Jay Rockefeller

Mr. ROCKEFELLER

Mr. ROCKEFELLER. Mr. President, on behalf of the leader, I ask unanimous consent that the Senate stand in recess until 8:20 p.m., and that at 8:30 p.m., the Senate proceed as a body to the Hall of the House of Representatives to receive the President's State of the Union Address; that upon the dissolution of the joint session, the Senate adjourn until 10 a.m., Tuesday, January 29. I further ask that following the prayer and the pledge, the Journal of proceedings be approved to date, the morning hour be deemed expired, the time for the two leaders be reserved, and that there then be a period of morning business for up to 1 hour, with Senators permitted to speak therein for up to 10 minutes each, with the time equally divided and controlled between the two leaders or their designees, with the Republican leader controlling the first half and the majority leader controlling the final half; that following morning business, the Senate resume consideration of Calendar No. 512, S. 2248, the FISA legislation, and that the Senate stand in recess from 12:30 until 2:15 to allow for the weekly caucus luncheons to meet.

Mr. ROCKEFELLER

Mr. ROCKEFELLER. Mr. President, I move to reconsider the vote.

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

Mr. ROCKEFELLER. I yield 9\1/2\ minutes to the Senator from Connecticut.

Mr. ROCKEFELLER. Mr. President, I suggest the absence of a quorum, and I ask that the time involved be divided between the two sides.

Mr. ROCKEFELLER. Mr. President, I yield 7 minutes to the Senator from Wisconsin.

Mr. ROCKEFELLER. Mr. President, how much time remains on our side?

Mr. ROCKEFELLER. Mr. President, I rise to oppose the vote to invoke cloture on the FISA bill. I have no choice but to vote against cloture in order to preserve the rights of my colleagues to have their amendments to this landmark legislation considered. It has been a very weird process. The FISA legislation before the Senate has been taken, in effect, hostage. In a transparent attempt to score political points off of national security issues, the White House has decided, once again, that scaring the American people with unfounded and manipulative claims is in order. The President's decision to use the FISA bill in a game of chicken represents a new low, even by Washington standards. The administration's practice of placing politics above national security when it serves the poll-driven agenda of its advisers has become an addiction in this White House. Even when the Senate is on the verge of producing much needed national security legislation that the President supports and wants, the addictive political cravings that have coursed through the administration's body for the past 7 years kick in once again. As is often the case, addictions produce behavior that is both irrational, and in this case more, unfortunately, self-destructive. In this case, the White House has misguidedly calculated that it is worth jeopardizing passage of a bill which they support, which strengthens the collection of foreign intelligence, in order to obtain a short-term political objective. The White House is gambling with the safety of Americans and the continued cooperation of companies that we rely on to aid in our efforts to protect our country. It is time for the Senate to take a stand and reject these reprehensible tactics. The Senate Intelligence Committee took enormous care to craft legislation that would give our intelligence community greater latitude to conduct surveillance of foreign targets while not compromising the constitutional and statutory protections afforded to Americans both here and overseas. Senator Kit Bond and I worked extremely closely on that, as we did, as I will explain, with many others. This was a painstaking process. It went over many months, but it ultimately produced this balanced legislation that the vice chairman and the committee and I sought. It is a solid bill. And I believe with some limited changes it can be a better bill; limited changes, I might add, that will in no way impede or in any way intrude into the collection of the intelligence we need. Every step of the way during the process of producing this bill gave me great satisfaction. We worked in a consultive way with the administration. These discussions have always been in good faith. We have talked as professionals, trying to work out a hard problem to which most people do not pay a lot of attention but which has enormous consequences for our country, and we have done it in good faith, the very good faith that the actions of the White House now threaten to unravel. From when the Intelligence Committee called on the administration to propose a FISA modernization bill last spring--the vice chairman and I did that--to the many committee hearings that followed, to section-by- section, line-by-line, word-by-word consultations too numerous to count that we had with the lawyers and intelligence experts in the Justice Department, from the National Security Agency, from the Office of the Director of National Intelligence to outside experts, we have worked in good faith with the administration to achieve, against, frankly, considerable odds, the unthinkable, to wit: a bipartisan bill dealing with the issues of profound complexity that has the endorsement of not only the President but also of the intelligence community professionals who will be the ones who carry out this surveillance. They want this bill. The committee included in its FISA bill a narrowly crafted provision that would provide immunity for telecommunications companies that participated in the President's warrantless surveillance program after September 11 and until the program was placed under court authorization last January. We rejected the administration's proposed open-ended language in defining very tailored immunity language. We rejected their open-ended language to extend immunity to Government officials. That was taken out. So if there was wrongdoing somewhere, do not make the assumption automatically, without thinking this thing through deeply, that it came from a private sector entity as opposed to public officials. I realize this is a controversial matter with many of my colleagues, particularly on my side of the aisle, but I reject the games that are being played on both sides: by those Senators who are prepared to filibuster the bill due to their opposition to narrow immunity, and the administration's wishes to prevent the Senate from considering any alternative amendments to the immunity provision. We should debate the liability issue fully, and the Senate should be allowed to consider alternative amendments. And I say this, and I think the vice chairman would agree with me, out of an abundance of confidence that the committee position will ultimately be sustained by the Senate in the end. The majority leader has made prompt passage of the FISA bill the top priority for the Senate. He pushed off other subjects so that it could be conferenced with the House and eventually be placed on the President's desk for his signature. If allowed, the Senate can complete action on the FISA bill in a matter of a few days. Unlike many bills the Senate considers where the number of amendments that can be disposed of can approach or exceed 100 or 150 or 175, passage of the FISA bill will probably involve relatively modest numbers of amendments and a very manageable number of amendments. I estimate that number would be somewhere in the 12-to-15 amendment range, probably fewer. Some of these amendments I would support as needed as improvements to the bill of the committee, the Intelligence Committee. Many I would oppose because of my concern that it would undo the careful balance we achieved in the underlying Committee bill. This is a stitched piece of work between collection of intelligence for the national security and the rights and privacy of individuals. I will oppose anything that undoes that balance. The amendments that are likely to pass with a majority vote, at least in my view, such as the Feinstein exclusivity and Cardin sunset amendments, are further refinements of provisions already in the Intelligence Committee bill, and they in no way bear on the collection of intelligence authorities sought and provided by our bill. Those that would undercut these authorities to be able to do collection, I am confident, would go down to defeat. But the Republican leadership, under orders from the White House, objected to these amendments being considered and voted on, and the bill passed before the February 1 expiration of the temporary and flawed Protect America Act passed last August. So that is where we are going to be unless we can resolve this in the Senate, which we could do by the end of the week. Why? Why has the White House used obstructionist tactics to prevent the Senate from passing a FISA bill that it wants, that it has declared acceptable? The President says he wants the Intelligence Committee bill passed as soon as possible. He said as recently as last Friday that he understands there may be some limited number of changes that will be needed to make the bill stronger. Others, including Minority Leader McConnell and Vice Chairman Bond, also have acknowledged the reality that amendments will have to be brought up and voted on before the Senate can pass the bill. That is, after all, the way of the Senate. Why, then, are they preventing the Senate from voting on the limited number of amendments before us and passing the bill, a bill that they want? Why? A bill that has everything to do with the future of our country, our national security, and a bill which we will not soon come to again if we don't achieve success in the coming days. The majority leader has repeatedly offered the proposal to extend the February 1 expiration date in the current stopgap law 30 days to allow sufficient time to complete our work on the legislation. But each time this 30-day extension consent request was sought, it was killed by the Republican leadership under orders from the White House. Why in the world would a temporary extension be objectionable to a President who is on record as saying he doesn't want the current law to expire without a more lasting FISA modernization bill in place? Yet, in one of the most astounding ``Alice in Wonderland'' moments I have ever witnessed in my time in the Senate, the White House announced last week that the President would veto a 30-day extension of the current foreign collection authorities passed by Congress. So let's recap. The President wants the FISA bill passed by the Senate, but he has sent the decree down to the Republican leadership that they are to prevent its prompt passage. Well, prompt passage we have to have. The President does not want the current 6-month Protect America Act to expire this Friday. He does not want that to happen. But he has stated he will veto any extension and thereby ensure that it will expire. What more evidence is needed to demonstrate the irrational and self-destructive political addiction that drives this White House? Doesn't drive the vice chairman of the Intelligence Committee, I guarantee that. Under the tortured logic of protecting America against terrorism, the White House has decided to exercise, frankly, its own form of political terrorism and has taken the FISA bill hostage. From the beginning, the administration has demonstrated a deep-seated contempt for the role of Congress in authorizing and monitoring intelligence activities. Whether it is the National Security Agency's warrantless surveillance program or the Central Intelligence Agency's secret detention and interrogation program, the White House for over 5 years walled off the Congress and the courts from conducting the sort of meaningful oversight and checks and balances that are essential to making sure our intelligence programs are on sound legal operational footing. To make matters worse, the administration has successfully used objections and delaying tactics over the past 3 years to keep the intelligence authorization bill from being passed and signed into law. It is this flawed policy of Executive Branch unilateralism that has created the mess we are now dealing with. There is no possible way I can overstate the importance of this bill. But it is hard to explain. Everybody can grasp on to the immunity issue, leap to one side or the other, often without sufficient thought. But the bill as a whole, meshed together as a whole like an Appalachian quilt, is a thing of beauty, can be improved, and should be passed. Nevertheless, I urge my colleagues to oppose the Republican cloture motion on the FISA bill so that we can reassert something called the role of Congress that we must play on these and other important national security matters. Oversight is what we do. We don't write a lot of bills in the Intelligence Committee, but we do oversight. But it is not welcome in the current atmosphere. I urge my colleagues to oppose the Republican cloture motion so that we can consider on their merits the limited, manageable number of amendments to the bill and, in the process, push bipartisan FISA reform across the finish line. I know Vice Chairman Bond and others are ready to get back to business and start disposing of amendments. I feel confident that he and I, as managers of this bill, will work closely, as we have in the committee, to ensure that we do no unintended harm to this bill in the matters of collection of intelligence or any other unbalancing of this Appalachian craftwork. There is still time for the Senate to work its way on the FISA bill and pass it before the week's end. I hope we do so. I yield the floor.

Mr. ROCKEFELLER

Mr. ROCKEFELLER. Mr. President, if there is no further business to come before the Senate, I ask unanimous consent that the Senate stand in recess under the previous order.

Mr. ROCKEFELLER

Mr. ROCKEFELLER. Mr. President, the distinguished vice chairman, Senator Bond, and I have joined in a bipartisan amendment to S. 2248, the FISA Amendments Act of 2008. The Rockefeller-Bond amendment perfects various details of the underlying bill but its main purpose is to provide explicit statutory protection, for the first time in the 30 years of FISA, for Americans who are outside the United States. The amendment stands for the simple proposition that Americans, whether they are working, studying, traveling or serving in our Armed Forces outside the United States, do not lose their rights as Americans when it comes to the actions of their own Government. In 1791, when the Bill of Rights was ratified, including, of course, the fourth amendment, which protects our people from unreasonable search and seizure, there were 4 million Americans. That was it. Now that very number of Americans, 4 million, lives outside the United States and, of course, many millions more travel each year outside the United States. Because this amendment is so important and because it has gone through so much development to reach the point at which we have now arrived, I would like to take, frankly, a few minutes to describe its origin and evolution, with the forbearance of my colleagues. The protection of Americans outside the United States may have been the single most important piece of business left undone by the original FISA statute created in 1978. To fill that void, President Reagan issued an executive order, Executive Order 12333, that addresses the use of intelligence techniques such as electronic surveillance or unconsented searches against Americans abroad. Executive Order 12333 requires that intelligence agencies have procedures and that those procedures protect the constitutional rights of Americans overseas. It also requires the Attorney General to determine that there is probable cause to conclude that the American overseas is an agent of a foreign power before the U.S. Government undertakes electronic surveillance or conducts searches abroad against that person. That was good but insufficient. In our country of laws, we do not usually leave it, outside of an emergency, to any Attorney General to decide alone whether there is probable cause for a search. That is a decision which we entrust to neutral judges. Our bipartisan amendment--Senator Bond's and mine--makes sure Americans do not lose that important protection by setting foot outside the United States. Vice Chairman Bond and I took the first step when we included, in our October Intelligence Committee mark, a provision concerning acquisition by the intelligence community of the communications of U.S. persons abroad. We focused our proposal on the circumstance when the Government is seeking those communications from electronic communication providers within the United States. We did not address the targeting of U.S. persons overseas by intelligence community collection methods that are employed outside the United States. The provision before the Intelligence Committee in its October markup would have allowed the Attorney General to determine that a U.S. person outside the United States was a foreign power, agent of a foreign power, or an officer or employee of a foreign power, and then target that person for collection. Under our proposal, the Attorney General would then have been required to submit that probable cause determination to the FISA Court for review. But as the chairmen and ranking members of committees sometimes learn from their full membership of their committees, important ideas may require broad solutions. During our committee markup, Senator Wyden offered an amendment on targeting U.S. persons abroad that substituted two new sections in place of the language described above on targeting U.S. persons abroad. First, the Wyden amendment required the Government to obtain a standard FISA order for electronic surveillance--known as a title I order--before the Government could target U.S. persons outside the United States by seeking their communications from providers in the United States. Thus, rather than the new procedure described in our chairman and vice chairman mark, the amendment required a title I FISA application and order whenever the collection against an American abroad occurred with the assistance of a provider in the United States. Second, the Wyden amendment required that the Government, when acting outside the United States, obtain a FISA Court order before targeting the communications of U.S. persons located outside the United States. Specifically, it required a FISA Court order that there was probable cause to believe that the U.S. person who was the target of surveillance was, in fact, a foreign power or an agent of a foreign power before the Government employed surveillance techniques outside the United States. This second part of the Wyden amendment implemented an entirely new concept of law. A court order has never before been required for foreign intelligence collection that is conducted entirely outside the United States, even if that collection involves U.S. persons. But while new, it quickly became evident it was an idea whose time had come. The Wyden amendment passed the committee with a vote of 9 to 6. Yet, as often is the case for an initial amendment of such magnitude, it was also immediately clear that further work needed to be done before the proposal became law to make sure it worked well in practice. During the markup, Senator Whitehouse, who is a member of the Judiciary Committee--and in his first year in this body has already emerged as a leading legal voice among us--stated he would be willing to work on the language of the amendment in the Judiciary Committee, on which he also serves, during the sequential referral process to ensure that it achieved its desired goal and did not result in unintended decreases in collection. Senator Whitehouse, working with the Department of Justice, was largely responsible for the changes made to the provision on U.S. persons outside the United States that is included in the Judiciary Committee substitute amendment. It is a good amendment. He focused his efforts to changes on the second part of the section, the portion relating to collection of electronic communications outside the United States. The provision requiring a traditional FISA electronic surveillance application for collection inside the United States remained mostly unchanged in the Judiciary Committee markup. The Judiciary Committee amendment makes some necessary technical fixes to the section on collection outside the United States. It stressed that the FISA Court would only be permitted to assess the question of probable cause for collection outside the United States, not the methods of acquisition of the information, as any such inquiry might delve into very sensitive intelligence matters. The Judiciary Committee section on collection outside the United States also made three other important changes: First, the addition of emergency procedures, similar to those included in other parts of FISA, that would allow the Attorney General to acquire the information as long as a subsequent order is obtained; second, a more explicit, individualized review of minimization procedures; and, third, the addition of procedures to transition current acquisitions under Executive Order 12333 over to the new procedure. The managers' amendment, offered by Senator Bond and myself, now seeks to complete this process by fully integrating the new procedure into the overall reforms contained in the FISA Amendments Act of 2008 and does so in a manner that maintains an effective system of intelligence collection. In the course of doing that, we have sought to resolve, in conjunction with the Department of Justice and the intelligence community, several problems identified with the Judiciary Committee substitute. The most significant changes in the managers' amendment have been made to the first part of the Wyden amendment: the requirement that the Government obtain standard electronic surveillance--title I--orders for the targeting of U.S. persons abroad that occurs within the United States. That provision, as of this moment, remains a part of our base bill and will remain so until an amendment is adopted. As I will discuss in more detail, our proposed changes are required because the language of this provision, as reported out of both the Intelligence and Judiciary Committees, would prevent certain types of important foreign intelligence collection. First, the definition ``agent of a foreign power'' in FISA, which requires a U.S. person to have engaged in certain types of wrongdoing, is different than the definition of ``agent of a foreign power'' that has traditionally been used in overseas collection against Americans. The Director of National Intelligence has therefore proposed, and we agree, that collection against a U.S. person abroad should be expanded beyond ``agent of a foreign power'' to ``an officer or employee of a foreign power,'' to cover the types of collection that have traditionally been allowed against U.S. persons overseas. For example, the notorious Charles Taylor, the former President of Liberia, who is now charged with crimes against humanity, is an American who was an officer of a foreign power. Second, the Judiciary Committee provision did not deal with the issue of stored electronic communications or stored electronic data, the collection of which is dealt with under title III rather than title I of FISA and which are an important part of the acquisition system that is established by the new title VII that S. 2248 will add to FISA. To address this issue, the managers' amendment that Senator Bond and I are proposing, after extensive technical consultations with the intelligence community and the Department of Justice, adds two sections to the new title VII in our committee's bill, and, in so doing, addresses the intelligence collection concerns identified by the Director of National Intelligence. By placing all the relevant detail for collection against U.S. persons overseas in the same new title of FISA--title VII--that includes all other procedures for persons outside the United States, the managers' amendment provides a comprehensive, consolidated roadmap for all those in the intelligence community, the Department of Justice, and the FISA Court who will have the responsibility to implement our amendment. In conclusion, I would like to underscore some major points. As is evident from everything I have described, it is important to thank two members of our committee for their work on this issue of targeting Americans overseas. Senator Wyden, obviously, is one of those. I wish to recognize his leadership at all times in this area. He recognized the importance of the issue and successfully offered an amendment at the Intelligence Committee mark-up that broadened the protections contained in our bill. Senator Whitehouse has been indispensable contributor to the effort on this provision as well, quietly working out problems and making things work better. His work goes a long way toward ensuring that the provision can be successfully implemented by the intelligence community, which is key. By adopting this amendment on a bipartisan basis, the Intelligence Committee--and now the vice chairman and myself in our managers' amendment--seek to ensure that Americans are protected from unwarranted surveillance, whether they are inside or outside the United States. This is a significant new protection for U.S. persons. When the United States conducts foreign intelligence collection overseas on a U.S. person located outside the United States, currently only the Attorney General, not a court, makes a probable cause determination. I have said that. U.S. citizens have never before been entitled by statute to court protection in this area. Now, hopefully, they will be. Our bipartisan goal is clear: A court must be involved when U.S. persons are targeted for surveillance, no matter where those persons are located or how they are targeted. We are also in agreement that our original committee provision and the work of the Judiciary Committee needed refinement to ensure it did not have unintended consequences that might limit the collection of foreign intelligence information. The purpose of our amendment is to make sure we do not reduce the scope of any current intelligence collection. Our managers' amendment accomplishes this goal. Under the managers' amendment, if a U.S. person is targeted overseas by using a communications provider within the United States, FISA will now require that the Government submit an application to the FISA Court and obtain a FISA Court order. Although the process to obtain the order is tailored to address some of the operational concerns relevant to the issue of collection on U.S. persons located outside the United States, and consolidated in a new title of FISA, the procedures are as robust and protective of the privacy rights of U.S. persons as existing FISA procedures. If the acquisition occurs outside the United States, FISA will now require that the FISA Court issue an order finding that there is probable cause to believe the U.S. person who is the target of the acquisition is an agent, officer or employee of a foreign power, without involving the FISA Court in the methods of overseas collection. Those methods of overseas collection will continue to be governed by applicable executive branch directives, such as Executive Order 12333, which impose limits on intelligence agencies in order to protect the constitutional rights and other legal rights of Americans. Mr. President, I urge the adoption of this amendment.

Mr. ROCKEFELLER. Mr. President, I wish to take a few minutes to describe to the Senate my views on the amendment reported by the Judiciary Committee, and why I will be opposing the amendment when we vote at 2. First, I wish to repeat a few comments I made in my opening remarks when we debated the motion to proceed to S. 2248 in December. From the beginning of the Senate's consideration of foreign intelligence surveillance legislation in 1976, the resulting law--the Foreign Intelligence Surveillance Act of 1978--has been the joint responsibility of both the Intelligence and Judiciary Committees. FISA is, after all, a law that concerns both intelligence collection and judicial proceedings. The bill now before the Senate, S. 2248, was reported to the Senate by the Intelligence Committee last October, and then sequentially reported to the Senate by the Judiciary Committee in November. As a parliamentary matter, the measure as reported by the Judiciary Committee is the pending amendment to the bill reported by the Intelligence Committee. I agree with a number of the recommendations of the Judiciary Committee. I have been pleased to work with members of the Judiciary Committee on modifications that address particular concerns that had been raised by the administration. I will accordingly support individual amendments to add those recommendations, as modified when necessary, to S. 2248. These include a strengthened exclusivity provision, a 4-year sunset, court review of compliance with minimization procedures, and an inspectors general report on the President's warrantless surveillance program in order to ensure there is a comprehensive historical record of that experience. While I support many aspects of the Judiciary amendment, I cannot agree with recommendations of the Judiciary Committee that may have an adverse impact on U.S. intelligence collection or collection analysis, and that are not warranted by a realistic concern about U.S. privacy interests. If any of those provisions are offered as individual amendments, I will, of course, study them, but must reserve the right to oppose them. I will illustrate my concern by describing two provisions of the Judiciary amendment. The Judiciary Committee substitute contains a ``significant purpose'' requirement. This has been described as a way to prevent reverse targeting--that is, conducting surveillance of a person overseas when the real target of the surveillance is a person within the United States. The Intelligence Committee bill already explicitly codifies the existing prohibition on reverse targeting. What the Judiciary Committee substitute actually does is turn the reverse targeting prohibition on its head. I fear it would impose a new affirmative requirement that the government must seek a FISA Court order when in the course of targeting a foreign person outside the United States the government incidentally collects the communications of U.S. persons. This is unworkable and would create untenable gaps in our intelligence coverage without significantly enhancing the privacy of Americans. Incidental communications with or about Americans should be handled properly, through minimization--a process that is strengthened in our bill. But the fact that there may also be a foreign intelligence interest when a foreign target is in contact with the United States should not be the cause of making it more difficult to undertake the surveillance of the foreign target. The Judiciary Amendment also includes a provision altering the consequences of a FISA Court determination that there is a deficiency in the Government's targeting or minimization procedures under the new foreign targeting authority that will be enacted in S. 2248. Upon such a court determination, the Intelligence Committee bill would require the Government to either correct the deficiency or cease new acquisition. The Judiciary Committee provision goes beyond the requirement that deficiencies be corrected or new acquisitions ceased. It would take the further step of preventing all use of information already acquired under the new procedure that concerns U.S. persons, unless the Attorney General determines that the information indicates a threat of death or serious bodily harm. The provision is impractical. And it creates risks that we will lose valuable intelligence. The Judiciary Committee provision would require intelligence analysts to go through all of the intelligence that had been collected under the new process--presumably a very large collection of materials--to identify information that might be subject to the restriction and make sure that it had been not used in disseminated intelligence. Even for minor deficiencies in procedures, this provision would therefore require the Intelligence Community to discard information that might constitute significant intelligence, and to focus its analytical resources on satisfying this provision rather than collecting and analyzing new intelligence. In my view, this allocation of resources makes no sense. At the end of our debate this morning, the Senate will be asked to vote on the pending Judiciary Committee amendment as a whole, either by way of a tabling motion or directly on the amendment. Although, as I have indicated, there are parts of the Judiciary amendment that I look forward to supporting, there are two reasons, with all respect to the members of the Judiciary Committee, why I cannot support the pending substitute amendment as a whole. The first is that the form, and consequently the effect of the amendment, goes beyond what the members of the Judiciary Committee decided during their deliberations, and guts key parts of S. 2248 beyond any reasons agreed to by a majority of the Judiciary Committee. S. 2248 has two substantive titles, in addition to a third title on transition procedures. The first title addresses intelligence collection; it is the direct replacement of the Protect America Act. The second title addresses the many lawsuits against telephone and internet companies for their alleged cooperation with the Government. At its markup, the Judiciary Committee rejected, by a clear 7-to-12 vote, an amendment to strike title II on liability protection. Previously, the Intelligence Committee had voted against striking title II by a 3-to-12 vote. In short, while there may be good ideas, that certainly merit debate, about improving title II, there has not been majority support in the Senate for striking it. Yet, notwithstanding the lack of support in either the Judiciary or Intelligence Committee for striking title II, the form in which the Judiciary Committee reported its amendment would do just that. We will welcome a debate about improving title II, but on behalf of the Intelligence Committee--which voted overwhelmingly for title II--I must defend keeping title II in the base text before the Senate. For that reason alone, I must oppose the Judiciary amendment, even as I support individual elements of it. Second, as I have previously mentioned, even with respect to title I, there are portions of the Judiciary amendment that I must oppose on the ground that they will have an adverse impact on intelligence collection or the use of intelligence that is not warranted by a realistic concern about U.S. privacy interests. Accordingly, with great respect for my colleagues on the Judiciary Committee, I will vote against the Judiciary amendment. I also look forward to joining them in urging the adoption of specific amendments to improve the Intelligence Committee bill.

Mr. ROCKEFELLER. Mr. President, I send an amendment to the desk on behalf of myself and Senator Bond and ask for its immediate consideration.

Mr. ROCKEFELLER. Madam President, the Senate now returns to the consideration of S. 2248, the FISA Amendments Act. As I said in December when we debated the motion to proceed to this bill, I believe this legislation is critical to our Nation's security. That phrase is thrown around a lot--``our Nation's security.'' It does have meaning. To protect America from the panoply of threats we face around the world, we must know what our enemies are planning and what they are doing. We get that information through our intelligence agencies, and one of the most useful sources for them is communications intelligence. The Foreign Intelligence Surveillance Act, or FISA, gives the Government the authority, with court approval, to collect communications intelligence inside the United States. Unfortunately, the law has not kept pace with the incredible advances in telecommunications technology of the last 30 years. As this debate proceeds over these coming days, it is important for all Members to understand why FISA exists and why it is necessary for us to update it. The Congress passed FISA to protect Americans inside the United States from inappropriate eavesdropping by the Government. The FISA statute created a system that allowed the Government to go to a special court and show probable cause that someone inside the United States was an agent of a foreign power. If it agreed, if the court agreed, the court then issued an order allowing the Government to collect the intelligence. Over time, the flow of global communications changed. The nature of these communications changed. The system of fiber optic cables carrying international communications grew, and wireless technology began to dominate our domestic system. This was a marked change from the communications architecture that existed in 1978, when FISA was started, when local calls were transmitted over a wire and international ones usually went via satellite. As technology changed and America became the hub for international communication, our intelligence agencies were presented with collection opportunities that were never envisioned--never even thought about in 1978. But because of the way that FISA was drafted, they were unable to take advantage of the new opportunities to collect significant intelligence inside the United States against targets located overseas. After September 11, 2001, the President chose to deal with the problem unilaterally and created a warrantless surveillance program that relied on, to my mind, questionable legal justification. I think that was a mistake. I believe the President should have sought, and would have received from Congress, the necessary changes to FISA to accommodate the international communications he wished and needed to target. The public disclosure of the warrantless program ultimately led the President to seek approval from the FISA Court and then to seek additional authority from the Congress, which is where we are. Our first attempt to address this issue was the Protect America Act passed last August. That legislation allowed our intelligence community to undertake the collection needed to monitor terrorist communications, but the PAA, as we shall call it, is flawed legislation that does not achieve the balance between protecting security and preserving our civil liberties, which is so essential. It provided an expanse of new authority to collect intelligence inside the United States, with little court involvement or oversight from the Congress. But we had the foresight to include in the PAA--the Protect America Act--a 6-month sunset. That 6-month period allowed us the time we needed to craft a bill that does achieve this important balance: security and civil liberties. It gives the intelligence community the authority it needs to keep us safe, and it puts in place the safeguards needed to protect America's liberties. That is the bill the Senate is now considering; i.e., S. 2248. This bill was reported to the Senate last October on a strong bipartisan vote under Senator Bond and myself, Vice Chairman Bond and myself, by a vote of 13 to 2. Vice Chairman Bond and I worked hard to craft a bill that would garnish support from both sides of the aisle and that would have the support of the administration, leaders of the intelligence community and, most importantly, would achieve our twin goals of protecting the security and privacy of Americans. I should say at this point we went to great lengths to check all our bases in this process. We didn't do this in a cocoon and we didn't do it in a partisan way. We reached out to the experts, whether they were inside the administration or outside the administration. We wanted to do it so we could make this legislation as effective as possible. But, as with any legislation, this bill is not perfect. I have welcomed the input from others as we have moved forward. On this point, I must particularly acknowledge the work of the Senate Judiciary Committee. The Judiciary and Intelligence Committees shared jurisdiction over FISA. The Judiciary Committee also happens to be led by two individuals with considerable knowledge and experience with these issues from the perspective of both committees. It may not be known to all, but Senator Pat Leahy served as vice chairman of the Intelligence Committee in the mid-1980s, and Senator Specter served as chairman in the mid-1990s. I appreciate the time and thought they have put into this legislation. The Judiciary Committee considered the Intelligence Committee bill on sequential referral and has reported a proposed amendment to our bill. That amendment is now the pending amendment. The Intelligence Committee bill and the Judiciary Committee amendment take a similar approach to addressing the underlying problems with FISA--not a huge difference. The Judiciary Committee included several provisions that I think further improve the already robust protections for privacy contained in S. 2248. We were enriched by working with them. I intend to support amendments to incorporate many of these changes into the underlying bill, which is the Intelligence Committee bill, and even though I cannot support everything in the Judiciary Committee substitute amendment, nevertheless, there is very good material there. Before I discuss possible amendments, let me take a few minutes to walk through the bill before us today. I apologize, but I think this is necessary as we begin this debate on what is a highly complicated and somewhat arcane subject. In crafting this legislation, the Intelligence Committee set out to accomplish four main goals. First, we wanted to ensure that activities authorized by this bill are only directed at persons outside the United States. The bill requires the FISA Court to approve targeting procedures designed to accurately make the determination of whether someone is outside the United States. For individuals inside the United States, the existing procedures under FISA continue to apply. Individual court orders, FISA orders, are still required. Secondly, our bill improves the protection of information from or about a U.S. person. Unlike the Protect America Act, this bill provides for court review of the so-called minimization procedures. These are procedures used to shield information about Americans who may be overheard or mentioned in the conversation of foreign targets. Court review of these procedures is central to the protection afforded under FISA. But the FISA Court's role was left out of the Protect America Act. Third, the bill includes a new protection for U.S. citizens outside the United States. The Intelligence Committee rejects the proposition that Americans lose their privacy rights because they travel or work elsewhere in the world. Under current law, the intelligence community can target U.S. citizens outside the U.S. solely on the authority of the Attorney General. Our bill requires an order of the FISA Court before an American can be targeted, regardless of the American's location. This is a concept that both committees endorsed, and it enjoys bipartisan support. Director of National Intelligence Mike McConnell also endorsed this in testimony before the Intelligence Committee. This is an area of law, however, that requires careful attention to avoid, as the Director described, ``unintended consequences.'' Both the Intelligence Committee and Judiciary Committee approaches need further refinement. Therefore, I believe we have reached an agreement on a bipartisan amendment that would reconcile the approaches of the two committees and resolve the concerns of the administration. Vice Chairman Bond and I will offer this modification as part of the managers' amendment. Finally, the Intelligence Committee bill adds significant new oversight authority to collect inside the United States against foreign targets. The new oversight will be conducted by all three branches of Government. The bill includes a series of annual reports to Congress on the authorized collection, including instances of noncompliance; inspector general reviews by the Justice Department and the Intelligence Committee; and FISA Court review and approval of acquisition and minimization procedures. Beyond these steps to update FISA, the other major component of the bill passed by the Intelligence Committee--and, unfortunately, not included in the Judiciary Committee amendment--is liability relief for companies that may have helped the Government collect critical intelligence after the September 11 terrorist attacks. I understand this is controversial. But everybody should know that this is an issue the Intelligence Committee has considered very carefully. We had a number of hearings on this subject. In reviewing the record of correspondence from the administration to these companies, I and most members of the committee became convinced that companies acted in good faith. They relied on the legal conclusion of the Nation's most senior law enforcement official, and they provided assistance because they wanted to help stop terrorist attacks. The companies received letters, and I tried very hard to convince Steve Hadley--Director McConnell very much approved of this--to make it possible for every Member of the Senate to have those letters that the companies received from the National Security Agency, so Members could understand that this was not some kind of a game, that this wasn't ``wordsmithing.'' What these letters stated was that the companies' assistance was ``required,'' that the requested assistance was based on an order of the President, and that the Attorney General had certified the legality of the order. And then the NSA Director, as I say, required, compelled these companies--there were various uses of words, but they were all very firm, leaving no wiggle room--to comply. And they did. They did it because they were told to do so by the highest authorities in the land. They did so because--I believe it is possible to say this--there are a lot of big corporations that are very patriotic. Private companies should be allowed to rely on this assertion from these high officials. They should be allowed to do that. Our longstanding legal structure is specifically designed not to force a private company to second guess the Government in these circumstances. I know many colleagues on the other side believe that the President acted with his constitutional authority when he established this program. I believe the legal foundation for this program was questionable at best and was part of an overarching legal framework that sought to dramatically alter the balance of power between the branches of power in favor of the executive. But that is a dispute that needs to be settled between the President, the Congress, and the courts. We should not allow private companies who simply wanted to come to the aid of their country, or were required or compelled to do so, to be caught in the crossfire of this disagreement. A bipartisan consensus of the Intelligence Committee supported the narrowly drawn liability relief included in the bill. We did not include the open-ended immunity sought by the administration that would have prevented suits against the Government, or Government officials who knowingly broke the law. The committee's liability relief provision applies only to companies who may have participated in the warrantless surveillance program after September 11, 2001, until January 2007, when the whole matter was placed under FISA Court authority. That is why there can be no question about prospective; it is retrospective. The question of whether the President had the authority to launch the warrantless surveillance program leads me to the issue of exclusivity. This is whether FISA is the exclusive means by which the President may authorize the surveillance of Americans for foreign intelligence purposes. The President's justification for creating the warrantless surveillance program relied in part on a claim that the legislation authorizing the use of military force after 9/11 somehow gave him the authority to ignore the FISA statute. I don't buy this argument. The President also claims he has the authority, as Commander in Chief, to approve surveillance even when statutes of this coequal branch of Government would prohibit him specifically from so doing. No act of Congress by itself can finally resolve the debate between Presidential and congressional authority. We can make it clear, however, which statutes authorize the use of electronic surveillance. This is not academic. It is important to clarify this point for the future. When the Nation next faces a military emergency, we don't want Congress to hesitate while it debates whether its authorization to use force will have unintended consequences, such as authorizing the President to spy on Americans. To avoid this situation, both the Intelligence and Judiciary Committees included provisions intended to clarify which statutes constitute the exclusive means for conducting electronic surveillance. I have worked with Senator Feinstein, who serves on both committees, and Senator Leahy on an amendment that will bridge the differences between the two bills and will settle this issue in a way that I think clarifies the statute. Another important provision is the sunset. This bill provides a significant new authority, and it is essential--because it is a significant new authority in what is still emerging in the collection of intelligence--that we carefully monitor the implementation of this authority and revisit it to ensure it is working as we now envision. The Intelligence Committee bill includes a 6-year sunset. The Judiciary Committee has a 4-year sunset. I will join with Senator Cardin and others in support of an amendment to incorporate the Judiciary Committee 4-year sunset into the underlying bill. Four years will ensure that the decision on permanency is made during the next Presidential term. As we proceed with this debate, every Member should have the same two goals we had in the Intelligence Committee: providing our intelligence professionals with the tools they need to keep us safe, and establishing a system with sufficient safeguards to ensure that Americans' civil liberties are protected over the long term. I think the Intelligence Committee bill does that, and with a few changes it will be even stronger. I yield the floor.

Mr. ROCKEFELLER. I ask unanimous consent that reading of the amendment be dispensed with.

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

Mr. ROCKEFELLER. Mr. President, I ask unanimous consent that the time until 2 p.m. today be for debate prior to the vote in relation to the Judiciary Committee amendment, as modified, with no amendment in order to the amendment prior to the vote, with all time equally divided and controlled between Senators Leahy and Bond or their designees, with the 30 minutes prior to the vote divided as provided above, with Senator Leahy controlling the final 15 minutes and the vote will be at 2.

Mr. ROCKEFELLER. Would the distinguished vice chairman be willing to yield for a parliamentary matter?

Mr. ROCKEFELLER

Mr. ROCKEFELLER. Mr. President, I rise today to introduce an important piece of legislation, the MediKids Health Insurance Act of 2007. This legislation will provide health insurance for every child in the U.S. by 2014, regardless of family income. My long-time friend from California, Congressman Stark, introduced companion legislation earlier this year in the House. He has worked tirelessly to improve access to health care for all Americans, and I am pleased to join him once again to advocate on behalf of America's children. This past year, the majority in Congress made it clear that improving health care access for children was a priority. I proudly worked with my colleagues in a truly bipartisan fashion to reauthorize and expand the Children's Health Insurance Program, CHIP, to meet the serious health care needs of children in a very cost-effective manner. This legislation, which had the support of Democrats and Republicans in both chambers of Congress, would have maintained health insurance coverage for the over 6 million children currently enrolled and expanded health insurance coverage to an additional 4 million uninsured children. Unfortunately, the President, in vetoing this legislation not once, but twice, has shown the nation that providing health insurance to children is simply not a priority. I am outraged by the President's decision to veto this legislation multiple times, but I remain committed to making health insurance a reality for all children. Congressman Stark and I have introduced our MediKids legislation in each of the last four Congresses because we know how vital health insurance is to a child. Children with untreated illnesses are more likely to miss school, leaving them at a disadvantage both in their health and education. Also, parents with sick children must miss work to care for them. These factors make it less likely uninsured children will move out of poverty and present significant barriers to becoming productive members of society. We can have a positive impact on our children's lives today, as well as tomorrow, by guaranteeing health insurance coverage for all. Children are inexpensive to insure, but the rewards for providing them with health care during their early education and development years are invaluable. Despite the well-documented benefits of providing health insurance coverage for children, according to the Kaiser Family Foundation, there are still over 9 million uninsured children in America. We can and must do better. Our children are our future. No child in this country should ever be without access to health care. This is why I am proud to reintroduce the MediKids Health Insurance Act. This legislation is a clear investment in our future--our children. Every child would be automatically enrolled at birth into a new, comprehensive federal safety net health insurance program beginning in 2009. The benefits would be tailored to meet the needs of children and would be similar to those currently avable to chldren through the Medicaid Early and Periodic Screening, Diagnosis, and Treatment, EPSDT, program. Families below 150 percent of poverty would pay no premiums or copayments, while those between 150 and 300 percent of poverty would pay graduated premiums up to 5 percent of income and a graduated refundable tax credit for cost sharing. Families above 300 percent of poverty would pay a small premium equivalent to \1/4\ of the average annual cost per child. There would be no cost sharing for preventive or well-child visits for any child. MediKids children would remain enrolled in the program throughout childhood. When families move to another state, Medikids would be available until parents enroll their children in a new insurance program. Between jobs or during family crises, Medikids would offer extra security and ensure continuous health coverage to our Nation's children. During the critical period when a family climbs out of poverty and out of the eligibility range for means-tested assistance programs, MediKids would fill in the gaps as parents move into jobs that provide reliable health insurance coverage. Our program rests on the premise that whenever other sources of health insurance fail, MediKids would stand ready to cover the health needs of our next generation. Ultimately, every child in America would grow up with consistent, continuous health insurance coverage. Like Medicare, MediKids would be independently financed, would cover benefits taylored to the needs of its target population, and would have the goal of achieving nearly 100 percent health insurance coverage for the children of this country just as Medicare has done for our Nation's seniors and individuals with disabilities throughout its more than 40- year history. When Congress created Medicare in 1965, seniors were more likely to be living in poverty than any other age group. Most were unable to afford needed medical services and unable to find health insurance in the market even if they could afford it. Today, it is our Nation's children who shoulder that burden of poverty. Children in America are nearly twice as vulnerable to poverty as adults. It is time we make a significant investment in the future of America by guaranteeing all children the health coverage they need to get a healthy start in life. Congress cannot rest on the success we achieved by expanding Medicaid and passing the Children's Health Insurance Program. Although each was a remarkable step toward reducing the ranks of the uninsured, particularly uninsured children, we still have a long way to go, as is evidenced by the millions of children who are still uninsured. It's long past time to rekindle the discussion about how to provide health insurance for all Americans. Americans have told us loud and clear that they want leadership in solving the health insurance crisis. The bill I am introducing today--the MediKids Health Insurance Act of 2007--is a comprehensive approach toward eliminating the irrational and tragic lack of health insurance for so many children in our country. I urge my colleagues to support this legislation. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. ROCKEFELLER

Mr. ROCKEFELLER. I thank the Chair. Today, the Senate begins debate on S. 2248, the FISA Amendments Act of 2007. I am confident in saying without any risk of exaggeration that FISA modernization is one of the most important matters that will be considered by this Congress. It calls on us to get two essential matters entirely right--protection of our national security and the preservation of the privacy of our citizens. I am proud of the substance of the bill the Intelligence Committee reported to the Senate in late October on a strong bipartisan vote of 13 to 2. I am equally proud of the process by which we achieved that result. The distinguished vice chairman of the committee, Senator Christopher Bond, and I provided simple guidance for all who worked on this bill: First, work together, reach out; second, reach out particularly to the intelligence community and the Department of Justice for their expertise; third, keep in mind at all times the fundamental principles of protecting both the security and the privacy of all Americans; and finally, remain united in our effort to produce a bill that will meet the test of Congress and that will be signed into law by the President. I am also grateful to all members of our committee for their contribution. As the Senate can see from our report, we debated and voted on highly important issues. We then sought as a committee to lay out for the entire Senate and the American public a description of our bill, the reasons for it, and, in additional views, further improvements that Members might seek. Our report is on each Member's desk. It is also on our committee's Web site and the Web site of the Library of Congress. I urge every Member of the Senate to read it, including a careful section-by-section explanation of the bill. Of course, some sensitive intelligence matters cannot be described in a public report. That makes this something of an awkward procedure. If any Member has a question about a classified matter, please let the vice chairman or myself know, and we will do our best to answer your questions in a classified setting. I am also pleased that we will be sharing the management of this debate with Senator Leahy and Senator Specter, the distinguished chairman and ranking member of the Judiciary Committee. From the very beginning of the Foreign Intelligence Surveillance Act of 1976, it has been a joint responsibility of the Intelligence Committee and the Judiciary Committee. It is, after all, a statute that concerns both intelligence collection and judicial proceedings. The Judiciary Committee considered the Intelligence Committee bill on sequential referral and has reported a proposed amendment to our bill. In accordance with Senate rules, the Senate has before it only one bill; that is, the Intelligence Committee bill, S. 2248. The legislative recommendations proposed by the Judiciary Committee will be the first pending amendment. Some of the suggestions the Judiciary Committee made improve the quality of our product. I commend Majority Leader Reid for his decision to bring the FISA bill before the Senate under the regular order. While some advocated bringing before the Senate a hybrid bill which combined parts of both committees' work into one bill, the majority leader recognized that following regular order would not only allow for orderly consideration of important amendments but ultimately produce an even stronger bipartisan bill. The products of the Intelligence and Judiciary Committees have a lot in common. Both fix a number of deficiencies in the flawed Protect America Act, hastily passed in August, as we all remember. Both strengthen our national security while protecting American civil liberties and privacy rights through enhanced and mandatory court review and approval of surveillance activities. Both would greatly improve oversight and accountability and ensure that the unchecked wiretapping policies of the Bush administration are a thing of the past. Finally, each committee's work includes a sunset provision. Each strengthens the exclusivity of FISA--all concepts to be explained. Each establishes court approval of surveillance of Americans overseas-- perhaps the most important of all the amendments. But there are differences in how each committee went about effecting these important protections. Over the past month, we have worked very closely--our staffs-- together to determine how best to reconcile the work of the two committees. It has been a bipartisan, straightforward process. I believe we have been able to work out a number of important amendments that take elements of the Judiciary Committee's work and add them to the underlying Intelligence Committee bill. There are some elements of the Judiciary Committee substitute amendment, however, that I do not support, but in all instances, I deeply appreciate the work of Senator Leahy and our colleagues on the Judiciary Committee. I commend in particular the extraordinary contribution during this process of four Senators serving on both committees: Senator Feinstein, Senator Hatch, Senator Feingold, and Senator Whitehouse. They have worked tirelessly in their dual committee assignments to make this legislation as sound and balanced as possible. Before I go into any details of the legislation and the expected debate over the next few days, I want to briefly remind my colleagues of the history of the debate and why FISA modernizing is so important. The need to modernize FISA is explained by looking at the convergence of three elements in recent years. One is the rapid change of the world's communications systems, with new challenges and opportunities for signals intelligence arising from the fact that much of the foreign intelligence information now passes through or is stored in American electronic space. The second change is the significant increase in the number of intelligence targets outside of the United States, particularly as a result of international terrorism but also from weapons of mass destruction proliferation and other foreign threats. The final key judgment is that the 30-year-old FISA law has required a large number of individual applications to the FISA Court for the surveillance of foreign persons outside the United States, which was never intended--which was never intended--under the original legislation and does not involve the privacy of Americans. So the question before our committee was not whether to modernize FISA but how to modernize FISA. We began this effort in March of this year, when the vice chairman, Senator Bond, and I notified the Attorney General of our intention to address FISA modernization. We also advised the Attorney General we would focus on whether legislation should be enacted to address the legal consequences of the President's warrantless surveillance program; namely, the many lawsuits resulting from the President's decision to act outside of the statutory requirements of FISA. In response, the Director of National Intelligence submitted a legislative proposal in April, which the Intelligence Committee began to consider at a public hearing in May. These efforts to address FISA, however, were stalled for several months because of disagreements with the administration over access to key documents relating to the President's warrantless surveillance program. Yet, given the pressing need to fix FISA and allow for timely collection, we made a concerted effort over the summer to produce a bill that both the Congress and the administration could support. Unfortunately, it did not work. The result of that effort ended in the hastily passed and significantly flawed Protect America Act, which allowed for timely collection, yes, but did not include significant FISA Court safeguards. In order to fix the Protect America Act and protect the privacy of Americans while strengthening the timely collection of intelligence, our Intelligence Committee spent several months this fall working on a new bill--the bill before us today--which accomplishes four principal reforms. First, the special procedures provided by this bill apply only to persons outside the United States. If somebody is in the United States--an American is in the United States--all the traditional provisions and protections of FISA continue to apply. Everyone agrees this should be the case. The distinction of whether the target of surveillance is foreign or domestic makes it imperative that there is an adequate basis for determining whether somebody is reasonably believed to be outside the United States. An important safeguard for Americans in the bill is the requirement for court-approved targeting procedures that are reasonably designed to accurately make the determination whether somebody is outside of the United States. The Protect America Act had included that requirement, and our bill does the same. But the Protect America Act had limited the authority of the FISA Court to review the reasonableness of those procedures by imposing a ``clearly erroneous standard'' on that review. Our bill strikes that limitation. Second, our bill recognizes that minimization procedures have been an essential part of FISA from the beginning and will continue to play an essential role. These will be explained. These are procedures to ensure, among other things, that if Americans are overheard in conversations of a foreign target or there is discussion about Americans, that the identity of those Americans only be revealed within the U.S. Government if there is a good foreign intelligence purpose for so doing. The Protect America Act had provided that the Attorney General approve minimization procedures, but it did not provide for court review of them. Our bill corrects that deficiency. The FISA Court will now have the responsibility to ensure that the procedures comply with the law. Thirdly, our bill provides protections for U.S. citizens who are outside the United States. Under the Protect America Act, if a U.S. citizen sets foot outside the United States, he or she would be treated the same as any foreigner outside the United States. The Intelligence Committee rejects the proposition that Americans lose rights--any kind of rights--because they travel or work elsewhere in the world. An essential part of the rights of an American is the determination by a judge whether there is probable cause to believe an American outside the United States is a lawful subject of surveillance by our own Government. This is a concept which both committees--Democrats and Republicans alike--agreed to. Director of National Intelligence Mitch McConnell endorsed this change in law as well in testimony before the Intelligence Committee. There are, however, some differences in how to accomplish this. After considerable negotiation, I believe we have reached an agreement on a bipartisan amendment which would reconcile the approaches of the two committees and resolve the concerns of the administration over unintended consequences of the language reported out by both committees. It is my hope, given the centrality of this reform to the work of both committees, that this bipartisan amendment is the first one before the Senate once cloture is invoked, if it is invoked and we are, therefore, then on the bill. The fourth principal accomplishment of the Intelligence Committee bill is that it considerably enhances oversight of these protections by each branch of Government. This is achieved through a series of annual reports to Congress on the authorized collection, including instances of noncompliance; inspector general reviews by the Justice Department and the intelligence community; and FISA Court review and approval of acquisition and minimization procedures. As we begin debate on these and other important issues, one of the concepts the Senate will hear a lot about is exclusivity. Exclusivity addresses the question of whether FISA and the laws that explicitly govern the domestic interception of communications for law enforcement purposes are the exclusive means by which the President may authorize the surveillance of Americans. The President claims that he has the authority as Commander in Chief to approve surveillance even when he has no statutory authority to do so. No act of Congress by itself can finally resolve that debate between Presidential and congressional authority, but what Congress can make clear is which statutes authorize electronic surveillance. The significance of this, in connection with our recent national experience, is that the Department of Justice has claimed that the authorization to use military force, passed in response to 9/11, somehow authorized the President to disregard FISA. Not only is this proposition dubious at best, in my opinion, it is also dangerous. In fact, the next time Congress is asked to act quickly in response to an attack, should there be one, it may pause and take time to consider whether its authorization to use force will have completely unintended consequences, such as authorizing the President unlimited power to violate acts of Congress. To make sure authorizations for the use of military force do not again become an excuse to wipe away acts of Congress, both the Intelligence and Judiciary Committees sought to make even clearer than before which statutes constitute the exclusive means for conducting electronic surveillance. I believe we have been able to work out language on an amendment that will reconcile the differences in these two bills. The Intelligence Committee also establishes a 6-year sunset for the new authority it provides. A sunset is essential because we owe it to the American people to make sure we have gotten both parts of this system right--effective intelligence collection and the protection of the privacy of Americans--before settling on what should be permanent law. The Judiciary Committee amendment proposes a 4-year sunset. The House FISA bill provides for a 2-year sunset. The administration opposes any sunset. I will join with Chairman Leahy in support of an amendment to incorporate the Judiciary Committee 4-year sunset into the underlying bill. Four years will ensure that a decision on permanency is made during the next Presidential term, not the one succeeding it. Finally, title II of the committee's bipartisan bill addresses the question of protection for telecommunications companies that assisted the Government during the course of the President's warrantless surveillance program. The Intelligence Committee carefully reviewed this matter of retroactive liability protection for companies prior to reporting out its bill. We received and reviewed the letters sent by the administration to the companies. These letters stated that the assistance of the companies was ``required,'' that the request was based on order of the President, and that the Attorney General had certified the form and legality of the order. In the course of our investigation, the committee heard from the companies themselves as well as administration officials and many others and determined that the companies were not provided with any of the Justice Department legal opinions underlying the Attorney General's certifications they received ordering them to do something which has come to put them at risk. In the end, a bipartisan consensus of the Intelligence Committee supported a narrowly drawn retroactive immunity provision. I want to stress the phrase ``narrowly drawn'' because what the committee approved was not--I repeat: was not--the broad and open-ended immunity sought by the administration. The committee immunity provision applies only to companies that may have participated in the warrantless surveillance program from a specific period of time--from 9/11--until it was placed under FISA Court authorization in January 2007. Nothing in the bill provides immunity for Government officials for their actions--that is in the current law; it is not in the law that we have proposed--nor to companies outside the specified timeframe. The 12 members of our committee who supported the provision did so for different reasons. Some Senators believed that the President acted within his constitutional responsibility and authority in establishing the surveillance program. Some other Senators, including me, believe the President trampled on our Constitution and our laws in unilaterally creating a warrantless surveillance program in 2001 and continuing it for years without seeking statutory authority to support it. But no matter what may be the views about the President's adherence to the law, our collective judgment on the Intelligence Committee is that the burden of the debate about the President's authority should not fall on telecommunications companies because they responded to the representations by Government officials at the highest levels that the program had been authorized by the President and determined to be lawful and received requests, compulsions to carry it out. Companies participated at great risk of exposure and financial ruin for one reason, and one reason only: in order to help identify terrorists and prevent follow-on terrorist attacks. They should not be penalized for their willingness to heed the call during a time of national emergency. I conclude by urging my colleagues to support cloture on the motion to proceed so that we can turn our attention to reconciling the fine work of the Intelligence and Judiciary committees and ultimately pass a FISA reform bill before adjournment. Every one of us in the Senate and in Congress has a responsibility to correct the flaws in the Protect America Act and put our Nation on firmer footing in authorizing critical intelligence surveillance activities that are effective, while safeguarding the constitutional rights of Americans. I thank the Acting President pro tempore, and I yield the floor.

Mr. ROCKEFELLER. Mr. President, I am not a part of the order as read by the Chair.

Mr. ROCKEFELLER

Mr. ROCKEFELLER. Mr. President, I rise today to wish a very happy birthday today to my colleague, Senator Robert C. Byrd, and to say a couple of things about him. As the majority leader indicated, we had a wonderful reception for him last night, and what was interesting to me was not only the warmth of what it was that those who spoke said of him, but even more important was the fact that in the crowd of 2 or 300, I would say 80 percent of them had come up from West Virginia or were West Virginians who had come from other parts of the country. It was actually the strongest statement of the evening because it reflects their love and their respect. These were people who would not ordinarily do something such as this because they have other matters they might need to attend to because they are public officials or because of their positions--they are scholars or whatever. But they made their way up here so they could pay their tribute by their presence, even though they could not say a word to Senator Byrd. That meant a lot to me, to understand--as I do anyway--the way people feel. I also wish to say one of the things I have always most admired about Senator Byrd is he grew up the hard way. We have talked about that from time to time, all of us who comment on Senator Byrd, from one birthday to another, and how he persevered and how he never grew discouraged. He had very little means with which to live, but he had something called iron will and a sense of purpose. It is not entirely clear to me that his sense of purpose was to be directed to the Senate in his early years, when he was working for the military, as a ship builder, as a meat cutter, and doing other things he needed to do, particularly when he was in West Virginia, for the purpose of surviving. But what actually interests me almost the least about next Tuesday is that it is his 90th birthday. That is not what I think of when I think of Robert C. Byrd. I don't think about his age. I think about his absolutely dominant sense of discipline, self-control, purpose, and a willingness to do whatever needs to be done to accomplish a goal for West Virginia. Senator Byrd and this speaker, this Senator, understand very well how hard it is for West Virginia to succeed, to make strides forward, partly because of the nature of its topography--only 4 percent of the land is flat. There is a very interesting effect of that 4 percent. I think Senator Byrd would agree with me. It causes us not only to have to fit most of the industry in that 4 percent, but a lot of the people are fit into that 4 percent. Therefore, by definition, the word ``community,'' and from that the word ``family,'' has a powerful meaning in West Virginia. I wasn't born in West Virginia. I came to West Virginia as a VISTA volunteer and worked in a very challenged community for 2 years as a VISTA volunteer. It was that sense of family, of people looking out for each other, that turned my life upside down and made me want to stay there and fight for West Virginia. The phrase ``fighting for West Virginia'' is what sums up Robert C. Byrd, whether it is his 50th birthday or his 90th birthday. It has never changed with him. The fight for West Virginia, in our part of the world, is a sacred cause; No. 1, because it is hard; No. 2, because there are so many people who don't understand West Virginia, don't understand West Virginians. But then an interesting thing happens. They come to West Virginia on a visit. When they go to the Greenbrier, that doesn't quite count as going to West Virginia. But if they come to the rest of West Virginia, they are usually overwhelmed. This can be reporters, this can be observers, this can be people who are doing business or visiting in West Virginia--they are overwhelmed by the sense of warmth, honesty, integrity, purpose. For the most part, it is a hard life, a fairly low average family income, people living at the margins--some people doing spectacularly well. Many of them leave the State. Many of them stay in the State. But West Virginia takes work. It takes hard work. That is what Senator Robert C. Byrd is all about and that is what I think of when I think of him on this day, on next Tuesday, or any time in the future: the capacity and the love of hard work. It is a requirement for a Senator from West Virginia, but it has been the particular domain of the senior Senator from West Virginia. Yes, it is true that he has held powerful positions and does hold powerful positions in the Senate. What can one make of that? The fact that he has been here and he has earned those positions. But he has done everything in his power to help our people and to help our communities. That is essentially what I am here for, but I am staggered by what he has done. It is not just the building of roads--that is what is usually associated with Senator Byrd--but it is all kinds of work. When you pick up a local newspaper, often somebody--some institution, some college, some volunteer fire department, some research institute at one of our universities or colleges--has been helped by Senator Byrd. It is work, it is simply hard work. It is like the memorization which has been referred to so often. It is the power of memory. If you memorize poems, if you memorize books, if you memorize English monarchs, that takes work. It takes a particular type of diligence, fanatical commitment to achieving a purpose. So he can do it on that cerebral side, the intellectual side, and he does it all the time in serving West Virginia. I can remember in happier days for all of us, when Irma, his beloved wife, was living. I would call him--I would try not to call Senator Byrd too often at home--and she would say: Oh, he is out on the porch having a cigar. I would feel good. I would feel good because it would be one of the very few times that I had ever heard of Senator Byrd not working but actually sitting on the porch smoking a cigar. Now, he may have been reading the Constitution, he may have been reading the Encyclopedia Britannica, I have no idea. But he was smoking a cigar. Or sometimes he would take a walk with his beloved dog Billy. And those things he treasured. So he did have his moments of solace and his moments of quietude. I think a particularly hard blow for him, and therefore for my wife Sharon and myself, was the death of his wife. She was the, as they say, moving wind under his wings. He adored her. We have had many conversations about her. Yet when she passed on, it did not change his nature. It saddened him. He does not show his emotions. But it did not change his nature as a worker. So he will be 90, that should be noted as a fact, on Tuesday. But on Tuesday he will also be an incredible fighter for the people of West Virginia and, yes, of the Constitution and, yes, the place of the Senate in our pattern of Government. But, fundamentally, his heart, his work, his attention, over and above what he has given to his family, has been helping the people of West Virginia. That is what we are elected to do. We all do it in one way or another. Some just do it in a superior way because they have the superior ability and a superior focus and a superior concentration and an overwhelming love for their State, which nurtured them, brought them up, and gave them the values Senator Byrd has. Senator Byrd, I am tempted at this point to say: Here is to you. But you do not drink. That is another one of your good characteristics. So I am not going to say that. I am just going to say I am extremely proud to be your colleague. I am very moved by every aspect of your career which, I think, in the broad sweep of America, matches anybody. Lots of people can make money. They have an idea, they turn it into a product, the product sells, they make a lot of money, and then they go buy houses and do things. Very few people have the constancy of purpose and love of State, driven greatly now by the memory of Irma, which is always with you every minute of every day. So I honor you, Senator Byrd. I wish you a happy birthday, and many happy birthdays to come.

Mr. ROCKEFELLER

Mr. ROCKEFELLER. Mr. President, yesterday the President of the United States stood on the steps of the White House and had the audacity to lecture Congress about how to do our work. It is precisely a lack of Presidential leadership, potentially a lack of policy interest, and certainly a lack of understanding of responsible Government that is getting in the way of solving our Nation's problems--the President. This Congress inherited a growing deficit from Mr. Bush--his created deficit, not his father's; his--and Congress has committed to live by a pay-as-you-go way of spending which makes life very tough. It is the absolute height of hypocrisy to have a President who effectively frittered away, gave away, to his rich friends a $5.6 trillion surplus and to have him lecturing the Congress about skyrocketing spending. Did all of that go to his rich friends? No; most of it did. Some of it went to his brilliantly conceived war in Iraq which has made America a much less safe place to live, while the Taliban and others grow stronger in Afghanistan. America needed, when he took office and especially after 9/11, to make some substantial investments in our defense and intelligence infrastructure, as well as very new and very good homeland security initiatives to respond to the September 11 attacks and ongoing threats. That spending was required for our national security. Generally speaking around here, we take national security pretty seriously. We do on the Intelligence Committee. But that is not where the bulk of taxpayers' dollars has gone under this administration. Instead, we have given trillions of dollars away in tax cuts to millionaires and billionaires, and we are in year 5 of an astronomically expensive Iraq war with a failed strategy that is, as I said, making America less safe. I am going to say to the President, this is not a political speech. I do not often come to the floor of the Senate to speak. I prefer to do my work in committees and in conferences. But I am fed up and outraged at what has transpired from the White House. Meanwhile, on the home front, our domestic priorities, such as children, we have met a concrete wall of resistance. The veto of the Children's Health Insurance Program rests with him and it rests with him, President Bush, alone. The Democratic leader was talking about some of the falsehoods the President has used in arguing against--publicly, constantly, all the time--the Children's Health Insurance Program, none of which are true. All of those who not only created the program, as I did along with John Chafee and Orrin Hatch, but those of us who are working on it now, in an extraordinarily bipartisan way amongst ourselves and with the House, are trying to make it work. But over all that, there is this looming understanding that no matter what we do, the President is going to veto the bill. I will get into that later. So now the President is threatening to veto and then veto again and then veto again appropriations bills aimed at investing in other pressing domestic needs. While, at the same time he is pushing to make the tax cuts for billionaires and millionaires, that I referred to before, permanent while advocating little to nothing for hard-working, middle-class families. Congress is keeping its promise to the working-class families in West Virginia and around the Nation. We try to put the best interests of our soldiers, our children, our veterans, and our families first, and we have done so. We are the ones who have done that. If the President thinks that vetoing bill after bill and threatening to do so, setting the tone to do so, somehow achieves his goals, it is going to make him even less relevant to the American people than he is now. Let me comment a little bit more on his statement regarding CHIP, the Children's Health Insurance Program. It is certainly the best program since Medicaid in terms of health care and one which is working, according to all analysis, efficiently and effectively and humanely. As we all know, after months of intense negotiations between Republicans and Democrats, Congress presented a bill to the White House that would continue the health care coverage of the 6.6 million children currently covered and add on approximately 4 million more. It would give 10 million-plus children insurance, little children who have no health insurance, and we want to tend to that problem. It has been an entirely bipartisan process. Chuck Grassley, the honorable senior Senator from Iowa, Max Baucus, the honorable senior Senator from Montana, Jay Rockefeller, the honorable junior Senator from West Virginia, and Orrin Hatch, the honorable senior Senator from Utah have worked for months, more importantly have our staffs, on a bipartisan basis, have worked for months, 7 days a week, through the night, to try to make this bill work. The President wanted to put $5 billion into it, which would have cut a lot of children out of health insurance. Obviously, the Democrats wanted to put in $50 billion into it. The Republicans wanted to put $22 billion into it. What we did, the four of us Senators who are doing this, met every single afternoon for weeks and for months from 5 to 7 to figure out a way, arguing, walking out sometimes, negotiating, and finally coming to the figure of $35 billion, and we were all happy. We all shook hands with pride because we knew we were doing something good for America's children. There were no politics there. It was pure negotiations in the interest of the people who don't start wars, who don't get our Nation into trouble, and who don't have any health insurance. Congress met its responsibility. We did the right thing by our children. The President perhaps didn't understand the policy involved. I don't know. As the leader indicated, he didn't want to talk about it. But he certainly deliberately told a lot of falsehoods about the program, and the leader also discussed that situation, never mentioning that 91 percent of all children retrospectively and prospectively--the 6.6 million plus the 4 million--are at 200 percent of poverty or below--91 percent, 9 out of 10. I see them with my eyes in West Virginia. I see them as a VISTA volunteer. I see them now as a relatively senior, though still junior, Senator because they are people. When their teeth are not fixed, their lives are changed. When their baby teeth are not fixed, don't worry about the adult teeth to follow; they are already compromised. And immunizations, EPSDT, all kinds of other health care needs. We did the right thing by our children. The President--and it was the President who decided to veto this bill--it was the President who abdicated his moral responsibility to our children in favor of tobacco and partisan politics, or ideology. It doesn't matter, does it, if he is going to veto the bill. I just came from a meeting a half hour ago where Republicans and Democrats from the House and Senate were trying to work out a compromise, but there was this looming sense that whatever we do was going to get vetoed, so it didn't make any difference. Ten million children--this isn't some controversial dam or earmark. This is uninsured children. Some of them had been previously uninsured and now are, and 4 million more who are uninsured. They are children. If you don't get a healthy start in life, everything is compromised-- your health, your self-esteem, your prospects, your future, your life. It starts with health care. It is the President who continues to tell these falsehoods about our bill to take attention away from the real issue. This is not about the cost of the bill, this is not about uninsured adults, this is not about illegal immigrants. This is about not wanting to give poor and low- income children and children whose parents cannot afford private insurance access to something monumental called health care. The President said so himself in a statement which I can barely get out of my mouth. He said to a Cleveland audience on July 10 of this year: I mean, people have access to health care in America, after all. You just go to the emergency room. Mr. President, you cannot understand health care, you cannot understand any of its intricacies, you cannot understand any of its broad oversweeps and ever, not even once in your life, make a statement such as that. The last time as a Senator I was in a waiting room in an emergency room with a child was about 1 or 2 years ago, and we waited 9 hours. So that statement, which is hard for me to say, alone, speaks volumes about his less than compassionate intentions. Yesterday, the President accused Democrats in Congress of going it alone without seeking input from Republicans. There is absolutely nothing that could be further from the truth. We sought input from him, and we were turned down. We have done nothing but work with Republicans. We were working with Republicans 45 minutes ago in an hour, hour and a half long meeting--I don't know how long. I think we are meeting again this afternoon--from the House. We are trying to resolve this, all at the same time understanding that at the end of the day it is probably all going to get vetoed. But we don't care because we do care about children. It is about children. It is about children and their right to have health care, and we are in a position to do it. I went to a high building in New York at the invitation of somebody, and I walked in and I was greeted very coldly. I sat down. I was stared at very coldly. I became moderately unhappy. So I decided to start out the conversation, which he had asked for. I said: How much are you going to make this year? He said: $183 million. But he said: If you people on the Finance Committee would do something about deferred compensation, I could make more. Now, this put me in a real kind of quandary. I didn't want to be impolite--I did want to be impolite, but I didn't want to show it--and so I said to him: How is it that I describe something called the United States of America? How is it that I deal with income disparity? How is it that I come from your $183 million, plus whatever it is if we did on the Finance Committee would give you more, to the fact that the average working family who pays taxes and works and has children in West Virginia has an income of $26,600 a year? How do I get from $26,000 a year to $183 million-plus a year and still call this the United States of America, which is trying to resolve income disparity and treat people fairly? I couldn't do it. The conversation was not pleasant, and I got up and walked out. I am happy to say the gentleman was fired a week later. So we have tried to get the attention of the White House. We have tried to engage the White House. We have tried to do it not for the sake of just simply crafting a bill, but because we have a passionate belief that goes back to 1996--a passionate belief that we are speaking on behalf of millions of American families who cannot afford something so basic as health care and that we can fix it for them for $35 million, and that is over a period of years, but we were rebuffed. We were vetoed, and we have actually been vetoed verbally five or six times since. CHIP is a bipartisan program. The bill passed by the Congress is a bipartisan bill. It does have strong Republican support. There were a lot of Republicans in the House who voted for their version of the bill despite very obvious arm-twisting by the White House. If there is any hope left of enacting a children's health insurance bill this year, it is because there is still a bipartisan group of Senators and Congressmen who are working to keep it together. But if the President continues to mischaracterize our bill and engage in disinformation, then I would say to my colleagues: Enough is enough. Enough is enough. Either you are for giving kids a healthy start in life or you are not. It is that simple. Money is not the problem. Paying is the problem. Injustice is the problem. Poverty is the problem. Money is not. Well, the President has made his choice. For him, children evidently don't really need health care. They can just go to the emergency room. It is really a poignantly horrible statement for him to have made. I don't know if he has ever been to an emergency room. I have. He is entitled to his conscience, of course, and he is entitled to his opinion. He is entitled to protecting tobacco over protecting children. That is his right. He is the President. He has the veto pen, and he can sign or veto. He chooses to veto. But let us be very clear: He will have this as his legacy. As a nation, we have always done what is right by our most vulnerable populations, not sometimes as efficiently or as swiftly as we could, but as we could. Our seniors and our children have always been at the top of that. Now our veterans are sacred. Veterans, when they go to serve our country, are soldiers for their entire lives, and we protect them. If this President won't live up to that ideal, then it is time to get one who will. I thank the Presiding Officer, and I yield the floor.

Mr. ROCKEFELLER

Mr. ROCKEFELLER. Mr. President, I rise today to introduce the Pre- existing Condition Exclusion Patient Protection Act of 2007. This is a critical bill for the tens of millions of individuals who suffer from chronic, disabling, and life-threatening conditions, as it will ensure that they have access to affordable, comprehensive, and meaningful health insurance coverage despite ``pre-existing conditions.'' The Centers for Disease Control & Prevention estimates that fully one-third of all Americans will have a chronic, disabling, and life- threatening condition at some time during their lifetimes. In West Virginia, that translates to approximately 600,000 of our neighbors who will face these serious health problems. Far too often these are the very people who find their health insurance coverage interrupted, cancelled, or denied because of pre-existing condition limitations in their health insurance policies. That is why, over 10 years ago, Congress passed the Health Insurance Portability and Accountability Act of 1996, HIPAA, P.L. 104-191, with the objective of protecting Americans from interruptions in health insurance coverage resulting from job changes or other life transitions. HIPAA provides this protection by restricting when private insurers can use pre-existing conditions to limit health care coverage. HIPAA has been successful, and many individuals have come to rely on its protections. However, after more than a decade, certain gaps in HIPAA's protection have become apparent that hamper individuals' access to care for which they could be covered, but for their pre-existing conditions. First, individuals who have been without health insurance coverage for 63 days or more, risk becoming permanently uninsurable. This is particularly true of individuals with pre-existing conditions, because a 63-day gap in coverage eliminates any prior creditable coverage. If an employee cannot demonstrate that he or she had prior creditable and continuous coverage, an employer can exclude coverage for pre-existing conditions for up to 12 months. Second, employers can restrict coverage for pre-existing conditions to otherwise qualified employees based on a 6-month ``look-back'' period. This means that an employer may use medical recommendations, diagnoses, and treatments within the most recent 6 months to exclude coverage as a ``pre-existing condition.'' This ``look-back'' period is sufficiently long that it likely impacts all Americans with at least one chronic illness, a category that includes a staggering one out of every three Americans, according to the Centers for Disease Control. Third, the protections offered to individuals moving into a group health plan, or moving into the individual insurance market from a group plan, are not available to individuals attempting to shop around for policies within the individual market. As a result, individuals who purchase policies in the non-group market and never have a gap in coverage still have no protection against the pre-existing condition exclusions that insurers may choose to impose. The Pre-existing Condition Exclusion Patient Protection Act of 2007 takes significant steps to improve these weaknesses in the law, thereby protecting patients who are currently at risk of being denied health insurance coverage. To close the first gap in the law, the bill reduces the timeframe during which an employer can exclude coverage for pre- existing conditions from 12 months to three months. This would ensure that more Americans have access to health insurance coverage; furthermore, it is consistent with the requirements for ``state- qualified plans'' under the Trade Adjustment Assistance Reform Act of 2002. To close the second HIPAA gap, this legislation shrinks the permitted ``look-back'' period from 6 months to 30 days, which would result in a decrease in the number of Americans who are unfairly denied health coverage due to pre-existing conditions. Finally, the bill closes the third gap by applying the same pre-existing condition protections afforded to individuals in the group health insurance market under HIPAA to individuals moving to, and within, the individual health insurance market. Passing this legislation would increase access to private health insurance for the almost 94 million Americans who suffer from at least one chronic illness. It also would ensure that the 158 million individuals who are insured through employer-based private plans and the more than 14 million individuals who are covered by non-group, private plans would have far better protection when changing jobs or their health care plans. I am confident that with these actions, we can achieve a significant improvement in the access of Americans to health insurance coverage. For this reason, I urge my colleagues to advance progress toward this important goal by supporting the Pre-existing Condition Exclusion Patient Protection Act of 2007. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. ROCKEFELLER

Mr. ROCKEFELLER. Mr. President, I rise today to introduce the Pre- existing Condition Exclusion Patient Protection Act of 2007. This is a critical bill for the tens of millions of individuals who suffer from chronic, disabling, and life-threatening conditions, as it will ensure that they have access to affordable, comprehensive, and meaningful health insurance coverage despite ``pre-existing conditions.'' The Centers for Disease Control & Prevention estimates that fully one-third of all Americans will have a chronic, disabling, and life- threatening condition at some time during their lifetimes. In West Virginia, that translates to approximately 600,000 of our neighbors who will face these serious health problems. Far too often these are the very people who find their health insurance coverage interrupted, cancelled, or denied because of pre-existing condition limitations in their health insurance policies. That is why, over 10 years ago, Congress passed the Health Insurance Portability and Accountability Act of 1996, HIPAA, P.L. 104-191, with the objective of protecting Americans from interruptions in health insurance coverage resulting from job changes or other life transitions. HIPAA provides this protection by restricting when private insurers can use pre-existing conditions to limit health care coverage. HIPAA has been successful, and many individuals have come to rely on its protections. However, after more than a decade, certain gaps in HIPAA's protection have become apparent that hamper individuals' access to care for which they could be covered, but for their pre-existing conditions. First, individuals who have been without health insurance coverage for 63 days or more, risk becoming permanently uninsurable. This is particularly true of individuals with pre-existing conditions, because a 63-day gap in coverage eliminates any prior creditable coverage. If an employee cannot demonstrate that he or she had prior creditable and continuous coverage, an employer can exclude coverage for pre-existing conditions for up to 12 months. Second, employers can restrict coverage for pre-existing conditions to otherwise qualified employees based on a 6-month ``look-back'' period. This means that an employer may use medical recommendations, diagnoses, and treatments within the most recent 6 months to exclude coverage as a ``pre-existing condition.'' This ``look-back'' period is sufficiently long that it likely impacts all Americans with at least one chronic illness, a category that includes a staggering one out of every three Americans, according to the Centers for Disease Control. Third, the protections offered to individuals moving into a group health plan, or moving into the individual insurance market from a group plan, are not available to individuals attempting to shop around for policies within the individual market. As a result, individuals who purchase policies in the non-group market and never have a gap in coverage still have no protection against the pre-existing condition exclusions that insurers may choose to impose. The Pre-existing Condition Exclusion Patient Protection Act of 2007 takes significant steps to improve these weaknesses in the law, thereby protecting patients who are currently at risk of being denied health insurance coverage. To close the first gap in the law, the bill reduces the timeframe during which an employer can exclude coverage for pre- existing conditions from 12 months to three months. This would ensure that more Americans have access to health insurance coverage; furthermore, it is consistent with the requirements for ``state- qualified plans'' under the Trade Adjustment Assistance Reform Act of 2002. To close the second HIPAA gap, this legislation shrinks the permitted ``look-back'' period from 6 months to 30 days, which would result in a decrease in the number of Americans who are unfairly denied health coverage due to pre-existing conditions. Finally, the bill closes the third gap by applying the same pre-existing condition protections afforded to individuals in the group health insurance market under HIPAA to individuals moving to, and within, the individual health insurance market. Passing this legislation would increase access to private health insurance for the almost 94 million Americans who suffer from at least one chronic illness. It also would ensure that the 158 million individuals who are insured through employer-based private plans and the more than 14 million individuals who are covered by non-group, private plans would have far better protection when changing jobs or their health care plans. I am confident that with these actions, we can achieve a significant improvement in the access of Americans to health insurance coverage. For this reason, I urge my colleagues to advance progress toward this important goal by supporting the Pre-existing Condition Exclusion Patient Protection Act of 2007. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. ROCKEFELLER

Mr. ROCKEFELLER. Mr. President, in the lush green hills of Arlington Cemetery, where peace holds its gentle sway, there is a headstone inscribed with the name of John W. Engeman. On it are his rank of chief warrant officer, and his honors, the Legion of Merit, Bronze Star, and Purple Heart. But, like all of the iconic white markers at Arlington, it only tells part of a hero's story. Chief Warrant Officer Engeman enlisted in the Army when he was 18, and was stationed in Korea and Germany, and served in Kosovo and Operation Desert Storm. Two years ago, he moved with his family to West Virginia, where he was the active duty liaison between the National Guard and Reserves. But he was more than a career military man; he was also a devoted father and husband, brother and son. The soldiers in his unit called him a father figure and a great story teller. They recalled that whenever they needed advice, they always went to the Chief. They said they would follow him anywhere because he was a great leader, a good decisionmaker, and a good friend. And, they said, he loved to talk about his wife Donna or his two children, Nicole and Patrick. So I can only imagine how he must have felt when the Army made special arrangements for him to watch his wife graduate from college. It had been a shared goal between the two of them, and on the day before Mother's Day, he sat half-a-world away and watched the dream turn into a reality. He ended that day by telling his wife how proud he was of her, and that he would call the next day to wish her a happy Mother's Day. It was a call that would never come. Chief Warrant Officer Engeman's humvee would be struck by a roadside bomb later that evening. From the earliest days of the Republic we have held a special place in our hearts for those families who have lost a loved one in war. Later this week, as part of the White House Commission of Remembrance, the family of Chief Warrant Officer Engeman will be honored, along with the families of other soldiers, sailors, and marines who have been lost in combat. It is altogether right and fitting that we do this. Chief Warrant Officer Engeman answered the call to duty and served with honor and distinction. He won the respect of his soldiers and the admiration of his country. But those truly timeless qualities--his laugh, his quirky smile he would give you when you needed his advice, and his love for his family--will live in the hearts of his wife, children, sisters, and parents forever. All of West Virginia joins with me today in keeping the Engemans close in our hearts and prayers.