factor in helping States sustain Medicaid enrollment during those difficult times was the $20 billion in State fiscal relief that Congress enacted in 2003. The 2003 fiscal relief provisions went a long way to preserve health care coverage for millions of working Americans. However, we cannot discount the fact that one million low-income people had already lost Medicaid coverage because we waited two years into the recession to pass State fiscal relief. We should not make the same mistake twice. We must act quickly. There is no question that health care is economic stimulus. Insuring jobless workers encourages consumption of health care services and provides an economic boost to the health care sector. People without insurance seek treatment less often than people who are insured. Uninsured Americans not only have greater problems accessing needed care but often spend more out-of-pocket on health care, making it harder for them to spend on other things. The grants to States are also stimulative. For example, they can be used to finance unfunded Federal mandates like child support enforcement. Six economists recently wrote that ``restoring funding to the child support program will produce well-targeted stimulus to the economy because child support redistributes income toward lower-income families who are more likely to use the income to meet their consumption needs. Restoring funding to the child support program would also mean that the State and county governments would not have to lay off child support workers and reduce the level of services that they provide families in the child support program.'' One of the arguments against State fiscal relief that I continue to hear is the argument that State fiscal conditions are not that bad. We have to be very cautious about that type of argument because State fiscal situations are changing rapidly. The recent CBO report on the economy alludes to this very fact. It reads, ``Recent evidence indicates that many States respond relatively quickly to a downturn in the economy, even if it occurs after their budgets have been enacted for the year.'' We already know from the National Governors Association that 18 States have reported budget shortfalls totaling $14 billion for 2008 and 17 States project shortfalls totaling $31 billion for 2009. However, we cannot simply take a snapshot of the economy today and argue that this is not a crisis waiting to happen. The fact of the matter is that a dozen more States could be in deficit situations very soon if the downturn continues. This is especially true given the significant decline in property tax revenues in many States and the impact of the bonus depreciation provisions included in the stimulus bill in several States. As proud as I am of the 2003 fiscal relief package, I want to remind my colleagues that the $20 billion in relief was nearly too late. One million low-income people had already been cut off of Medicaid by the time that legislation finally passed because we waited two years into the recession to enact it. History does not have to repeat itself. We know that working families are at risk of becoming uninsured now and into the near future, so we must act swiftly to protect them. I urge my colleagues to support this important legislation. We have a real opportunity to proactively address a looming health care crisis. This approach is supported by the National Governors Association as well as hundreds of provider and health advocacy groups nationwide. We should not allow this opportunity to pass. Too much is at stake. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. ROCKEFELLER

Mr. ROCKEFELLER. Mr. President, I would like to bring to the attention of the Senate the work of Mrs. Esther G. Kee as she retires from the presidency of the US-Asia Institute. Mrs. Kee came to Washington, DC, in 1977 to raise awareness of the unique role Asian Pacific Americans could play in facilitating communication and interaction between the United States and the countries and people of East Asia. Following the first national gathering at the White House in 1978 of Asian American leaders throughout the United States, Mrs. Kee and her colleague, the late Joji Konoshima, were encouraged by then-President Jimmy Carter to work closely with the Honorable Richard C. Holbrooke, Assistant Secretary of State for East Asian and Pacific Affairs. An advisory council on East Asia was formed to provide insight to the State Department on issues impacting the region. From this, the U.S.- Asia Institute was established as a nongovernmental organization in 1979 to serve as an independent voice for the U.S.-Asia relationship. Mrs. Kee and Mr. Konoshima played a key role in the historic visit of Chinese Vice Premier Deng Xiaoping to the United States, traveling with him to New York, Houston, and San Francisco, and represented the U.S. overseas on numerous delegations. Mrs. Kee has worked steadily and effectively through the years to build awareness and foster mutual understanding between the United States and countries of East Asia. This quiet diplomacy has earned her the respect of many on Capitol Hill, in various administrations and in East Asia diplomatic, business, and academic circles. She has asked for no public recognition, but as she retires from the organization she cofounded, we feel it is time to say thank you for her commitment to the U.S.-Asia relationship. From small interpersonal exchanges to facilitating contacts through international conferences at the U.S. Department of State and on Capitol Hill, the Institute has strived to strengthen ties by promoting two-way dialogue between the United States and countries of East Asia. One cornerstone of the institute's engagement was the establishment of congressional staff delegations to Asia. Since 1985, these official visits have greatly increased the awareness, knowledge and understanding of Asian and U.S. views, providing invaluable opportunities for U.S. congressional advisers to gain a firsthand view of the region, its culture, its governments, and its people. More than 800 staff members have traveled to China alone since 1985 on 70 delegations. Mrs. Kee leaves an important legacy of mutual communication and understanding, and even in her retirement, she remains determined the work she began almost 30 years ago will continue. The U.S.-Asia Institute will carry on Mrs. Kee's work, promoting dialog on international issues of common interest to the United States and participating Asian nations, whenever and however possible. As she retires, we say thank you to Mrs. Kee for her sage counsel, her vision, her quiet behind-the-scenes diplomacy, and her unwavering commitment to the U.S.-Asia relationship.