Jeff Sessions

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I rise in support of the proposal Senator Kyl has offered. I do believe it represents a step toward fairness. But I do reiterate that I believe the budget point of order should not have been waived, and that we actually spent, under this proposal that has been cleared so far, another billion dollars this year than we had within our budget. That is a bad thing. It is those kinds of steps that get us into real trouble in spending. We have my colleagues who say they care about spending; oh, they care about spending. But time and time again, when a vote comes up that actually has something to do with our deficit, they are AWOL. I thought it was amusing that not long ago, a Senator referred to a vote he cast 15 years ago as if that is going to prove he is frugal. We have a vote right now. This was the vote. This was a clear vote. It had to do with whether we had any intention to be disciplined in the way we handle money. They say: Well, we need this money. But the truth is we have had the warmest January on record. This has been a very mild winter. For that, we can be most thankful. Is this an emergency? Well, what happens next year if it really is an average or cold year and we don't have this billion dollars? It has already been spent this year. And they say the heating oil prices don't fall, they go up. They say the heating oil prices will go up again next year. Where are we going to come up with that billion dollars? We don't even have a proposal here to offset it. With regard to the funding formula we have seen, if we can fund this billion dollars in the way that has been proposed, my State, which suffers from a lot of hot days--and in small houses and in mobile homes that are not cooled, people do die. That is a tough time. If we are going to have this fund, it is only fair that the poor people in my State have a chance to participate in it, not just a select group. So I just return to the fundamental principle. We are indeed moving a piece of legislation that spends $1 billion more this year than we authorized in spending. The fact that it came from next year's money doesn't answer the question. We are spending a billion dollars more than we were authorized to spend under our budget. What good is a budget if we don't adhere to it? What we have is some tax-and-spend people here. They vote against tax cut extensions, they vote to raise taxes, and they vote to raise spending. That is what it is about. They say they are frugal. They say they are responsible. Those of us who are trying to contain spending and maintain a low tax rate for the American people, they say somehow we don't care about our people. That is not correct. We are at a point in time when our Federal budget is allowing for an increase in spending every year, and we will see again this year a very sizable increase. We will have before the Budget Committee an effort to contain just a little bit the growth of entitlements. Do you know what I am hearing, Mr. President? I am hearing we don't have the votes in the Budget Committee to even have a modest containment of spending on entitlement programs, which is where the growth is--about $870 billion for discretionary spending and $1.2 trillion for entitlements. The discretionary budget this year will come in almost flat this year, with little increase. But entitlement spending is going up at about a rate of 7 percent or so. It is just driving our deficits. We cannot even begin to discuss that, apparently, because people want to raise taxes and spend. They want to tax and spend. It is not the right way to go. That is not what this country was founded on. When you look at the Europeans who have done tax and spend--look at Germany, with 11.5 percent unemployment, and France has 9.5 percent unemployment. That is what the statist Socialist economies produce. How did they get there? Because their congresses could not resist the demand to fund every feel-good program that comes along the pike. That is why. Then when you meet with a businessman from Germany, he says: I know we have to do something, Senator. Maybe we can cut back on this, but people are so dependent on these government programs, so used to them in Germany, that we cannot quite get the votes to stop it. We know if we don't do it, it can wreck our economy, but we cannot get the votes because people become addicted to it, they like it. They feel like anything they once received, if it is not received the next year, the demagogues say it is a big cut and you have been denied something you are entitled to. So I just say that if I seem a bit frustrated, you can know that I am. We have had a lot of good discussion about how to contain the growth of entitlements--and I am not a bit sure that is going to bear fruit this year--just to maintain the current tax level and keep taxes from being increased next year. Now we come along on top of a generous LIHEAP program and add $1 billion more, in violation of the budget agreement. We just voted to waive the Budget Act and do it anyway with 66 votes. I am telling you, this is not the way to get spending under control in this country. It is the way to move our country to a statist economy. That is not our strength. Our unemployment is not 11.5. Our unemployment is not 9.5. Ours is 4.7. In my State of Alabama, it is 3.5. We didn't get there by taxing and spending; we got there by reducing the burden of government on the private sector and allowing the private sector to flourish. Tax revenues are up in every city in the State, I do believe. I traveled 26 counties last week. Every mayor and county commissioner I talked to is seeing increases in sales tax revenues. Many are telling me they have a 14-, 15-, to 18-percent increase in taxes. Why? Because the economy is booming. Companies are hiring people. They are bidding up the wages. They cannot find people, and they have to pay higher wages. People are making more money, and they pay taxes on that. So revenue to the Federal Government is up. Yes, we have a deficit, but revenue is up. People don't pay taxes to Uncle Sam if they don't make money. They are paying more taxes because they are making more money. We have a free market economy that allows growth and vitality. So I think this vote is an important vote for us as a people. It is a sad vote to me to see many people who claim to be frugal, claim to care about spending, but when the chips are down and we have a clearly dangerous bill like this one, a bill that we ought to be able to vote down overwhelmingly, we could not even get 40 votes to say no. We could not find 40 votes to say no to this plan. I don't blame Senators for trying to do this. They say that you in the South want help. Well, scrutinize the help we are asking for. If we are asking for something that is unfair, say so, vote against it. Don't come in here and vote for everything this one wants, everything that one wants, and everything that one wants, and then walk in here and say the deficit is too big and now we have to raise taxes. That is where we are headed. I think everybody here knows that. There are a lot on the other side of the aisle, and apparently some on this side, for whom that is a strategy. That is a strategy. The strategy is to increase spending and then say you cannot have lower taxes and we have to have higher taxes and we have to raise taxes. They don't want to say it publicly and openly, but that is what they are working toward. That is a big divide in the Congress, as I see it. I hate that we have a dispute over this spending, but apparently we have. It is discouraging to see the vote. But I think, as we continue to talk about it, perhaps the American people will talk to their Senators and Congressmen. When I travel around, they talk to me about spending. Of course, they want their projects. They say: Oh, don't cut that. But overall, they want constraint. I believe the American people fundamentally will respect us if we maintain some discipline. That means, on the discretionary account, staying within our budget figure, which is basically flat spending. When we are in a crisis, we try to keep our spending level. We have a deficit. We ought to stay level. We are not slashing anything. We have to stop going for more and more red ink, more and more new spending programs that we have not had before to fund heating oil in the warmest winter on record. We are going to keep talking about it. There will be more votes in this Congress and in this Senate. We did pretty well last year. We did do some reduction--modest reduction in entitlements with the Medicaid Program. We limited the growth of Medicaid, and we were proud of ourselves. Over 5 years, it was going up 41 percent before we passed the cost-saving bill, and now it is going up 40 percent. We thought we were quite proud of ourselves to save a little money that way. If we would do that on the other accounts, like Medicaid and Medicare and some other accounts--just a little bit--we would have big numbers as we go along and make a real difference in what we are doing. But it looks like that may not happen. So we are going to have to, I guess, reengage the American people, reengage the Members of Congress, and they are going to be asked by constituents: How did you vote? How did you vote on LIHEAP? Did you vote to spend another $1 billion? Maybe we can begin to have the American people talk some sense into those of us in Congress. I thank the Chair and yield the floor.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I am sorry we are now facing another filibuster and delay of efforts to reauthorize the PATRIOT Act. We have taken 3 days this week to deal with legislation Senator Sununu introduced to assuage concerns he and others had about the bill. Senator Sununu's proposed bill guaranteed that at least four more Members of the Senate were on board to completely support a cloture vote on and final passage of the Conference Report. It certainly brought on board all the Republicans who expressed concern over the bill. But we are still going through the process of grinding down certain provisions to get an up-or-down vote on reauthorizing the PATRIOT Act. That is all we are asking for, an up-or-down vote, to determine whether we want to extend the provisions of the PATRIOT Act. That is being held up. We have many other things that are important for us to do for our country, but we have been forced to spend an extraordinary amount of time on this. If you look around, you will see that people are not engaging the issue. The complaints--Senator Kyl talked about some of them--are insubstantial. They are not the kind of serious concerns people have portrayed them to be. The act itself provides quite a number of provisions that simply allow investigators to use the same tactics to investigate terrorists, people who want to kill us, that they use to investigate wage-and-hour disputes, to investigate your taxes, to investigate drug dealers and pharmacists and drug dispensers and doctors. It is important that investigators continue to have these tools at their disposal. It is unfortunate we have had this obstruction. We have seen a pattern of it, frankly. The more time we spend on delaying these kinds of provisions, means that at the end of the year there will be a jammed-up calendar. We will have appropriations bills that have to pass, and other bills that need to pass. All the days we had at the beginning of the year have now been frittered away on rearguing things that we have argued and settled before. I don't mind debate. Senator Feingold has come down and spent a number of hours expressing his concerns. I respect him. He is a most articulate opponent of the act. He has certainly studied the act. We don't agree, but I respect that. But we went through all this in December for days on the floor of the Senate, debating these same issues. With Senator Sununu's compromise and suggestions for improvement that have been accepted, the basis for many of those complaints have gone away. Now we are taking another big, long time to reargue settled issues. I believe the majority leader, Senator Frist, is justified in his frustration that something that has been debated completely and fully and that now has a clear majority of Senators prepared to support it is being held up, delaying all the processes of the Senate. Let's talk about the merits of the bill and how the law deals with certain issues for which we have heard objections. One of the biggest items and perhaps the biggest issue that Senator Feingold and opponents have raised has been the delayed search warrants. The bill that came out of the Senate was passed by unanimous consent. We moved the PATRIOT Act reauthorization out of the Judiciary Committee by a unanimous vote. We moved it out of the Senate by a unanimous vote. The House passed a bill by an overwhelming majority. The House and the Senate bills went to conference, and they discussed it. We made concessions on each side. Senator Specter, chairman of the Judiciary Committee, a man who certainly has been respectful to civil liberties, has stated that he believes about 80 percent of the compromise that was reached favored the Senate version, not the House version. The House conceded on more issues than the Senate. They gave more than the Senate did. The bill that came out of conference was very close to the Senate bill. Then we hit the Senate floor, after having a unanimous vote, and now we have a filibuster. It is, indeed, frustrating. Let me talk about the delayed search warrants. What the PATRIOT Act does is to codify, to make a part of the law of the country, provisions for delayed notice search warrants. Delayed notice search warrants are not, as some have said in the Senate, an unusual procedure. Delayed notice search warrants have been in use for decades, long before we passed the PATRIOT Act. This act did not create any new authority or close any gap because there was no gap to close. The PATRIOT Act simply created a nationally uniform process and standard for obtaining a delayed notice search warrant. Some have said: The court said 7 days is what you ought to delay notice. That is the maximum time you should delay notice. That is not quite accurate. The Ninth Circuit, the most liberal circuit in the United States, the most reversed circuit in the United States by the Supreme Court, has held in one case that delayed notice search warrants that explicitly provided for notice within a reasonable period of time by the judge issuing the warrant pass constitutional muster under the fourth amendment. They said a delayed notice search warrant does pass constitutional muster. Then they went on to ask, though, what is a reasonable period of time? They defined it as 7 days, absent a strong showing of necessity. That is what the Ninth Circuit said, the most liberal circuit in America. But other courts, such as the Fourth Circuit, have upheld much longer initial delays as constitutional. For example, the Fourth Circuit has determined that a 45 day period for delayed notice is constitutional. The Fourth Circuit did not even suggest that 45 days was the upper limit. They simply concluded it was reasonable in those circumstances. The truth is, there is no standard set under current law by the courts that would mandate a specific period of time for a delayed notice. When the House of Representatives passed its version of PATRIOT Act reauthorization, it called for 180 day delayed notification period. The vote in the House was 257 to 171, a bipartisan vote of Republicans and Democrats, to approve overwhelmingly a delay of 180 days. The bill we sent to conference had a 7 day delayed notification provision in it. When the conference reported the bill, it tilted much closer to the Senate bill. It came out with 30 days, less than the 45 that the Fourth Circuit had approved, more than the Ninth Circuit had said. And it was a perfectly logical process we went through. About the importance of delayed search warrants in terrorist investigations, I can't express how strongly I believe that this has the potential to be the most significant provision in our legislation, the PATRIOT Act. Time and time again, Federal investigators, working with State and local investigators, determine that groups are involved in terrorist activities. They don't know all the people who are involved. They don't know the full extent, but they have probable cause to establish that they are violating or planning to attack the United States or are participating in a conspiracy to kill people to further their terrorist goals. So what do you do then? Under the PATRIOT Act--not the National Security Act or what we have talked about, the national security intercepts you have heard so much about in the paper; those are international and involve the President's inherent authority--under the traditional law of America, what do you do if you have probable cause to believe these groups are meeting, that there is some sort of sleeper cell in existence, you have proof, not just suspicion, proof to the level of probable cause that they are participating in this scheme? One of the most potentially beneficial things would be to get a search warrant for that house. But if you do it under normal conditions, when you have to conduct a search warrant if the defendant is not there, you provide him notice that you have conducted a search warrant. When you come to the door and before you go in, if no one is there, you have to leave a return on the door showing that you searched the place and any items you seized and who to contact. That is what you normally do in a search warrant. Police officers do that every day. But first they go to a judge and they swear under oath that they have probable cause, and not only say they have it, they spell it out. And judges, on appeal, can review it. If the judge who approved the search warrant was in error, they can reverse it or the evidence can be excluded from trial. So you go to a judge. We are not in any way changing that great principle that a U.S. Federal judge or a State judge would have to approve a search warrant. You are not changing in any way the principle that they have to have probable cause under oath that evidence exists at the scene of the place searched which would be relevant to an investigation. All of that is the same as it has always been. But the one critical thing--and this has been legitimated by courts and approved by the U.S. Supreme Court--is that you can, in certain cases, ask that the notice which you would normally give to the owner of the residence or the person who has custody and control of that location be delayed. Now, this can be absolutely critical in a case of national security. It is so important. Please, I want you to understand that. You may be able to go in that area and find names, phone numbers, records, or bank deposits that would identify a whole group of other people, and you are not ready to arrest them that moment because you don't know where they are located. You need to check this out and follow up on it. If you arrest that bad guy and give notice to the people right there, the whole world will know it, and they will spread the word and they will scatter. That is exactly what will happen. So that is why, in certain instances, law enforcement officers have sought, and courts have approved without the PATRIOT Act, delayed notice search warrants. So then when do you notify the person? All the PATRIOT Act says is that the police officers can delay notification for 30 days. At the end of that 30 days, if they don't come back to the court and show a legal basis to continue to delay to notify the defendant, they have to notify the defendant on the 30th day. That is all this Conference Report says. That is reasonable. It is not an abuse of the power of the Congress. It is not in any way contradictory to the great traditions of law enforcement in America. It has nothing to do with the President's Executive powers to fight a war. This is under the criminal law aspect of American justice. I asked for delayed notices on rare occasions when I was a Federal prosecutor. I am telling you, whether investigating a big drug gang or a Mafia group, these are the kinds of things which can make all the difference in the world. And it is even more important in terrorist investigations because these people will scatter and because it is a matter of life and death. That is all I am saying. There is nothing unusual or strange about it. The Department of Justice wrote a letter which said that a delayed notice warrant differs from an ordinary search warrant only in that the judge authorizes the officer executing the warrant to wait for a limited period before notifying the subject of the search because immediate notice would have an adverse result, as defined by statute, that could undermine the investigation. So this is all this is about. I think few people would dispute it. Yet we have a filibuster because some Senators apparently believe that 30 days destroys the Constitution. They believe that it violates the Constitution to ask the police officer to wait 30 days before they notify the defendant. The House of Representatives, by an overwhelmingly bipartisan vote of 257 to 174, voted to allow the officers to delay 180 days. So now we have been here 3 days debating this issue this week. This is the No. 1 complaint they have about the bill. I don't know what it is that got us to this point. The conference report before us today eliminates the possibility of an open-ended delayed notice. It requires notice within 30 days unless the court grants an extension. Current law allows for simply a reasonable delay, which is whatever the judge may decide in a given case. Well, they say, why do you need 30 days? Well, the Fourth Circuit found that 45 days is good enough. I will give this example which the Department of Justice gave: Operation Candy Box. A delayed notice was permitted in a multijurisdictional investigation targeting a Canadian- based ecstasy and marijuana-trafficking organization. The delay allowed for a successful, uninterrupted, month-long investigation that resulted in the arrest of over 130 people. Without delayed notice, agents would have been forced to reveal the existence of the investigation prematurely. As a Federal prosecutor myself, I want to tell you, one of the biggest decisions in any investigation of any organized criminal group or terrorist group is the decision of when to conduct the takedown. When do you arrest them? Do you run out as soon as you know there is a group and you have evidence on one of them--do you run out and grab that one? How stupid can you be? If you grab one, the rest will know it and know you are going to come after them; they are going to scatter or they will destroy evidence. They will run and hide, and they may create a sleeper cell in a different city and continue their plans to kill Americans or to sell dope or whatever it is they are doing illegally. So you have to plan the takedown. When you are dealing with cases involving life and death, you have to be very careful about it. Don't think the agents don't work with prosecutors and staff people and plan out these takedowns to the most minute detail. When do you do it? Do you catch six low-level flunkies and let the big guys get away? No. Someone might say the big guy is coming into town the next day, so we will have a team there and we will have probable cause to arrest him. Then you get a search warrant. When do you execute the warrant? You want to execute it at a time of your choosing so you can wrap up as many of the members of the organization as possible at one time. That is what it is all about. Sometimes you need to know more about this organization. You don't know all the people who are involved. That is where a delayed notice warrant can allow you to obtain information about other people who are involved and do further investigations and find out, maybe, that two or three dangerous criminals should also be arrested at or about the same time. They will provide you the probable cause to arrest them because you cannot arrest people without probable cause in America. You have to have evidence. You cannot just arrest somebody on suspicion. So where do you get the evidence? Some people in this Senate forget that police officers are not magicians; they have to gather evidence. How do you get it? One way you find out the evidence is to conduct a lawful search on a warrant approved by a Federal judge or a State judge. If it is a Federal crime, it would be a Federal judge. Then you may execute a delayed notice warrant, and you may find more evidence of other people that can be corroborated and you can build up probable cause. And instead of having probable cause to arrest just 2 defendants, you may have probable cause to arrest 8 of them, and maybe you take down the whole sleeper cell. Maybe there are 8 in this town and 4 more in Boston and some more in San Diego or in Washington, DC. You can arrest all three or four cells at the same time. Would that not be the ideal thing? I am telling you that this is what law enforcement officers attempt to do every day. They do it according to the laws that we require. In 2002, the issuance of a delayed notice search warrant helped break a massive multistate methamphetamine ring. The delayed notice allowed investigators to locate illegal drugs, which provided further leads, eventually resulting in the seizure of mass quantities of drugs and the identification of those involved in the criminal organization. More than 100 people were charged with drug-trafficking offenses, and a number of them have been convicted. In another case, a delayed warrant was issued to search an envelope which was sent to the target of an investigation. An envelope had been sent to the person, and they got a warrant to search the envelope. The search confirmed that the target was operating an illegal money exchange and was funneling money to the Middle East, including to an associate of an Islamic jihad operative. Delayed notice allowed the investigators to conduct a search without compromising an ongoing wiretap they had been carrying on based on probable cause, and with the approval of a U.S. District judge. But they didn't just conduct a wiretap; they were conducting this wiretap and they needed to find out if money or drugs were moving so they could seize that or allow the package to continue and then arrest the person who received it. That is what we are talking about here. That is why there is nothing extreme in any way about the delayed notice search warrant law. Well, what about the national security letters? You have heard a lot about that issue. The complaint is that Senators have said this will allow you to obtain information from people not connected to terrorists or spies. The national security letters, which existed long before the PATRIOT Act, can only be in a certain specific and limited number of circumstances. Now, I will talk about those in a moment, but they are listed in 5 statutes, so it is not an open-ended provision. It only deals with national security issues. The procedures set forth in this act which allow those letters to issue are in no way extreme. They in no way threaten the great liberties all of us share but indeed are essential tools in this age of national security threats to our country, and they can be critical, critical, critical facts for investigators to enable them to identify those cells which may be in this country trying to attack and kill American citizens, as we saw on September 11. I want to emphasize that national security letters existed long before the PATRIOT Act and can be used in only very limited circumstances for national security issues. In fact, it is a particularly valuable tool that is utilized frequently by investigators. The New York Times said there have been a lot of national security letters issued since 9/11. Well, we are doing a lot more investigation. Every FBI office in America is pursuing every lead that pops up, unlike what we were doing before 9/11, and are verifying and checking out and determining the kinds of things that are necessary to find out, such as if someone may be connected to a terrorist organization and may be planning an attack on the United States. Isn't that what we demanded after 9/11? But the numbers that have been published are clearly exaggerated. They are not accurate, and they have been criticized by the officials who are involved. I add that parenthetically. The PATRIOT Act originally made very few changes to the national security letter procedure. It merely made relevance the standard for obtaining a national security letter and allowed special agents in charge to issue them. The special agent in charge would be the special agent in charge of the FBI office in New York City, for example, or in Boston or in Birmingham, AL, and those special agents in charge supervise everyone in the office. They are considered to be high- ranking FBI officials responsible for the law enforcement issues relating to their agency in that district. So this was what we originally passed. However, now under this conference report, the national security letters are to be used only for investigations involving terrorism and espionage, and they must pertain to ``an authorized investigation'' involving ``national security.'' These are national security investigations. National security letters cannot be used to obtain unlimited categories of material. They can only be used to obtain very limited categories of material in the possession of third parties, not the defendant. The great protections against the searching of your home have not been undermined. What we are talking about here are records that are under the dominion and control of a third party. You can say they are your bank records, but they are the bank's records. You can say they are your telephone company records, but they are the telephone company's records. The law has always made a big distinction between the kind of proof you have to have for someone to come in and search your desk, to search your automobile, to search your home, than the kinds of procedures they have to go through to get the record at the local motel that might have your name on it. It is not your record, it is the motel's record. You have a diminished expectation of privacy. The courts have consistently held this view ever since the issue has been discussed. It is a fundamental part of daily law enforcement in America. So they can be used only to obtain these kinds of records, not records you have under your control that would require a search warrant approved by a judge on probable cause, as I discussed earlier, as you would in a delayed search warrant case. It is a big deal. I am telling you, in a case such as this, I bet you search warrants would be 30 pages of affidavits to justify what they are searching for. But these are simply subpoenas, basically, for these records. These records, as I said, belong to companies, and the individuals to whom they refer have a reduced privacy interest in them. These national security letters cannot be used to obtain ``content information'' that involve any communications you may have made or the words of those communications with the phone company, but simply what the billing record said and the phone numbers you called. But you can't get, through a national security letter, the words of your phone call or intercept or record your phone call in any way, or your e-mails. The content of your e-mails can't be obtained with a national security letter. The national security letter is simply a request by a national security investigator for records. If the recipient such as the bank, for example, objects, the FBI cannot compel production without going to court. The conference report specifically allows the recipient, however, of a national security letter to move to quash or dismiss or modify the national security letter and to challenge the nondisclosure order that accompanies the national security letter, and to talk to their attorneys about it if they choose, and other people who may be necessary to comply with the national security letter. Some people say the nondisclosure requirement can keep you from speaking with your attorney. This legislation specifically allows you to talk to your attorney or anybody else who is related to it before you decide to utilize a motion to quash. Let me share this with you. Imagine, now, you are an investigator, an FBI agent, and you have serious cause to believe that an individual may be connected to a terrorist organization. You want to find out if they have been calling Kabul, Baghdad or Islamabad. It is critically important, at a preliminary stage in an investigation such as this-- critically important, I emphasize--that the people being investigated not know that they are being investigated, that the investigators are on to them. That is why we placed in the law the limitation that the person or entity subpoenaed should not go and tell the people that the Feds are out there asking for your bank records or your telephone records. How can you conduct an investigation? From these records is the way the police officers and FBI agents get the probable cause to conduct a search warrant. How do you get probable cause to conduct a search warrant? You take lesser steps to obtain information that is available to you, and it builds up until you get enough to have probable cause to go a judge to get a search warrant to search the home and you may even want to delay notice to the people at the home until you can be sure that everybody in this organization is known to you and they can all be arrested before they can get away. So that is what this is all about. It is perfectly logical and part of our law enforcement heritage. In the conference report that is before us, it also provides an express right to judicial review for all types of national security letters, allowing courts to modify or quash the order if compliance would be unreasonable, oppressive or otherwise unlawful. It also changed the certification requirement. It requires a higher level of certification before you can ask for nondisclosure in the issuance of a national security letter. The nondisclosure requirement is not automatic. Local FBI cannot ask it. The local special agent in charge can't ask for it. Now it has to be invoked by one of the top officials of the DOJ in Washington, an official who must certify that disclosure would ``endanger the national security of the United States.'' I want to say that is too high a standard. We are going to fail to execute requests for mere documents in control of banks and telephone companies and motels and records of that kind because a DOJ official in Washington is going to be nervous about whether he has enough proof to certify that this matter would endanger the security of the United States. That is too high a standard. But it is in this bill because the civil libertarians wanted to put it in here. Any county district attorney in America this very day can issue a subpoena to a bank or to a telephone company to get your phone records or the records from your doctor. This is not unusual that investigators can obtain documents in the possession of third parties. Please hear me. I know Senator Kyl made the comment that it is easier for an investigator to obtain your business records relating to whether you have paid withholding tax than it is for an investigator, under this case, to get records of whether you are connected to a terrorist organization. I would add a few other examples. A Federal drug officer, a DEA agent, can walk into any pharmacy in America today and examine the pharmacy records that exist to see if somebody has submitted false documents, is overpurchasing drugs or the pharmacist is failing to keep records. He can examine all the records that are there. He doesn't have to have a warrant or a national security letter. The IRS agents investigating whether you paid your taxes can subpoena your bank records by an administrative subpoena that does not require a grand jury approval or approval of any prosecutor. He can do it as an part of an administrative subpoena because they are not your records. But if he goes into your house and tries to take your personal documents, that is not so because he has to have a search warrant. A provision requiring this high level of certification is important protection for sure, and the standard imposed on the top FBI official I believe is too high. I believe one day we are going to regret it. An express right to challenge the nondisclosure requirement is included in the conference report. An express right to disclose the receipt of a subpoena to a attorney is protected. There is the requirement that the Department of Justice Inspector General must audit certain past and future uses of national security letters and provide a public report on the aggregate number of national security letters issued concerning U.S. persons. But IRS agents out there in every community in America are issuing subpoenas for your records by the thousands every week. They don't have to maintain these records. Senator Feingold and others, I am sure, would be pleased to note that the House passed a 1-year misdemeanor for knowing and willful disclosure of a national security letter with no intent to obstruct the investigation, which the Senate dropped in conference. The House of Representatives' bill said if you violate the requirement that you not disclose, and run out and tell the people whose records have been subpoenaed, you would be subject to a misdemeanor. But, oh, no, they objected to that. So now, apparently, there is no penalty if someone violates the act and tells the terrorists that you are investigating them. That ought to make people happy. We ought to feel a lot better that our liberties are being protected. Under the conference report, recipients of a national security letter can challenge the nondisclosure requirement after 2 years, a time period where the national security interests involved will be dissipated. The Sununu bill on the floor today, that was designed to complement the conference report and to alleviate some concerns a few Senators had, allows nondisclosure to be challenged after 1 year and each and every year thereafter. Some opponents of the report wish to see sunsets placed on National Security Letters. National security letters have never been subject to sunset. They are currently governed by six permanent statutes in the code already. No abuses of national security letters have surfaced, and a New York Times article that suggests these large numbers have been issued contains many inaccuracies and that is not accurate. I want to emphasize that. Nondisclosure is absolutely critical in national security cases. Frankly, in reality, bankers and medical doctors and others who may have records subpoenaed or requested by the national security letter, for the most part, do not desire to tell the person if the FBI agent asks them not to. But they go to their lawyers, and we have gotten so lawyerly today, the lawyer may tell them: Well, I think you have an obligation to tell this bad guy that the FBI came by and picked up his records. If you don't tell him, maybe he can sue you. So this is a protection for the bank, for the phone company, for the doctor who gets these records subpoenaed because then he can rightly tell anybody who complains after the fact: I would have told you, but the Federal Government told me not to. Section 215, the FISA Court business record production orders, is another matter of importance. Section 215 orders for the production of business records allows the FBI to go to the FISA Court and seek these orders. You have to go to court now and seek a judicial order of the FISA Court for ``the production of tangible things, including books, records, papers, documents and other items'' for an investigation to obtain foreign intelligence information. It doesn't allow the FBI to go out and do it on their own. They have to go to court and present evidence that would justify production--basically, a form of subpoena authority. Section 215 orders must be preapproved by a judge and cannot be used to investigate ordinary crimes or even domestic terrorism, only foreign terrorism. Orders for the production of business records under the USA PATRIOT Act, section 215, are not and cannot be used for so-called fishing expeditions. The fishing expedition complaint is wrong--wrong--wrong-- for three reasons. First, section 215 orders are court orders that must be authorized by Federal judges prior to issuance. Judicial review will cull out fishing expedition requests. Second, section 215 orders are available only for authorized national security investigations, not your run-of-the-mill investigation, a category that certainly does not include fishing expeditions. And the conference report clarifies that the orders cannot be used for threat assessments. Third, rigorous guidelines issued by the Attorney General govern when the FBI may use a section 215 order. There has also been uproar over the three-part relevance test. The Senate bill included an unworkable and burdensome three-part relevance test. You recall--relevance plus. I opposed it. It was not good. I steadfastly believe that it was the kind of confusion that blocks legitimate action under this law and would undermine the ability for the investigators to do what we intended to authorize them to do. The test would have compromised the ability of the Government to get section 215 orders. The language of the three-prong test was ambiguous and would inevitably have resulted in major complications in terrorist investigations. As we saw by the attacks on 9/11, seemingly small or technical barriers can make a critical difference to the success of a terrorism investigation. That is exactly what the three-prong test would have done. Senator Kyl, who spoke earlier this afternoon, Senator Roberts, who is chairman of the Intelligence Committee, and I sent a letter to Chairman Specter, expressing our strong concerns with the three-prong test and asking him not to include it in the conference report. He did as we suggested. The conference report retains the three-part test only as a way to prove relevance. The conference report lists the three prongs of the Senate test as ways the materials sought are presumed to be relevant. No. 1, the records pertain to a foreign power or an agent of a foreign power; No. 2, the records are relevant to the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or, No. 3, the records pertain to an individual in contact with or known to a suspected agent of a foreign power. As Senator Patrick Leahy explained in 2001, the ranking Democrat on our committee: The FBI has made a clear case that a relevance standard is appropriate for counterintelligence and counterterrorism investigations as well as for criminal investigations. Let me just say this. Your county attorney in every county in America can issue a subpoena for your bank records, your telephone records, on the basis of relevance to an ongoing investigation. That is how subpoenas are issued. It has always been a relevance standard. I don't see anything unusual about this at all. We provided additional protection for relevance. The conference report also requires the application for a 215 order to include a statement of fact which shows ``reasonable grounds to believe that the records are relevant to an authorized national security investigation.'' The original PATRIOT Act simply required a showing that the records ``were sought'' for an authorized investigation. This is a Senate provision which was included in the conference report which certainly made it more difficult to obtain these national security letters, and I assume it made colleagues who have been objecting happy to see this higher burden of proof placed on the investigators. Frankly, I believe that was unnecessary. Both the conference report and bill we are currently debating-- Senator Sununu's PATRIOT Act Amendments bill--imposed new civil rights safeguards on the use of section 215 orders contained in the PATRIOT Act as it currently exists. So by blocking the PATRIOT Act which presently exists from being reauthorized by the Conference Report, civil rights are being diminished since the report provides enhanced protection. The conference report clarifies and makes clear that a recipient of a 215 order has an explicit right to disclose or seek an order through an attorney and to challenge the order in court. Senator Sununu's bill which we are debating today and which I am certain will pass goes a bit further. I do not know that it is critical, but I am willing to accept things that are not perfect by my standards because I know we need to reauthorize the PATRIOT Act, and this is a condition of reauthorizing it. Senator Sununu's bill lays out the process by which a person receiving a section 215 production order may challenge the legality of that order. They can file a petition with the FISA Court, and that petition is ``immediately'' assigned to a judge who, in 72 hours after the assignment, ``shall conduct an initial review of the petition.'' The conference report also retains a 4-year sunset on section 215. In other words, this provision will expire in 4 years unless reauthorized. I don't know why that is necessary, but people apparently believed it was, and so we put it in there. The conferees added a requirement that the Justice Department institute ``minimization procedures'' limiting the retention and dissemination of information obtained through a section 215 order for certain particularly sensitive material. The FBI request for these orders must be approved by one of three top officials at the FBI: the Director, the Deputy Director, or the Executive Assistant Director. One of those three top officials in the FBI has to sign off on it if it includes library records, medical records that would identify a person, library patron lists, book sales records, firearms sales records, tax return records, or educational records. This is a Senate provision that was accepted by the conference. The IRS agents can walk in any time and get your tax records, for heaven's sake, but we can't get a terrorist's tax records without going through the FISA Court. A DEA agent can go into a pharmacy and examine every record in there to find out how many drugs you may have bought or anybody else may have bought. The IRS can subpoena your bank records by administrative subpoena without even the approval of a Federal prosecutor. This is not any erosion of American liberties, is the only point I am making. Again, this does not allow them to go into your house, into the desk you own at your office, and search your personal belongings. It does not allow any Federal agent to open the trunk of your automobile, to go in your automobile, open your glove compartment, and seize anything you may have that is in your personal custody and control. You still have to have a search warrant approved by a judge on probable cause. This involves materials held by third parties. Documents which can be obtained in this fashion are limited to the types of tangible things which could be obtained under grand jury subpoena or other Federal court orders, and the FBI must craft procedures to minimize retention and dissemination of materials gathered under this provision. OK. We will try to destroy them in so many months to minimize the danger that somebody will have a file on you. I am telling you, if you like those shows on television, the real- life cold-case files, you see where the records held for 10, 15 years turn out to be the key documents in convicting some murderer 15 years down the road. I really do not like this idea that a properly obtained document or record kept as part of a confidential investigative file has to be destroyed prematurely. But that is what we have here so people's liberties won't be undermined. Under the conference report, the Department of Justice must conduct two audits of the FBI's use of 215 orders, enhanced congressional and public reporting is required, and the inspector general is required to conduct an audit of all section 215 requests since the passage of the PATRIOT Act. The ironic thing is if those who support a filibuster succeed in preventing a vote on the bill, these additional civil liberties safeguards won't become law. The language about the libraries included in Senator Sununu's bill is also a concern of mine. Opponents of section 215 have tried to create the impression that the FBI is using section 215 to visit libraries nationwide to check the reading records of ordinary Americans. How often have you heard that? Rebecca Mitchell, director of the Alabama Public Library Service, has a different point of view. She wrote me a letter on August 15 and said: I want to personally thank you for your strong leadership to stand on the PATRIOT Act. Our libraries should not be used as a tool for terrorism. I know you have received negative comments from the American Library Association on your stand, but this is not the opinion of most librarians in our State. Please continue to fight to keep our Nation free. The point I tried to make was that there is no special protection for a library record which would bar a Federal terrorist investigator from obtaining those records. Your local county attorney can subpoena them the same as any Federal investigator to try to stop a terrorist. Neither section 215 nor any other provision of the PATRIOT Act specifically mentions libraries or is directed at libraries. Nevertheless, as Director Mitchell points out, it is important that library records remain obtainable as one of the kinds of ``tangible records'' a section 215 order can reach. Intelligence or investigators may have good and legitimate reasons for extending to library/bookstore records. I would just point out that I prosecuted a number of cases. I prosecuted one guy--they made a television show about it--and we got his records and got a search warrant and seized items he had. He had a book called ``Death Dealers Manual.'' He had a book called ``Deadly Poisons.'' That was relevant evidence to help convict him of a crime. So we are not going to allow a prosecutor access to this information. A guy may say: I don't know anything about medicine; I have never studied it. If the prosecutor goes down and checks with the library and subpoenas the records and sees that he bought three books on medicine, that may be relevant evidence to an important case. So to say that somehow library records can't be subpoenaed as part of an investigation goes beyond the pale, frankly. But because the Library Association had a fit and they complained, we have put in special protections for libraries, virtually like the spousal privilege or the priest-penitent. I will conclude my remarks by saying that I do remain frustrated--not at the good intentions of my colleagues. They are well intentioned. Our colleagues really want to improve liberty in America. But the truth is, they have gotten off base. We have let outside groups with agendas confuse people about this legislation--confuse them as to whether historic civil liberties are being undermined when they are not--and as a result, we have had more difficulty passing this bill than we should have. I see the Senator from Texas is presiding. I appreciate his patience in listening to me. As a former attorney general of Texas and a former member of the Supreme Court of Texas, he is a thorough scholar in these issues. I am proud to say that though he wouldn't agree with everything I have said, but in general he agrees with my view that this act is sound. He has been a steadfast advocate for it and understands the necessity of it and that it does not undermine any of the classical liberties we as Americans take for granted. I yield the floor.

Mr. SESSIONS

Mr. SESSIONS. If the Senator will yield, I have talked about the details of this bill and individual complaints the Senator has about this or that provision in some detail. I will do so again. At this point, what we are facing is a filibuster of the motion to proceed that impacts the entire legislation. I would ask the Senator if the Senator remembers that when the bill came out of the Senate, it said there would be a 7-day notice if there were a sneak-and-peek search warrant. The House bill had 180 days before notice would be given. The conferees moved far to the side of the Senate and made it a 30-day notice. Is that the basis of the Senator's desire to filibuster this entire bill, the difference between 7 and 30 days, recognizing in this body we seldom get anything exactly as we want it?

Mr. SESSIONS. Mr. President, I ask unanimous consent that the order for the quorum call be dispensed with.

Mr. SESSIONS. Mr. President, we are again enduring another filibuster of the PATRIOT Act. It is frustrating to me in the sense that I believe, properly understood, the PATRIOT Act provides tremendous protections to the people of the United States which don't now exist, and that those protections are crafted in a way which is sensitive to and consistent with the great civil liberties which we all cherish. Two months ago, in December, we had a long debate, and since then, we have had to extend the PATRIOT Act for some time without reauthorizing it. Leaders have met and worked and dealt with some concerns. I know four Republican Senators who had concerns, and their concerns have been met. I think others also have likewise felt their concerns have been met. They are not large changes, but it made the Senators happy and they feel comfortable with voting for the bill today. That is good news. It is time to pass it. I believe the American people expect that we will be able to have an up-or-down vote on this legislation. That has been blocked. There has been a majority in favor of the legislation for some time. To get to cloture, we have to use 30 hours of debate, which will probably last throughout the day and into tomorrow. We will get there this time, I am confident. When we do, we will have a fairly strong vote, I believe, in favor of the legislation. We certainly should. I urge my colleagues to work with us as best they can to move this forward in an expeditious way that allows for the up-or-down vote that is necessary. I have talked about it a number of times, but I thought today I would focus on the question of why the PATRIOT Act matters, or are these just academic issues? Are they issues of an FBI agent wanting to violate our civil rights and spy on us? Some group in Government out here with black helicopters trying to find out what people are doing and then take away our liberties? That is a great exaggeration. This is not what is at stake here. This bill is consistent with our great American liberties. It has not been held unconstitutional. Overwhelmingly, the powers given in this act are powers that law enforcement officers have had for years. They have been able to utilize them to catch burglars, murderers, drug dealers, and the like. The local district attorney can subpoena my library records, medical records, and bank records. The Drug Enforcement Administration Act by administrative subpoena--not even a grand jury subpoena--can subpoena my telephone toll records. That has always been the law. That is the law today. We have provisions that allow our investigators to do that for terrorists. One would think somehow we are ripping the Constitution into shreds, that this is somehow a threat to our fundamental liberties. It is not so. Let me point out I had the privilege, for over 15 years, to be a Federal prosecutor and work on a daily basis with FBI agents, DEA agents, and customs agents. These are men and women who love their country. They believe in our law. They follow the law. In my remarks, I will demonstrate these agents, unlike what is seen on television, follow what we tell them to do. If they do not follow what we tell them to do, they can be prosecuted, removed from the FBI, the DEA or the Federal agency for which they work. In fact, they know that and they remain disciplined and men and women of integrity who follow the law. Therefore, do not think, when we pass restrictions on how they do their work, that it is not going to be followed; that if it is a really big case, such as on ``Kojak,'' that they will go in and kick in the door without a warrant. That does not happen. In 2001, we know at least 19 foreign terrorists were able to enter this country and plan and execute the most devastating terrorist attack this Nation has ever seen. The reasons the United States and terror investigators, the people we had out there at the time--FBI, CIA, and others--failed to uncover and stop the September 11 conspiracy have now been explored carefully by a joint inquiry of the House and Senate Intelligence Committees and other congressional committees and commissions, as well as the 9/11 Commission. These very commissions and inquiries have reviewed, in painstaking detail, the various pre- September 11 investigations that were out there--investigations, inquiries, preliminary inquiries--gathering information that raised people's suspicions about terrorism. These investigations could have but unfortunately did not stop the September 11 plot. We have seen how close the investigators came to discovering or disrupting the conspiracy, only to repeatedly reach dead ends or obstructions to their investigations. Those are the facts they found. Some of the most important pre- September 11 investigations, we know exactly what stood in the way of a successful investigation. It was the laws Congress wrote, seemingly minor, but, nevertheless, with substantive gaps in our antiterror laws, preventing the FBI from fully exporting the best leads it had on the al-Qaida conspiracy. One pre-September 11 investigation, in particular, came tantalizingly close to substantially disrupting or even stopping the terrorist plot. But this investigation was blocked by a flaw in our antiterror laws that has since been corrected by this PATRIOT Act being filibustered today. This investigation involved Khalid Al Midhar. Midhar was one of the eventual suicide attackers on the American Airlines flight 77 which was flown into the Pentagon across the river from here, killing 58 passengers on the plane, the crew, and 125 people at the Pentagon. Patriots all. An account of a pre-September 11 investigation of Midhar is provided in the 9/11 Commission Staff Statement No. 10. The 9/11 Commission looked at what information we did have prior to these events, and this is what the staff statement notes: During the summer of 2001, a CIA agent asked an FBI official [a CIA agent responsible for foreign intelligence talked with an FBI official responsible for the security and law enforcement international] to review all of the materials from a Al Qaeda meeting in Kuala Lumpur, Malaysia one more time. The FBI official began her work on July 24th prior to September 11, 2001. That day she found the cable reporting that Khalid Al Mihdhar had a visa to the United States. A week later she found the cable reporting that Mihdhar's visa application--what was later discovered to be his first application--listed New York as his destination . . . The FBI official grasped the significance of this information. The FBI official and an FBI analyst working on the case promptly met with INS representatives at the FBI Headquarters. On August 22nd, INS told them that Mihdhar had entered the United States on January 15t, 2000, and again on July 4, 2001 . . . The FBI agents decided that if Mihdhar was in the United States, he should be found. At this point, the investigation of Khalid Al Midhar came up against the infamous legal ``wall'' that separated criminal and intelligence investigations at the time. The Joint Inquiry Report of the House and Senate Intelligence Committees describes what happens next: Even in late August 2001 when CIA told FBI, State, INS, and Customs that Khalid al-Mihdhar, Nawaf al-Yazmi, and two other ``Bin Laden-related individuals'' were in the United States, FBI Headquarters refused to accede to the New York field office recommendation that a criminal investigation be opened, which might allow greater resources to be dedicated to the search for the future hijackers . . . The FBI has attorneys. They read our statutes, they read the laws we pass, they tell the agents what they can and cannot do because they are committed to complying with the laws we place upon them. The FBI attorneys took the position that criminal investigators CANNOT be involved and that criminal information discovered in the intelligence case would be ``passed over the wall'' according to procedures. An agent in the FBI's New York field office responded by an e-mail, saying-- And I will quote the agent in a second but the scene is this: The FBI field office in New York concluded, after obtaining information from CIA that this individual, one of the hijackers, was a dangerous person and should be found. And the FBI field office--it is a big deal to be a special agent in charge of the New York field office, the biggest one in the country--recommended to FBI headquarters that we act on it. The FBI lawyers read the laws we passed and said ``you cannot.'' This is what the agent in New York responded when he heard this, sent it by e- mail. See if this doesn't chill your spine a bit. He said: Whatever has happened to this, someday someone will die and, wall or not, the public will not understand why we were not more effective in throwing every resource we had at certain problems. That was his reaction. It was a natural reaction. How did we get this wall? It occurred in a spate of reform legislation after abuses of Watergate and the Frank Church committee hearings. They decided that in foreign intelligence--that is one thing, domestic is another--foreign intelligence does not always follow every rule. We ought to have a clear line between the FBI, which is over here in America, and we ought not give them information that the CIA had because they thought somehow this was going to deny us our civil liberties, which was not very clear thinking, in my view. But these were good people. They were driven maybe by the politics of the time or what they thought was good at the time. They created this wall we have demolished with the PATRIOT Act--and good riddance it is. There is no sense in this. The 9/11 Commission has reached the following conclusion about the effect the legal wall between criminal and intelligence investigations had on the pre-September 11 investigation of Khalid Al Midhar. This is what the 9/11 Commission concludes: Many witnesses have suggested that even if Mihdhar had been found, there was nothing the agents could have done except follow him onto the airplane. We believe this is incorrect. Both Hazmi and Mihdhar could have been held for immigration violations or as material witnesses in the Cole bombing case. This was our warship, the USS Cole, that was bombed by al-Qaida, killing a number of American sailors in Yemen; an attack on a warship of the United States by al-Qaida. What does it take to get our attention? This report continues: Investigation or interrogation of any of these individuals, and their travel and financial activities, also may have yielded evidence of connections to other participants in the 9/11 plot. In any case, the opportunity did not arise. There was a realistic chance, had these rules not existed, rules that this PATRIOT Act eliminates, we would have been able to move forward with an investigation that had some prospect of actually preventing September 11 from occurring. Some say, Jeff, you cannot say that for certain; and I am not saying it for certain, but I have been involved in investigations. You never know. You get a bit of information, you follow up on a lead or two, you get a search warrant, you surveil an activity, and all of a sudden you find that bit of evidence that takes you even further into an organization committed to a criminal activity or a terrorist plot you never knew existed. This is reality of law enforcement work today. We ask them every day to do this. And those investigating terrorist cases are giving their very heart and soul to it. They are trying every way possible, consistent with the law, not outside the law, to gather all the information they can to be successful. So we know the PATRIOT Act was enacted too late to have aided in the pre-September 11 investigations, unfortunately. But it did raise our consciousness of the lack of wisdom on the reform legislation that was passed the year before--all with good intentions. Let me mention another matter of a similar nature. Another key pre-September 11 investigation was also blocked by a seemingly minor gap in the law. The case involves Minneapolis FBI agents' summer 2001 investigation of al-Qaida member Zacarias Moussaoui. Hearings before the 9/11 Commission raised agonizing questions about the FBI's pursuit of Moussaoui. Commissioner Richard Ben-Veniste noted the possibility that the Moussaoui investigation could have allowed the United States to ``possibly disrupt the [9/11] plot.'' Commissioner Bob Kerrey, a former Member of this Senate, even suggested that with better use of the information gleaned from Moussaoui, the ``conspiracy would have been rolled up.'' Moussaoui was arrested by Minneapolis FBI agents several weeks before the 9/11 attacks. Do you remember that? He was arrested early that summer. Instructors at a Minnesota flight school became suspicious when Moussaoui, with little apparent knowledge of flying, asked to be taught how to pilot a 747. The instructors were concerned about it. They were on alert. They did what good citizens would do. Remember, this is before 9/11. But they were concerned about this oddity. They called the FBI in Minneapolis, which immediately suspected that Moussaoui might be a terrorist. FBI agents opened an investigation of Moussaoui and sought a FISA that is the Foreign Intelligence Surveillance Court--national security warrant to search his belongings. But for 3 long weeks, the FBI agents were denied that FISA warrant. During that 3 weeks--you know the truth--the September 11 attack occurred. After the attacks--and largely because of them the agents were then able to obtain an ``ordinary'' criminal warrant. So after the attacks, the agents were issued an ``ordinary'' criminal warrant to conduct the search. And when they conducted the search, his belongings then linked Moussaoui to two of the actual 9/11 hijackers and to a high-level organizer of the attacks who was later arrested in Pakistan. The 9/11 Commissioners were right to ask whether more could have been done to pursue the case. This case was one of our best chances of stopping or disrupting the 9/11 attacks. Could more have been done? The best answer is probably no--based on the law that existed at that time. The FBI agents were blocked from searching Moussaoui because of an outdated requirement of the 1978 FISA statute. Unfortunately, one of that statute's requirements was that the target of an investigation--if it were to be subject to a search under a FISA warrant, a foreign intelligence warrant--the agent had to have proof that he was not a lone-wolf terrorist, but he must have been an agent of a foreign power or a known terrorist group. The law did not allow searches of apparent lone wolves, like Zacarias Moussaoui was thought to be at the time. They did not have the evidence to show otherwise. So according to the FBI Director, the man in charge of the FBI, Robert Mueller--a former prosecutor of many years and a skilled lawyer--the gap in FISA probably would have prevented the FBI from using FISA against any of the September 11 hijackers. As the Director noted in his testimony before the Judiciary Committee: Prior to September 11, [of] the 19 or 20 hijackers . . . we had very little information as to any one of the individuals being associated with . . . a particular terrorist group. So in other words, their lawyers in the FBI were saying: Well, you can't use the FISA. I know you want to. I know you have suspicions. And I know he looks like a terrorist. And we would like to search his belongings and see if he has any connection with any terrorist organization and maybe find out if they have any bombs or plans there. But you can't do it because we lack one little bit of proof. We can't prove he's connected to a terrorist group or a foreign nation. Sorry. Can't do it. So the ``lone-wolf'' gap was fixed by the Intell reauthorization, and adopted as part of the PATRIOT Act. We need to reauthorize it and continue it into law. What the various reports and commissions investigating the 9/11 attacks have shown us thus far is that where our antiterror laws are concerned, even seemingly little things, minor things--it might seem like they were OK at the time--can make a big difference, a life and death difference. Before September 11, few would have thought that the lack of authority in FISA for the FBI to monitor and search lone-wolf terrorists might be decisive as to our ability to stop a major terrorist attack on U.S. soil. Indeed, that is true. We did not think about it. We did not think clearly about it. And before September 11, though there was some attention to the problems posed by the legal wall between the intelligence-gathering agencies and the criminal investigative agencies, there was little sense of urgency to fix those matters. We accepted it. The FBI accepted it. It was the way you had to do business. You could not violate the law. I am sorry, you cannot investigate. You cannot participate with the CIA. Even though you may think he is a terrorist instigator, you cannot participate because there is a wall that the Congress created. So at the time, these all seemed like legal technicalities--not real problems, the kind of problems that could lead to the deaths of almost 3,000 American citizens. Today, we face the same challenge--recognizing why it is so important to fix small gaps in the law that can lead to large consequences and real-life disasters. Congress must not take the position that enough time has been passed since 9/11. Congress must not allow the information wall to be reconstructed by blocking the passage of the PATRIOT Act, or allow the tools we have given to our terrorism investigators by the PATRIOT Act to be taken away. We must pass the PATRIOT Act reauthorization conference report. It is that simple. It permanently plugs most of the holes that we know existed in our terrorism laws. The report retains a few sunsets. I do not think they are necessary. I think they were good, sound changes in the law. But people are nervous that they might be abused, so they will automatically sunset if we do not extend them. OK, we will do that. If that will get some people more comfortable so they will pass this bill, we will do that. And the report has a long list of additional civil liberties protections. It is a compromise product that came out of our Judiciary Committee, I believe with a unanimous vote, and with a unanimous vote on the floor of the Senate, and went to conference. A few changes were made in conference. But where there were conflicts, overwhelmingly, the conflicts were decided in favor of the Senate product. And it was that product that finally hit the floor of the Senate in December. And we have had this filibuster going ever since. Hopefully, now we are in a position to end it. I urge my colleagues to examine the nature of the PATRIOT Act as it is now configured. Read it carefully. Ask any questions you have. Make sure you understand what powers police have today in your hometowns all over America. And do not get confused that some of the things provided for might sound if--you listen to critics--as if they are new and far- reaching and utterly dangerous. They are part of everyday law enforcement--overwhelmingly, they are--and I believe are consistent with the highest commitment of American citizens to civil liberties. I would also mention this. There are almost 3,000 people who are no longer with us today. They have zero civil liberties as a result of the most vicious and hateful attack on 9/11. That is not an academic matter. That is a fact. As that FBI agent said: Someday the American people are not going to understand how we were not able to intercept and investigate these groups. Mr. President, I thank the Chair and yield the floor.

Mr. SESSIONS. Well, we all don't get exactly what we want, I say to the Senator, No. 1. No. 2, under current law, the so-called sneak-and-peek search by which you can, if you are investigating a major criminal enterprise or a terrorist group, actually conduct a search without actually telling the person the day you conducted it, the courts allow you as much time as they choose to allow you, for the most part. Some courts may have said 7 days. I am not aware at all that is the law in this country. It is what the judge says. This sets the standard. It says 30 days, and then they have to be repeated after that. We have a bill on the floor that is a matter of life and death. I would ask my colleague to be somewhat more amenable to the fact that he won a pretty good victory in conference but just didn't get everything he wanted in conference by going from the House version of 180 down to 30.

Mr. SESSIONS

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

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I wish to share some thoughts about NSA, the National Security Agency, and the wiretaps that have taken place, the brouhaha that has occurred in the press and in Congress, and why I believe this program is necessary, why I believe it is legal. I know the Presiding Officer has been, perhaps, the most eloquent spokesman in the Senate on this subject. He believes this is legal and proper and has articulated those views very ably. I shared some thoughts the other day about why it is so important, why there is much political goings-on here instead of substance, and why we need to continue with the program. I would like to share a few more thoughts today about the care the administration took to be respectful of Congress, to not overreach their legal authority, and how they worked to keep Congress briefed on what the program was about. The administration officials briefed congressional leaders more than a dozen times on the terrorist surveillance program. More than a dozen times they went before the proper senior officials of the U.S. Congress--in the House and Senate, both Republican and Democrat--to advise them about what this program was about and what they were doing. That includes the majority leader of the Senate, who is Republican, the Democratic leader, Mr. Reid, and before him, Mr. Daschle. In the House, it includes the Speaker of the House and the Democratic leader. It includes the chairman of the House Intelligence Committee and the ranking Democrat on the House Intelligence Committee; the Senate Intelligence Committee chairman and the ranking Democrat on the Senate Intelligence Committee. Those are what they call the big 8--or The 8. The Intelligence Committees deal with these highly classified programs involving national security. We have always understood that you cannot tell 100 Senators and 435 Congressmen a bunch of secrets because if you do, they will leak. As a matter of fact, I am sometimes even amazed the eight can keep a secret, but apparently they have done well, at least until the recent leak, and we don't know where it came from. It may well have come from another source. These eight are briefed on the program. These are the top people in Congress. They are not children. They are not people who can be pushed around. They are grownups holding particularly high offices. If they have a problem with the program, they are not children; they know when it is time for them to speak up, if they have an objection, to raise it, and they did not object. There were no objections made, no call to stop this program by any of those eight people who, over a period of years, were informed. It actually is more than eight. As I noted, we have had two Democratic leaders, Senator Daschle and Senator Reid. We had Senator Trent Lott, as well as Senator Bill Frist. We had Senator Richard Shelby, as well as Senator Pat Roberts. So there are 15 members who have been briefed on it and had an opportunity to object and have not objected. Then all this stuff hits the fan in the newspapers and everybody gets excited about it. We have some Democrats saying it is illegal and that it ought to be stopped. They are saying it is illegal. But if you noticed one word they didn't utilize, it was ``stop.'' They caused all this fuss revealing to the world many of the capabilities of the system, making the system less effective than it could be. In fact, Porter Goss, the head of the CIA, has said it has rendered severe damage to our intelligence capability. They did not say stop. Nobody is saying stop. Nobody has submitted a resolution in the Senate to say stop. Nobody has introduced legislation, which they have every right to do, and which we in Congress have a right to do, to cut off funds for this program. We could end this program tomorrow. All we would have to do is come together as a Congress and say there shall be no Federal dollars expended to carry out a program of surveillance such as this. They would end it just like that. That has not been proposed. Why has it not been proposed? Because it is idiotic to stop a program such as this. How stupid can we be if we eliminate a program such as this? There is an article in the Washington Post--it is breathtaking really--in which Senator Biden said: I don't understand why you would limit your eavesdropping to only foreign conversations,'' said Senator Biden to Attorney General Gonzales. The article seems to suggest, after complaining about the program, they should have wiretapped more people when both ends of the conversation were in the United States. Perhaps we should consider that. I think there is a realistic basis to conclude that the President has that power if it is relevant to the security of the United States of America. You just have to read through the lines. I was not in the meetings. I am on the Armed Services Committee and I am on the Judiciary Committee where we had a lot of these discussions and hearings. The President and his team at one point said: What about legislation, can we pass legislation? All the people who apparently discussed this matter were in uniform agreement that if we brought a bill up to specifically authorize this kind of wiretapping, it would cause a lot of discussion in the Senate, and it would reveal to the world the program. So the President basically said: I believe under the authorization of force you gave me to act against al-Qaida, who has declared a war on us and we have declared a war on them, I have the power to do that on international calls; I am confident in that. His lawyers have written opinions and briefs. They researched the history, and he concluded that he did, and that is what he basically told the eight Members of Congress, and they did not object. They could have said: No, you have to introduce legislation. That is a reasonable statement for any Member of Congress to make to the executive branch: Mr. President, if you think we can write legislation that would allow technology like this to be legal, explicitly by statute, we will have to write it in such a way that it will obviously reveal to those we are trying to surveil what we are doing and what our capabilities are, and it will undermine the program. President Bush told us straight up in more than one speech: It is my responsibility to defend the people of the United States of America. That is what he said his responsibility was, and I believed it and the American people believed it and we said yes. He said: I am going to use every tool I have to defend this country. We said yes, and this is one of the tools he has, and he decided to use it. I think he did so in a very appropriate way. Congress has been advised of that. Some have said it broke the FISA law; it did not comply with FISA. Attorney General Gonzales made a very nice point, a very important point. FISA claims to be the exclusive means of electronic surveillance, and people have cited that principle, but it actually contains numerous exceptions, such as a 15-day exception after a declaration of war in section 111 of FISA, a 72-hour exception for emergency surveillance under section 105, and finally there is an exception for surveillance authorized by statute in section 109. The idea clearly is that there would be further statutes passed that would expand the FISA law as circumstances develop. Then Congress, after 9/11, passed the authorization for use of military force against those whom the President finds are responsible for attacking us on 9/11. He has defined that narrowly as al-Qaida. We authorized the President to use all necessary and appropriate powers to surveil or to attack al-Qaida, to go after al-Qaida. As the U.S. Supreme Court in Hamdi declared, they said the U.S. military can capture, detain, lock up, put in jail as a prisoner of war an American citizen who has associated himself with al-Qaida in the war against the United States without a trial. We have authorized our military under the authorization to use force, to go out and kill the al-Qaida people wherever they are in the world as they are deemed to be at war against us. So it stretches a bit to say you can't intercept their telephone calls. You can lock them up without trial, put them in jail and restrain their freedom--even an American citizen, you can kill them on the battlefield without a trial or a Miranda warning, but you cannot surveil their phone calls. What the Supreme Court said in Hamdi was that although the authorization to use force did not specifically authorize locking up people and holding them as prisoners of war, it is a natural incident to the power given to the President to conduct war. The power to conduct war is also the power to detain and restrain people who are at war against you. Attorney General Gonzales has made a very compelling argument. How much less of an invasion of a person's liberty is it to listen to their phone conversation than it is to lock them up in jail? So a natural incident to the conduct of a military operation, since the beginning of warfare--certainly in modern times--has been surveillance and intelligence-gathering operations. We worked tirelessly to break the German code. We worked tirelessly and broke the Japanese code. We were able to listen in on their conversations. That is what you do against an enemy; you try to find out what they are doing and how they are planning it so you can stop them. I am confident a rational interpretation of the authorization to use force to go after somebody militarily includes the power to detain prisoners, as the Supreme Court has said, and also would include the power to intercept the communications of the enemy. This is consistent. Maybe ``amendment'' is not the right word to FISA, but it is a statute passed in harmony with the concept of FISA when it was passed. It is a subsequent statute that would take priority over the past statute. Another argument is the past statute was more explicit about these intelligence matters and said this was the sole way to do it. But I don't think you can interpret an authorization to go to war in any way that would prohibit intelligence-gathering operations. Indeed, the Hamdi case held that previous statutes that said you could not lock people up under these circumstances were overridden by the authorization to use force because a necessary incident to utilizing military action against the enemy is to lock up people you capture. There is also, I believe, a good argument to be made that the President has inherent authority as Commander in Chief and a duty consistent with that authority and responsibility to protect the people of the United States. Every Federal court to have decided the issue has held--including the Third Circuit, Fourth Circuit, Fifth Circuit Courts of Appeals--that this is so. These cases involve surveillance that occurred before the FISA was passed, true; but in 2002 a FISA court of review relied on those cases. The FISA Court, created by FISA, relied on those previous cases to make this ruling: FISA could not encroach on the President's constitutional power. That is In Re Sealed Case, in 2002. Former Attorney General Griffin Bell, himself a long-time Federal judge who was called in to be President Jimmy Carter's Attorney General when FISA was being considered, was asked about this and the President's inherent power. Judge Bell, if you have known him, in that inimitable way he has, said, ``We can't change the Constitution by agreement.'' I would add, a statute can't amend the Constitution. FISA cannot eliminate the powers of the President, those inherent powers to defend America or to authorize electronic surveillance of an enemy with whom we are in combat, al-Qaida, in a time of war. Authorization for force, the President's inherent power--these are clear, I believe, authorizations of force. We will have a lot of debate about it. We will have a lot of discussion about it. But as you look at it more and more, I think people are becoming confident that these powers exist. Now we have a recent article saying, Why don't you do even more, if you have this power? Should we pass legislation? Let's talk about it. I think one thing we need to take out of the FISA law is the pretension that it represents the only authority the President has in these areas; that every act has to be done within the FISA. To that extent I believe it is clearly unconstitutional. Those words are not legitimate. They need to come out. We should not pretend to say we have the exclusive power in the legislative branch to override the President's responsibility to defend this country. Then if there are other ways we can write the statute, I will discuss it. But I frankly am not sure it is going to be a successful enterprise. It is going to be difficult to write a statute that would draw the line on where the President's authority exists and where it does not. Tell you what, I get nervous, I get a little worried when we at a given point in history start writing a statute to define the ultimate power of the President and propose to contain that power because you never know when we will have a problem with it. The Church Committee came out with this wall, a wall of separation between the CIA and the FBI, and many believed that wall was responsible for the lack of sharing of information between the FBI and CIA. They thought they were doing it for constitutional reasons. They thought they were doing a good thing. But we realized that was a disaster and we tore that wall down many years later, 20 years later, as a result of the experience we had with 9/11. So I would express my concern about statutes dealing with treatment of prisoners or surveillance, that we need to be careful about how we do that. I think the American people believe there should be some flexibility for the President in matters that could relate to our national security and the lives of our own citizens. We need to be careful as we go forward with that. But to date, we can say a couple of things with certainty: that the leaders of the House and the Senate were informed fully of what the President was doing. They did not object. And the Attorney General has made a compelling case, I believe, that he was authorized to do these national security intercepts, both by the authorization to use force and by the inherent powers given to the President. I would note, also, that the President's narrow use of a power is something that should be appreciated by the critics. He said it can only involve a phone call that is international and a phone call from al-Qaida, in which one member of the call was al-Qaida. If we do those two things, the average American can be sure they are not getting caught up in it. To hear the news articles, of course, it was domestic spying. That is far from the reality of this situation. I ask unanimous consent that the recent editorials of the Washington Times and the Washington Post be printed in the Record.

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

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I want to share some thoughts on the asbestos litigation legislation that is before us. We have a point of order raised. I believe that point of order is a technical point of order. I believe it is not a point of order that has the potential to avoid a large amount of Federal expenditures. In fact, as we all know, the asbestos bill is funded by those companies and defendants who are being sued as an alternative to paying out money from aberrational, disjointed, inconsistent lawsuit verdicts, with 60 percent of that money going to lawyers both for the defendant companies and for the plaintiffs. They propose to pay this money into a fund, allowing it to be distributed, with 5 percent or less attorney's fees cost, directly to those who are determined to be sick from asbestos. Surely, we can make this happen. Surely, we cannot allow the spasm that now exists, that is an embarrassment to the legal system, embarrassment to the profession of law, and an embarrassment to Congress for failing to fix it, when the Supreme Court and other judges have, on numerous occasions, called on us to fix it. That is what I would point out. I was hoping that this afternoon we would be able to discuss votes throughout the day, amendments. Senator Cornyn has offered an amendment, and we have had votes. There are others out there. I will point out amendments that I have offered and plan to offer which deal with the subrogation issue, particularly involving longshore shipping companies, where they are self-insured, and those companies are entitled to subrogate to some of this money that would come out, under normal circumstances, to money that is paid to the victims. And for a lot of reasons, I think they are in a specific special place that needs some relief. The silica claims, we need to consider that more carefully. I have proposed legislation that if this bill were to fail, the 5-percent cap on attorney's fees would apply, or the court would apply standards of comparable attorney's fees instead of allowing such a large chunk of money to be taken from the victims and their recovery to pay attorneys, as is the case today. We have some medical criteria in the bill; that is, if you are going to be sick, how do you know it was caused by asbestos; what do you have to show before you can make a claim so that we can pay those who are sick but not pay those who are not sick; or if those who are sick have a sickness unconnected to asbestos, they should not recover from the asbestos fund; otherwise, we would have a fund that can't survive. That needs to be tightened. Those are some of the amendments I would like to offer. We will get on that presumably next week after we vote on this point of order. I urge my colleagues not to allow this budget point of order to derail the opportunity we have today--it may be the last, best opportunity--to fix an asbestos system that is out of control. It is just not working right. Under the present system, we are going to have--and we have today--thousands of people who have been injured by asbestos. Many of them are veterans--thousands of people who are injured, some severely, some dying as a result of their exposure, who will not be able to recover any money because the company against which they have a lawsuit, the company which was responsible for exposing them to asbestos, no longer exists. They are bankrupt, and there is no one to sue. Secondly, we have a large number of companies--77--that have gone into bankruptcy, and many are in bankruptcy now. If we allow this uncontrolled rush to take every dime out of those companies as quickly as possible, as the lawyers for the individuals who are sick are trying to do, those companies, too, will go out of existence. There are other reasons certain people are not going to be able to recover who are sick from asbestos. This bill would give everybody a chance to have a fair recovery, so I believe it has a big humanitarian benefit. Also, if we leave these cases in the litigation system, a jury might become inflamed or become sympathetic for a victim and may render a $100 million verdict. Another jury may render a $100,000 verdict. Another jury may render nothing. So we have really aberrational allocations of scarce resources to people who are sick. We need to have a comprehensive system by which those who are sick are compensated fairly, promptly, and without attorney's fees. There is no doubt, as we know, that the attorney's fees, according to the Rand Corporation, total 58 percent of the amount of money paid out by the defendants. So defendant companies hire their own lawyers, and they are being sued for huge amounts of money, and they hire the best lawyers they can get. They defend those cases. One study shows they get a little more than plaintiffs' attorneys. Then the plaintiffs' attorneys sue, and they take their fee out of the recovery. If you look at it in an economic sense, all of the money paid out by the defendant companies should go to the victims, as much as possible. They should not have to pay a chunk to their own lawyers or a chunk of it to the plaintiffs' lawyers. We have 60 percent at stake. This bill caps the attorney's fees at 5 percent. So we are talking about 53, 55 percent of the money being paid out by the defendant companies, and it is not getting to the victims. So we have a lot of ability here to do the right thing. We can get more money promptly to victims. We can get victims compensation who otherwise would not get it because the companies they might sue are no longer in existence or there are other legal impediments to it, and we can treat people fairly, and people similarly situated would get similar amounts. For example, mesothelioma, the deadly cancer that has been connected to asbestos exposure, would result in a prompt payment of $1.1 million to anybody who has contracted that disease due to asbestos exposure. If the doctor diagnoses that and it is not a diagnosis of any real dispute, you simply go in to the claim administration, make your claim, and 50 percent of that $1.1 million is to be paid within 30 days and the additional 50 percent paid in 6 months. That kind of process is quite different from what is happening today. There are 300,000 lawsuits pending in America. Some dockets have tens of thousands of lawsuits and only a handful of judges. These cases are not going to trial immediately. People are not getting paid promptly. It is an embarrassment to all of us. Some people are getting paid aberrationally and without consistency or fairness. Some are getting a lot, some are getting nothing. Some people are getting paid little checks over a period of 10 years, and there from different companies that settle up. That is not a way to handle a mass tort, where a lot of people are ill, in which the defendant companies are prepared to pay. All of that is not working right. We ought to take those companies' money--$140 billion of it--and set it aside in a fund and create a fund from which we can pay people whenever they are sick. That can be done, and that can make the system better. It was interesting to note that we don't often see a lot of agreement between the Washington Post and the Washington Times. But the Washington Post had an editorial today in which they say: Some amendments may be reasonable at the margin, but the bill's central idea to replace litigation with a $140 billion compensation fund, to be financed by defendant companies and their insurers, must be preserved. They go on to say: The fact that the bill is being attacked from both directions suggests that its authors, Senator Arlen Specter, Republican of Pennsylvania, and Senator Patrick Leahy, Democrat of Vermont, have balanced competing interests in a reasonable manner. I am not sure that is totally correct, but there is some truth to that. It says: But the truth is that the bill's main opponents are the trial lawyers who profit mightily from asbestos lawsuits and who constitute a powerful lobby in their own right. Mr. Specter and Mr. Leahy are, in fact, model resisters of special interests who have spent more than two years crafting legislation that serves the public interest. For Mr. Reid to demean this effort in order to fire off campaign sound bites is reprehensible. That is the Washington Post. I certainly agree with that. The special interests here are those who have lost sight of the victims, who have lost sight of trying to create a justice system that works; the special interest of those people engaged in the system who are enriching themselves in it every single day and do not desire to see it end. But I will note that Dicky Scruggs, one of America's most prominent, perhaps the most accomplished trial plaintiff lawyer in America, who lives in the Mississippi gulf coast area, where asbestos was such a bad problem at the shipyards, commenced this litigation many years ago-- maybe 30 years ago. He just appeared with Chairman Specter and said that enough is enough. We don't need this in the courts anymore. Not enough money is getting to the victims. The system is not working. We need change. He supports this bill. He believes there is sufficient money in it to take care of those who are sick, and he supports this bill that has my amendment in it that limits lawyer's fees to 5 percent, unless it goes on appeal. If the lawyer comes in with a client with mesothelioma, gets a doctor's report, spends a few hours on that, talks with the client, files a claim with the board and they give him a date, and they walk down there and have the doctor's report and the physician says this person has mesothelioma, he is entitled to $1.1 million, and a 5- percent fee is $55,000. That ought to be enough. Yet we have people saying that we cannot have these fees. We cannot cut these fees. This is too much. We are creating a trust fund. If you file a claim for a person under the Social Security Act, the Federal law limits your attorney's fees. If you make claims in workman's compensation cases in most States, attorney's fees are limited. It is perfectly proper to do so. I believe 5 percent is adequate. The Washington Times said this. It is a conservative newspaper here: This bill should pass; Senator Arlen Specter, Pennsylvania Republican, and Patrick Leahy, Vermont Democrat, are due accolades for getting this far on a longstanding problem that has befuddled everyone for decades. Many asbestos victims have suffered or died of mesothelioma or other illnesses while the courts and Washington struggle with a resolution. The victims and their families deserve to be made whole. I believe those were strong and appropriate words. Then they comment on Senator Reid, the Democratic leader. They say: Mr. Reid said the bill benefited ``a few large companies'' while supposedly leaving the little guy in the lurch. Really? Why, then, do insurance giants AllState and AIG oppose the bill? Why are many plaintiffs anxious to see it pass? In reality, the big guys speak through Mr. Reid--in this case, unscrupulous lawyers who stand to profit greatly from keeping asbestos cases in the courts. That is who the big guys are who are making the big money. They say: . . . the FAIR Act offers what nothing else previously has: A light at the end of the tunnel for claimants. I think one estimate I have seen has been that $70 billion has been paid out to date to victims of asbestos. Somebody said the figure is more than that. Think about this: think about the fees. Let's say 25 percent of that is a legal fee. Some make more than that. Some of the numbers show 25 percent as an average total when all is said and done. But most fees are normally one-third. What is 25 percent of $70 billion? What, $18 billion? That is going to lawyers. These are not thousands and thousands of lawyers. Really, I would say there are probably no more than a few hundred plaintiff lawyers who are handling well over 50 percent of the cases. So it is an incredible amount of money. We could create a system where you can walk in with a medical report, basically, and have your compensation delivered to you promptly, without all these fees being taken from it. Why can we not do this? That is why independent groups such as the liberal Washington Post and the conservative Washington Times have both endorsed the bill. I am hopeful that we will, over the weekend, take a good look at the budget point of order that has been raised here. When my colleagues look at it, I hope they will conclude that this is not the kind of budget point of order which was contemplated when this rule was passed. This budget point of order arose from Chairman Gregg's brilliant understanding that many of our entitlement programs are drafted in such a way that when they score that bill, they score it over a maximum of 10 years. People write the bill so it will cost more the next 10 years than it does the first 10 years. If the Government is starting an entitlement program, you can object if you can show it goes up too much in the outyears, which I think is a good reform. But this bill is not Federal taxpayers' money. This bill represents money that will be paid into the fund by the people who are paying out money now to victims in a willy-nilly, random fashion that is unprincipled and unjustified. They will put the money in voluntarily in exchange for not having to hire a bunch of lawyers to defend themselves in courts in every jurisdiction, virtually, in this country. That is what they are trying to do. The legislation does not impose any cost on the American taxpayers, and if the fund was to collapse and not have enough money in it, then the taxpayers do not pick up the tab. They do not pick up the tab. The cases go back in the courts, and any companies that still exist would have to pay, just like they would before this reform passed. I think this budget point of order, for reasons I am not clear about, lies apparently in a technicality. It does not lie in the classical understanding of its purpose to protect the Federal taxpayers because this is not taxpayers' money; it is the defendant companies' money. When we vote on this budget point of order early next week--I am a member of the Budget Committee. I know Senator Cornyn is and others are who care about the budget. We meet every day and we take heat every day for trying to constrain the growth of spending and entitlements in this country in a rational way to meet the needs of our people. But to stop the abusive growth in these programs, we support a balanced budget. We support containing spending. Many of the people who are supporting this objection, however, have not demonstrated, in my view, any important interest over the years in containing spending. A lot of them are big spenders. That objection, while technically is legitimate, does not in any substantive way have an impact on the debt of the United States in the next 30 years as this act would be enforced. I urge my colleagues to look into this point. Do not allow this supermajority vote. To keep the bill on track, 60 Senators will have to vote to waive this point of order. It would be a tragedy, indeed. When we see Senator Leahy, Senator Specter, and Senator Sessions supporting a piece of legislation, when we see the Washington Times and the Washington Post supporting a piece of legislation, when we see the veterans groups incredibly anxious to see this legislation passed, and when we see overwhelmingly the businesses that are involved in this process and are paying out this money that want to see it passed, why can't we get it passed? Let's not allow it to fall on a supermajority vote of 60 instead of the normal 50 required to pass legislation. I hope everyone will study it, and when they do, I think they will feel comfortable in voting to waive the budget point of order.

Mr. SESSIONS

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

Mr. SESSIONS. I believe my colleagues on the other side are not going to use any of their morning business time that is remaining. A minute or less remains. I ask unanimous consent that I be able to commence my remarks at this time.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I think the first time I heard the figure 31 to 27 was by Senator Durbin. It didn't surprise me, really. The asbestos defendant companies are hiring some of the best lawyers in America, and they charge them big fees. It is part of what they cost. If it is 31 percent for the defendants' attorneys and 27 percent for the plaintiffs' attorneys, I am not really surprised. I had no idea precisely how it would come out, but I am not surprised at that. What I would say to my colleagues here in the Senate, however, is that it is not disputed that 58 percent of the money paid out by the defendants is going to lawyers and not to the victims. It goes to the plaintiff, and the plaintiff has to pay almost half of the judgment to his lawyer, so he or she doesn't get to keep all the money. He has to pay this big lawyer fee. Plus the corporation is being sued and has 31 percent of what he is paying out going to his own lawyers. So who is winning here? This is really indisputable. Who is winning here? The legal system is grinding up people and companies in an extraordinary way which just has to be ended. We have to work our way through this. It is so great to have a Presiding Officer, a medical doctor, try to help us deal with some of the medical criteria. There still remains a great weakness in this bill in a number of things. My colleagues present the most contradictory arguments. One time they are in here saying we have to have it in the Department of Labor, or we have to pay more and more and more, and then they come in and make the argument that these funds traditionally get out of control. When Senator Coburn and Senator Cornyn propose an amendment that tightens the medical criteria a little bit, they object and vote against them. This would be sort of amusing if it wasn't such a serious thing. Some of my colleagues have been saying that the fund is clearly going to fail because we underestimate the number of claims. Claims are not the real problem. This bill is going to help with the claims. I don't know how many claims this bill will reduce--not quite as much as the Cornyn bill did because it was better criteria, in my view; more realistic, according to medical data and science. But under this bill, I would guess that 40 percent to 50 percent of the current claims are not legitimate. It prohibits and bars claims when a person is not sick. The latest estimates are that half the claims being filed today are by people who are not sick. If you have asbestos exposure and you can see some scarring in a person's lungs, the chance of that person getting sick are enhanced. And under this legislation they don't get paid right then. But if they are monitored medically, and if they become sick, they will get compensation. That is the best way to handle that, for sure. If you get sick, you simply walk in with your doctor and with a report that says what the degree of illness is, another doctor will probably check that, and if it is verified, they will write you a check. You do not have to give a third, a fourth, or 40 percent to a plaintiffs' lawyer, and a defendant corporation isn't having to hire lawyers to defend against the lawsuit. My colleague, Senator Durbin, is so eloquent and is a skilled lawyer. He made an argument that I suppose people listening probably took a bit of an interest in and wondered about. He declared that the 10 companies with the most exposure would pay substantially less under this trust fund than under a court process--$20 billion less. Let me say two things about that. It is not a question of how much they pay out, it is how much gets to the victims, people who are sick. That is the most important question. How do we get more money to people who are sick without having to have the whole business collapse? Second, he did not point out the fact about these tier I companies. These are the companies that are in bankruptcy. They are in bankruptcy already as a result of this litigation. There is only so much a company can carry. If you kill off the company, what do you do then? How can anybody be paid? You can't destroy the companies totally and take them out of business if you expect them to continue to pay, for 25 years, people who become sick. That is why they already have protections in bankruptcy, and they are paying through the bankruptcy court less than they would be otherwise. To keep these companies in the game, keep them alive, we give them a certain amount they have to pay depending on how big the companies are. And some are big and can pay a sizable amount--and they will pay a substantial amount of money, but they won't be going bankrupt. A lot of people do not understand this. If the company that is responsible for exposing you to asbestos no longer exists, whom do you sue? If there are two people who have been exposed to asbestos, both of them have serious lung damage and it reduces their capacity to function, let us say both of them are entitled to a $200,000 judgment. One of them wants to sue a company that is gone, no longer exists, the company that is responsible, you would say: Well, they will be able to recover somewhere. No. If the company no longer exists that exposed him, that person won't collect $200,000; he won't collect a dime. But the other one happens to have been exposed by a company that is still in existence and has money, or insurance, they can collect the full $200,000. That is happening today. To make it crystal clear, I will ask you about an automobile accident. Have you ever heard of people who have been run into, have an automobile accident as a result of a drunk driver who is uninsured and somebody is injured, they say, I am going to sue them and I am going to get a $1 million verdict. You know what the lawyer says? Does the defendant have any money? Well, no. Does he have any insurance? No. What does he have? He has a rental, that is the only car he had, it is a piece of junk, and it is not worth anything. The lawyer says: If you get a $50 million verdict, you will not collect one dime. It is not worth the trouble to go to court over. This happens in America. It is the way the law is. But this trust fund says whether the company that exposed them and injured them is in existence or is not, they will be able to recover too out of a uniform trust fund. And companies that are bankrupt will be able to pay at a level that allows them to stay in business and continue to pay into the trust fund. Seventy-seven companies are already bankrupt. They say: Well, we are going to make more companies pay. We are going to make more companies pay than are supposed to pay--somehow make them pay more than they are supposed to pay. But let me say this to my colleagues or anyone who may be listening. Now there are 8,400 companies being sued, being dragged in, and many of them have the most tenuous exposure. I remember very vividly a man coming into my office. He bought a company that at one time sold asbestos and had not sold asbestos for many years before he bought it. He buys it and makes it a part of his company. The next thing he knows, all of them are beginning to go at that little company as a defendant which he bought, and he is liable for it. Money is being sucked out of his whole, big company and going into this fund. These companies realize that. They may not be the main target today, but the clever and sophisticated and determined plaintiff lawyers have demonstrated a capacity to add on companies and make them liable more than they were before. Many companies are willingly prepared to pay into this fund so they won't be sued for the rest of their existence; so when they go to a stockholders' meeting and write a prospectus which shows what their liabilities are, they can say exactly what their asbestos liability is rather than being required to list 5,000 asbestos cases filed against them. Somebody may say: How much is that going to cost? Well, we don't know. Well, could it be $1 million each? Well, we do not know. We don't think so. I may not want to invest in your company. I may not want to buy stock in your company. I have to have some more certainty about how much you are going to pay. That is one of reasons we are trying to pass this trust fund, so the defendant companies can say to their stockholders and would-be investors and those who would contract with them what their future financial prospects are. Isn't that a good public policy thing to try to do? Veterans, if we don't pass this bill, you are not going to be able to recover. Most of them have nobody to sue. You can't sue the Federal Government for this. A lot of other people already have found that the people they are entitled to sue by law either have no money or no longer exist. I will say this: I think the legislation is headed in the right direction. I believe that Senator Coburn is correct. We need to watch this criteria. If we get that wrong, it can take this bill down. A doctor knows that thousands of Americans every day who are not exposed to asbestos get colorectal cancer or get throat cancer or get prostate cancer. If somehow anybody who had any exposure to asbestos is not going to be able to come into the fund and demand that the fund pay them for cancer which they may have been genetically predisposed to, whether or not they have been exposed to asbestos, we have done something that is dangerous and the fund may not be able to survive. The Congressional Budget Office says this fund, as rewritten, will survive. But I believe it could be tightened up to make it better. I believe that the fund has a chance to be viable throughout its entire life and fulfill its promise because we have done a better job in recent years in dealing with exposure to asbestos. There has been a sea of change in what has happened. In earlier days, the companies did not warn the people who would be using their product about how dangerous it was. Even after they knew it was dangerous, they didn't warn them. Now everybody is warned. For 30 years, maybe 35 years, there has been exceedingly great care utilized when asbestos is about. You see people with masks on and all of that. I think it is logical to assume that we will continue to see a decline in the claims and also this bill will take out the unjustified claims. Claims of people who have not been given any disability or sickness, even though they have been exposed and they get sick, they will be paid. If they don't get sick, they won't be paid. That will reduce a lot of the claims. It will come down to people with legitimate illness. If a person comes in with that most grievous disease, mesothelioma, which is generally a fatal disease, this would entitle them to claim $1.1 million dollars, be able to have half of it paid in 30 days and the other half in 6 months. Today, they do not know what they will get, and most of the claimants are deceased before money is recovered. I suggest the absence of a quorum.

Mr. SESSIONS. Mr. President, I serve as a member of the Budget Committee, and I am very pleased that Chairman Gregg put in language that allows for this budget point of order. I think it has a potential in many of our entitlement programs to help rein in abusive spending. But this is quite a different matter, I say to my distinguished colleague, Senator Ensign. He is such a terrific asset to this Senate, a great member of the Budget Committee, and is rightly engaged in trying to make sure we don't throw away money. I hope I have been an ally with him in that process. But this is not Government money. This is money put up by the defendants who are paying out every day in judgments and lawsuits all over America. They have said: We are tired of having 58 percent of the money we pay out not get to the victims. Only 42 percent gets to the victims. We ought to create a system to allow victims to get more money, and we can have a little certainty as to what we pay out. So they agreed to pay into this fund. It is not the Government's money. It simply would be administered by the Department of Labor and, therefore, apparently the experts say it qualifies for this objection. Let me say what happens if there is a shortage. What happens is the fund fails, the FAIR Act ends, and the plaintiffs get to go back to court, as they are today, and file their lawsuits. And the Government is not on the hook for that money, if there is a shortfall, No. 1. Senator Ensign correctly guesstimated that more money would come back from foreign company profits into the United States with his tax relief bill than CBO did. Well, I would say this. I can guesstimate this. At one point, I represented plaintiffs. I see that the lead plaintiff lawyer in the history of this litigation has made an estimate on it and he has concluded there is plenty of money in this trust fund. Why is it likely, in my opinion, that there is enough money? People say there is not enough money here and it is going to fail. Why would I conclude that may not be so, that probably the fund may survive? First, those who are putting money into it think it is enough. They would not subject themselves to this if they didn't think it would work. Second, CBO estimates it, and why would they estimate something in this nature? The reason is, somewhere in the 1970s--probably early 1970s--people became sensitized to the dangers of asbestos. They learned about it and crackdowns were undertaken to limit exposure. By the time 1980 got here, very strict rules were imposed--and that was 26 years ago--on how to handle asbestos, and exposure today is nil compared to what it was in the 1940s and 1950s, when people were unknowingly placed in positions where their health was destroyed as a result of massive exposure to asbestos fibers. So it is obvious we have very little asbestos in our society today. If you even see somebody take asbestos out of a building today, they have masks on. All of this stuff is required by OSHA so that not one fiber will touch them. I think the likelihood is that we are going to see a continued decline in the asbestos claims and, as a result, I think it is possible--although I am certainly not an expert--that CBO, plaintiff lawyer Dicky Scruggs, and others are correct to conclude there is enough money in the fund to make it go. There are a few things we need to do, however. We need to tighten up several of the medical criteria issues in this legislation so it will be sure to be successful. If we allow people to come into the fund because at one time or another they were exposed to some asbestos and they may contract some cancer or some other disease, and they can then claim they are, therefore, owed payment from the asbestos fund, we will never have enough money. The criteria we have today are far better than exist in the courts of America, but I think there needs to be some further tightening up, so that people who are sick from asbestos get paid and paid generously, but people who contract other diseases are not unjustly enriched by being paid out of a fund that is designated for people who have contracted disabilities and diseases as a result of asbestos. That is what is fair and just. That is what the fund should do. I hope we will be successful in reaching that. I say again that I respect this point of order and I respect Senator Ensign for raising it. I point out this is indeed technical in the sense that the monies in this fund are not Federal Government money, and that if the fund runs out of money, the Government doesn't put in extra funds. It goes back into the litigation system and the plaintiffs continue their lawsuits in that fashion. Therefore, I think it would be wise under these circumstances to waive the Budget Act. I thank the Chair and yield the floor.

Mr. SESSIONS. Mr. President, I will yield the floor when Senator Specter returns. I will say a couple of things. First, under this criteria bill--which has good criteria and some very good provisions in it--veterans are not going to be able to recover. Veterans don't have anybody to sue, and they would be very much disadvantaged. That is why they oppose it. No. 2, we would still have litigation, and the reason litigation now ceases to be wise is because the defendants are prepared to pay. It is basically not a question so much of how they are responsible--whether anybody is responsible for damages; they are prepared to pay, but they want to know a predictable amount that they are paying, No. 1, and they want to have it paid fairly. Under this system, if you meet the illness criteria and you are able to proceed with your litigation, one person with asbestosis, who seriously has a disability, maybe is on oxygen--as I have known people to be as a result of breathing asbestos--they might get $100 million, literally. Another person may get zero. So I think we have this aberrational way that a certain limited amount of resources would be utilized to help people who are sick. We are at a point now where we have created a circumstance that would allow a fairly even workmen's compensation type distribution of it. Secondly, it allows the litigation spasm to continue. Yes, it will take out the bogus claims from people who are not sick and who don't need to be in court. Those claims will be able to be removed. But they will have large numbers of trials of those who actually are injured by asbestos, and the lawyers on both sides have to be compensated. We know today that those compensation arrangements turn out to eat up 58 percent of the cost of what the defendant companies pay out. In other words, many of these companies that are in bankruptcy, and many more on the verge of bankruptcy and could be pushed into bankruptcy, are paying out to victims, but only 42 percent of what they are paying out gets to the victims. So I was hoping in this legislation--my vision has always been, how can we not fix this system? How hard is it to take this 60 percent, allow the business community some predictability and certainty over 30 years, and get more money to the victims quicker and faster? If, instead of 300,000 pending lawsuits, let's say you have now 150,000 pending lawsuits, that is a lot of lawsuits. That is a lot of lawsuits. And they are pending by the thousands in certain districts in America. People are not going to get trials right away. They are not going to be able to say I want to have my trial today; I have a serious asbestosis; I am on oxygen; I may die soon, or I have mesothelioma, and this is a deadly disease, and the doctors say I only have 9 months to live, and I want to have my case tried. It is not going to happen that way. It is not happening that way now, and it will not under this bill. Therefore, people are going to die and suffer in poverty for years before they get any payment; whereas, in this bill, we can get the money to the victims promptly and fairly, in an objective way, with plaintiffs similarly injured, similarly situated, getting similar amounts of money--generous amounts of money. As I noted, a mesothelioma case gets $1.1 million. Half would be paid within 30 days, without any need for an attorney whatsoever. You go in with a medical claim, and if an attorney is involved, the maximum he could get is 5 percent. My colleague from Texas said we modified the attorney fee rule, and I was at fault for that. Senators Specter and Leahy and others asked we consider the fact that when cases are appealed, they tend to become complex and require quite a bit of lawyer time, and we ought to allow lawyers to have more than that, if the judge approves it. So I thought that was a reasonable request. We have amended it only to that small degree. It is not an opening up of attorneys' fees under this bill. I am concerned that some of the primary advantages of asbestos reform would not be availed under this amendment. That is why I am reluctantly not able to support it. I hope we can continue with the bill and that other people will bring forth thoughtful amendments, as Senator Cornyn has, and those who joined with him and presented it in a thoughtful way. But as I have stated, I don't believe it is the proper vote. I yield the floor.

Mr. SESSIONS. Mr. President, how much time is left?

Mr. SESSIONS. Mr. President, I respect my colleague from Texas and those others who believe this amendment will be a preferable way to deal with the asbestos morass we now have. I, however, based on my best judgment, cannot agree. It perhaps will make some businesses happy and some plaintiffs' lawyers happy, but the one group I clearly think will not be as well treated and will not have the same guarantees and protections will be the victims. We are not here to represent any one group. We are here to look at a litigation problem that has gone wild. It has lost control. It is not operating properly. I think the trust fund concept is the only way to make this thing have any sanity about it. As I understand it, the medical criteria will help a great deal in making sure that claims by people who are not sick are not maintained in court, that they can be dismissed short of trial. That would be a tremendous benefit. I will not dispute that. It would certainly reduce those kinds of lawsuits. However, it would have no coherence. It seems to me that two people could file a lawsuit, and one could draw a favorable judge or favorable jury and win $50 million and the other one, I suppose, could win nothing or $1 million. I do not know that it would represent any predictability for the defendant companies so they could show on their balance sheets precisely what they are going to be looking at in the future as they go forward. It also would maintain the current litigation method of handling the lawsuits. That, to me, is where we have had the most difficulties because 60 percent of the money that is being paid out is being eaten up by lawyers. So if you have lesser numbers of lawsuits but they are bigger and will be more intensely litigated, the defendant companies have to hire expensive attorneys to defend themselves, and the plaintiffs' attorneys, facing top defense attorneys, will charge their normal high fees, as the case may be, and you end up back where we are, as the RAND Corporation said, with 60 percent--58 percent--of the money being paid out in expenses, which is what I would like to see avoided. The attractiveness of the legislation that is before us is we take the 60 percent that has been eaten up and we take probably 50 percent of that and allow it to go to the victims. They get it, with certainty, in an equal amount. So if you have mesothelioma, a deadly disease, under this system, you could file your claim, with a doctor's certificate stating you have mesothelioma--a fairly indisputable diagnosis--and you get $1.1 million; half of it within 30 days and I believe the other half within 6 months before you die. As I noted before, why have we had so many mesothelioma widows here? It is because these lawsuits take years. I am not just saying that. This is a fact. These cases take years, and people die of diseases or become disabled without receiving money. Under this bill, you will be able to get your money promptly. The proposal, as I understand it, will not necessarily fix that. Maybe the cases could be settled. Again, I say to my distinguished colleague from Texas, we agree on so much of this. I certainly will say this. His proposal would be far better than the current system. There is no doubt about that. The current system is absolutely indefensible. It is to the point that it is immoral, and the Congress has no higher responsibility than to make sure our legal system is working effectively. It is not happening that way. I believe the medical criteria in the base bill before us is not tight enough, that it will still allow a large number of people to maintain lawsuits for diseases they were going to get anyway from other natural causes or misbehavior such as smoking. They were going to get those diseases anyway, and they want the asbestos fund to pay for it. When it is connected to asbestos exposure, and it can be shown scientifically, this bill allows for that. It actually allows for people to draw on the fund who probably shouldn't qualify for it. I am for tightening up those criteria. I am for eliminating the frivolous, baseless lawsuits where people are not sick, which this Cornyn bill would do. But I do believe it would undermine one of my highest goals in this legislation, and that is that we would be in a position where you make a claim like you would in workers' compensation. You have so much injury, you get so much money, and you get it promptly. And the maximum attorney's fee would be 5 percent. I don't see how you can limit attorney's fees if you are going to have a long, competitive trial. The victims are going to need top- flight attorneys, and the defendants are going to need top-flight attorneys. The juries are going to be calling these cases. Some of them are going to say big verdicts, and some of them are going to say little verdicts. We will have more inconsistencies, more jackpot justice than I would like to see. I am reluctantly of the opinion that this would not be the best approach. If this bill gets any worse, I would certainly see that the suggestions of the Senator from Texas would be preferable. If this bill were to flounder and isn't successful, I certainly would agree that his proposal is better than the current law and would support it. Right now, the Specter legislation is preferable. I yield the floor.

Mr. SESSIONS

Mr. SESSIONS. I would like to say how much I appreciate his leadership. I note that Senator Bond is a senior Member of this Senate and has served on the Intelligence Committee. He has a son serving in the Marine Corps in Iraq right now in harm's way defending this country. He is a brilliant lawyer, made the highest score on the constitutional law test--I happen to know this--when he was at the University of Virginia. I think the American people need to listen to what he says about this issue. I guess that is my question. Otherwise, I yield the floor.

Mr. SESSIONS. Mr. President, will the Senator yield for a question?

Mr. SESSIONS. Mr. President, last night I was in my office in the Russell Senate Office Building and we were evacuated to the parking deck, and following the excellent leadership of the Capitol Police, people responded professionally and well without any undue alarm and showed good discipline and good spirits. I point that out to ask, have we forgotten there is an enemy out there who desires to attack us, desires to attack our Nation's Capitol, or any other spot in our country, desires to cause us harm, and that we are spending billions of dollars, that some of the best people in this country are working night and day, like our Capitol Police, in localities all over this country to protect us? From local sheriffs, police officers, State police officers, the FBI, the CIA, the Customs Service, the Immigration Service, to all the agencies that are involved in protecting us, they are out there working their hearts out, and sometimes I think we in this body have gotten too comfortable about this. We have been the subject of a declaration of war by al-Qaida. Bin Laden has declared war on the United States. He has asserted it is his right and, indeed, the duty of his followers to attack Americans and even civilian targets, men, women and children. We have authorized the U.S. Government, the President, and the executive branch to exercise certain rights because it is war. It is not a criminal matter. If we capture our enemies, they are not entitled to a trial in the southern district of New York because they are prisoners of war. They are entitled to be held without trial as every prisoner of war since the beginning of the Republic and the rules of war have been instituted. They are held without trial. In the Hamdi case, the U.S. Supreme Court stated that even an American citizen engaged in the war against the United States can be held without trial as an enemy combatant against the United States because it is not a criminal matter. A state has one primary responsibility, and that is to maintain its existence against those forces that would destroy it. I would ask if anyone thinks we would have any liberties at all if bin Laden ran this country. He would tell you what clothes to put on in the morning. We would have people not only not being free, they wouldn't be able to drive an automobile--women would not be--under his mentality. This is a serious question, and we need to respond to the challenge to this country in an effective way consistent with our heritage of laws and liberties. There is no doubt about that. Secretary Rumsfeld has pointed out recently something that is so obvious, but we should think about it. He said the military challenge today is to find, fix, and finish the enemy. He said there is no doubt if we target and develop a plan, we can finish them successfully. We have that military capability. There is no military in the world capable of destroying the military of this United States. I ask you to remember what we heard after 9/11. What we heard was our intelligence is weak. What we heard was we did not have enough intelligence, that we did not have enough information to find the enemy; that they had sleeper cells in this country and those sleeper cells were activated by phone calls from Afghanistan and bin Ladin over here to encourage them to step forward to carry out the events that led to September 11. Isn't that what happened? And we had this spasm of self-flagellation about intelligence and how we operate our intelligence community. Our job unfortunately was based on the fact that there were failures and we could have done better, had we had interceptions of some of those 18 responsible for 9/11 prior to 9/11, that if we had been able to listen to those conversations, we could well possibly have taken steps to avoid that and 3,000 American citizens would have civil liberties today. Now they have none because they are no longer with us. We have to ask those questions and go back and look at the history of our country and what is the legitimate power of the President and our forces in a time of war. What do our intelligence leaders tell us about the capability of the National Security Agency as it has dealt with the ability to intercept international phone calls involving al-Qaida members? What do they tell us? What do all three of our top intelligence people say? The National Intelligence Director John Negroponte testified last Thursday before the Intelligence Committee and he stated: This was not about domestic surveillance. It was about dealing with the international terrorist threat in the most agile and effective way possible. FBI Director Robert Mueller testified last Thursday as well, stating to the Senate Intelligence Committee: We get a number of leads from the NSA from a number of programs, including the program that's under discussion today. The FBI Director is saying we get a number of leads from this program under discussion today. And I can say that leads from that program have been valuable in identifying would-be terrorists in the United States, individuals who were providing material support to terrorists. Let me interject here. I was a Federal prosecutor for a long time. I dealt with a lot of drug gangs and some organized crime-type groups. They are pretty close-knit organizations. Sometimes you don't even know they exist. Then all of a sudden you have the ability to identify them and penetrate the organization and gain information against them, and all of a sudden you realize right in your own community there is a major drug-dealing gang or a major organized crime network. So one tip, one lead from an intercepted phone call, can identify a sleeper cell in any community in America. I kid you not. That is the way law enforcement works. How do you get a warrant to surveil the sleeper cell of terrorists in the United States? Oftentimes it is this kind of intercept on a national security call from foreign sources here that causes us to have the information that leads to the identification of a group bent on destroying our country. CIA Director Porter Goss testified to the Intelligence Committee: I'm sorry to tell you-- And I hope the American people listen to this-- I'm sorry to tell you that the damage has been very severe to our capabilities to carry out our mission. . . . I use the words ``very severe'' intentionally. That is my belief and I think the evidence will show that. He is talking about the revealing to the world our intelligence capabilities at NSA. He goes on to say: When I start talking about the disruption to our plans, things that we have under way that are being disrupted because of releases to the press or public discussion; when I talk about the risk to access, the sources or methods that are no longer viable or usable or less effective by a large degree; when I talk about the erosion of confidence in our working partners overseas, I'm stung to the quick when I get questions from my professional counterparts saying, ``Mr. Goss, can't you Americans keep a secret?'' How can we expect them to share intelligence with us if you pick it up in the newspapers? How can we have techniques of this kind and have them leaked to the press? I would say it is time for us to reevaluate how we do business. It is time for us to realize that we are in a war and that we are entitled to conduct that war and to win that war. Our military and our intelligence agencies have been charged by us--indeed, they have been criticized by us for not being effective enough in this effort. I will conclude. I see my colleague from Missouri is here, and he knows this issue very well. I would like to yield to him. I will conclude with this thought: Please note, Americans, that our military and intelligence agencies have every right to intercept foreign phone calls between two foreign sources. That has never been in dispute. The question we have is whether the authorization of force and the inherent power of the President allows warrantless surveillance of an international call that is connected to the group we are at war with, al-Qaida, that calls into the United States. To say we can't do that will lead to this weird result. We intercept an international phone call that has not been connected to the United States and we discover information that they are planning an attack on France, we can call France and tell them. If they have a plan that we discover that they are going to attack Canada, we can call them and warn them--or New Zealand or Mexico or any other of our allies and friends around the world. But if the call is into the United States from al-Qaida, we can't intercept that call, we can't use that capability to defend Americans. I believe that is not logical. The American people don't agree with it. They support and expect our military to carry on these activities. I hope and I believe they will be continued. Why do I believe they will be continued? Because despite the fact that we have told the world of this capability and severely damaged our capability, not one Member of this Congress that I know of has said we should stop it. If it is so evil and bad, why do they say it does not need to be stopped? I thank the Chair and yield the floor.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I urge everybody who has questions about this legislation and who did not hear Senator Cornyn's remarks, to get a copy and review it. I think he made some terrific points and has gone to the heart of the issue and explained a lot of what we are doing. Mr. President, the asbestos system, as it is operating today, is fraught with misconduct and inefficiencies and unfairness. That is an absolute fact. I had been involved, as a private lawyer, many years ago--I guess in the late 1970s--with some of these cases. I wish to say that I was representing plaintiffs who were injured badly as a result of severe asbestos exposure--people inside ships and submarines, cutting asbestos with electric saws where the air was so filled with asbestos dust that they could hardly breathe. They had to leave the submarine to get fresh air, and then go back in to work. They were severely damaged and disabled as a result of that. People like the plaintiffs I represented deserve compensation, there is no doubt about it. Since sometime in the 1970s, it has become clear that asbestos is a dangerous product and there have been complete changes in how it is handled. Asbestos today is almost treated similar to nuclear waste. We have had laws to prohibit it altogether. If you see somebody removing asbestos from a building, they have masks on, and they do all these things with the greatest of care so they are not exposed. But some exposure for most people does not result in serious illness, or any illness at all. But certain exposure can. So it is a dangerous substance, and it creates a lot of stress and concern that a person might get sick. For those who are currently sick, they deserve compensation. So I say it is rational that some people have filed lawsuits to seek recovery. But the way these lawsuits are now proceeding through the system makes very little sense. We have 300,000 cases pending today. Plaintiff lawyers get a chunk of those fees or recoveries on a contingent basis. We have criticized them for taking their third or 40 percent, or whatever they get out of a recovery--money that on the docket sheet might look like the plaintiff got $100,000, but the truth is, right off the top comes $30,000 to $40,000 that goes to the attorneys, not to mention the cost of buying depositions and the cost of medical witnesses who testify at trial. That all comes out before the plaintiff gets any money. That is the fact, the way it works. I was never been proud of how this system worked in the asbestos cases I saw when I was involved with it. It has gotten worse today. Groups of lawyers have made hundreds and hundreds of millions of dollars out of these cases, and they file thousands of suits. They may have 10,000 cases pending. Plaintiffs are grouped, and then are not given individual attention. The lead lawyers probably don't even know the plaintiffs' names, and probably have paralegals interview them. So the system is even worse than when it initially started. What else has occurred with the system? We are having people who are not sick, as Senator Cornyn noted, recovering money and putting companies into bankruptcy; they may never get sick and probably will not get sick. Those cases are crowding out the cases of people who are sick. As I noted last night, there are widows of mesothelioma victims, a deadly cancer that is clearly tied to asbestos. We have those widows--some are for the bill and some are against the legislation-- lobbying us. I say to those widows that the sad thing is that your husband--or it could be a wife--did not get paid before they died. Why can we not create a system in which widows are not out here trying to claim the money, but instead we have a system where money goes straight to the victims, in their days of illness, before they pass away. Isn't that a better system? Under the national fund, if a person has mesothelioma and can show an exposure to asbestos, they can walk into the Administrator's office-- the office that will receive the claims, with a doctor and a medical report that demonstrates that this person has a disease--and if it is not contested--and I don't think many mesothelioma cases would be--they get a check right there for 50 percent of the $1.1 million. And then the other 50 percent has to be paid, as I recall, within 6 months. So they get a million dollars while they are alive to take care of their last days and their families, instead of having these lawsuits out here pending literally for years while people are dying without receiving compensation. That is happening today. These cases are not going to trial with big verdicts returned. They are clogging up the system. They are suing hundreds of defendants per plaintiff. Some defendants agreed to pay 250, others 150. The lawyer is taking out their fee, and little checks are going off to people who are sick. They never know how much they are going to end up with before it is over. They started out with 300 defendant companies, I believe, that shipped asbestos, that knew asbestos was dangerous and did not put warnings out, allowed people to breathe it and injure themselves, destroy their health. Those 300 companies were the only ones originally sued. There was a long battle over that. Then there was the decision that said, Well, if you were one of the companies that shipped asbestos into Engel's Shipyard, and you cannot prove when you shipped it, but if you shipped it in at any time, you are jointly and severally liable with everybody else. So plaintiffs would not have to prove that they breathed this asbestos--whether it was Owens Corning or Johns Manville or anybody else; as long as the company shipped it in there, they were liable, too. So that opened things up and more cases were filed. And then good lawyers figured out a way to add more defendants and find more deep pockets with insurance. And from 300 defendants, we now have 8,400 companies that have been sued. One of them I remember several years ago came to me and told me this story. He said: We bought a company, a subsidiary, that for 2 years had sold asbestos. They had not sold asbestos for many years before we bought them. We bought them, and now we are as liable as any company in the country. It is like they put an IV system running through the subsidiary right into the heart of another company that never was involved in shipping asbestos without warning the recipients. Yet they are responsible for funding all this. So this is the way this issue has mushroomed. This is the way it has really happened. That is why we have thousands of companies willing to pay into this fund to get relief. I mention the cost of the plaintiff lawyers, but think about these companies. They have lawyers, too. They have to pay them, and these are some high-paid lawyers. If you are, indeed, being sued for $100 million a person, and you have a number of claimants out there, you have to hire good lawyers to defend you. The RAND Corporation study has concluded that 58 percent of the money actually paid out by companies that are defendants did not get to the victims but was eaten up in these kinds of costs, like fees for plaintiff and defense attorneys. It is really tremendous. It started out with some tough litigation. Dickie Scruggs of Mississippi, a brilliant lawyer, believes these cases were justified. He thought up the cause of action. He battled these cases for years. He overcame all the legal defenses and then found the evidence that was critical to these cases. Then they found evidence that the company that shipped asbestos had known all along this was dangerous and did not tell anybody. They had a smoking-gun memorandum. That is how it started and went forward. Dickie Scruggs, just a few days ago, appeared with Chairman Arlen Specter and said: We are beyond that now. These cases ought to be settled based on the health of the person. It is not necessary to have them all in courtrooms all over America. It should not cost so much. It is a whole different ball game now. Now the companies are willing to pay money. They are not defending on the basis of whether they should pay. They only want to pay a fair amount, and they want some certainty in how much they pay. Dickie Scruggs thought that was reasonable. He said people who are not sick are being paid and the costs are too great. It is interesting that the real architect of these cases who represented the first plaintiffs and who battled those cases forward through all the objections and battles that occurred now says this bill is good for the plaintiffs. Some say some businesses might pay too much. I don't know that they know how much they are going to pay and how much they should pay. We are not here as Senators to decide whether companies ought to pay more to plaintiffs, or which defendants should pay more, and how much a plaintiff really should get, except to say we need to create a system that fairly allocates the money to the people who deserve to be compensated, and that the money is fairly distributed. There is a limited amount of money for asbestos cases. Quite a number of companies have gone into bankruptcy, and many more will follow. If they go into bankruptcy, they do not have to pay anymore. You can't get blood from a turnip. You are not going to be able to recover from bankrupt companies. Creating a system that allows the companies a chance to survive, to make money and to create wealth that they can then pay to people who are sick makes sense. That is what this bill tries to do. Those are achievable goals. The simple matter is, when you have almost 60 percent of the money paid out by these defendant companies going to costs, why in the world can't Congress come up with a plan to take that 60 percent, not let it be eaten up in costs, and send it straight to the victims? We can do that. That is what Senator Specter, Senator Hatch, and others have worked for years to accomplish. Lester Brickman, a professor of law at Yeshiva University in New York, who published an extensive article in the Pepperdine Law Review, had this to say about the asbestos litigation: The rules of ethics don't apply to asbestos litigation. Everything you see with asbestos is slimy. It's all under the radar screen and it's infected with self-interest and illegal behavior. That is a pretty strong statement. I have to tell you, Mr. President, there is too much truth in it. It shouldn't be that way. We can clean it up. It is time for reform, and that is what we are about today: cleaning up what has become a haven for abuse. We need to establish a system where real victims, those truly and currently sick from asbestos exposure, can receive immediate compensation. I know there are some who have concerns about S. 852. You can count me among those who believe this is not perfect legislation, that there are still some things that have to be done to fix it. However, it does represent a good start, and I think with certain amendments on the Senate floor and in conference it can be made better. If we work together, we can pass a bill that will help solve this current asbestos crisis. The asbestos litigation affects our economy adversely in a significant way. It has had an undeniable impact on jobs and economic growth. Instead of spending money on increasing production, expanding jobs, research and development, companies have had to spend millions of dollars paying claimants and fending off lawsuits. The runaway asbestos litigation system has forced many companies into bankruptcy. Seventy-seven companies are in bankruptcy or on the verge of bankruptcy because they have been the target of asbestos-related lawsuits, causing them to lay off 60,000 American workers who have in turn lost $200 million in wages. That is not a small matter. Companies are not saying we don't have to pay anymore. In fact, they are prepared to pay $140 billion. They are saying: Give us certainty so we can go to our shareholders and plan our future over the next 30 years, and then we can provide more money to actually go to the people who are sick and less to overhead costs, lawsuits, and lawyers. We will be happy; we will take that. That is the opportunity we have today. We must be sure that the trust fund we created preserves limited resources for the truly sick and does not pay claimants who have no real injury or whose sicknesses were not caused by asbestos. We are talking hundreds of thousands of people who have had some exposure to asbestos. Only those truly sick should be compensated. For example, thousands of people have developed colorectal cancer. Are the asbestos companies liable for everybody who at one time worked for them or was exposed in even a slight way to an asbestos product? Are they liable for diseases unlikely to be caused by asbestos? If you get skin cancer, are they liable for that, or heart disease or throat cancer? Maybe, maybe not; it depends on what the science says. Efforts have been made to place into this system liability requirements on defendants to pay damages for diseases that may have had no connection whatsoever to asbestos. That is the way you kill this system. We can't do that. We cannot have this fund, which has a limited amount of money--huge as it is--with these thousands of claimants--to pay people who are not sick because of asbestos--we have to be generous with victims, but we cannot be paying people whose sickness is not related to asbestos. Again, there is very little evidence, if any, that colorectal cancer would be connected to asbestos. As I noted, we now have 8,400 companies that are being sued as a part of this process. Many of these have a limited link, if any at all, to asbestos but are named in the lawsuit because most of the original manufacturers that were sued have gone bankrupt. In a statement to the New York City Bar Association, U.S. District Judge Jack Weinstein--one of the most famous judges in the country, I would add--had this to say about the impact asbestos litigation was having on certain companies' ability to stay in business: If the acceleration of asbestos lawsuits continues unaddressed, it is not impossible that every company with even a remote connection to asbestos may be driven into bankruptcy. These bankruptcies are not only a threat to jobs and the incomes of American workers, they threaten retirement savings. The average worker at a bankrupt asbestos-related firm with a 401(k) plan suffered $8,300 in pension losses. Of course, in a number of instances, when a person loses his job, he loses his health insurance as well. So this litigation is having an impact on real people. Judge Weinstein said even a company with a remote connection to asbestos could go bankrupt. One could ask, How is this possible? It is like I said before; this litigation is like an IV system that goes through one person, sucking all the blood out of them, and if they can find another person that has blood in them, they will begin to suck it out of them, too. It is just that simple. Whoever has the money is who they will go to next. Whoever is left standing is the next one this litigation turns on and in an attempt to show they are liable. We need to bring predictability to this system by creating a national trust fund. If we succeed, I believe the companies with asbestos liability will then be able to start creating jobs rather than eliminating them. We have a lot of important issues we are going to confront as we hammer out the final language in this legislation. It would be a shame on this Congress if somehow, some way, we cannot pass solid legislation that takes 60 percent of the money that is now going to overhead and lawyer's fees and use that to create better benefits for the plaintiffs and provide certainty to the defendants so they can plan their future without going bankrupt. Mr. President, I yield the floor.

Mr. SESSIONS. Mr. President, I see the other Senator from Montana in the Chamber. I thank both of them for their strong advocacy on this question. Senator Burns is, again, offering an amendment, I believe. To carry this further, I will say this to our colleagues. Now is a good time for debate. If you have amendments, let's bring them on and discuss them. Senator Specter and Senator Leahy, the chairman and ranking member of the Judiciary Committee, with bipartisanship, are committed to this legislation and trying to make it work. We are delighted to hear the debate. We cannot accept everything. But your ideas are being listened to. Some will be voted on. We will have a better bill when we complete the process. I yield the floor.

Mr. SESSIONS. Mr. President, I would be pleased to be part of it and sign onto it. I thank the Senator from New Mexico for his leadership in constantly pressing to make sure this Nation does not make a mistake. We have made a lot of them in our energy policy. We have been blessed to have the Senator there. We are now talking in Mobile about a new LNG terminal. Some people are concerned about it. We need to be very careful about it. But it costs so much more to import liquefied natural gas and then to regasify it and ship it around our Nation than to produce it off our own shore. And when we produce it off our own shore, the money stays in the United States; it doesn't go to these foreign countries. I believe, from an economic point of view, we have huge reserves out there. I will share, maybe, my thoughts a little later. Maybe Florida was legitimately nervous in the early days about these wells and whether they would damage their beaches. But this far offshore, production has proven now year after year after year to be safe. It is not their waters. These deep waters are not Florida waters; they are U.S. waters. We need to begin in a careful way to examine how we deal with this and see if we can't increase our production in the gulf. Alabama has found it to be safe. It is somewhat beneficial to our Treasury.

Mr. SESSIONS. Mr. President, the Senator from New Mexico should be congratulated for his leadership on this issue. He has understood it from the beginning. He warned us about the dangers of surging natural gas prices for years and years. As a matter of fact, I can remember a host of committee hearings in which Alan Greenspan warned us that we need to do something about natural gas. Isn't it true that we have now not only homes being heated and businesses being heated and we are using natural gas for fertilizer and other things, but electricity is using more natural gas than ever, to create our electricity? Is that the Senator's understanding?

Mr. SESSIONS. Natural gas wells. I live in Mobile, AL, on the gulf coast. We have a lot of production right around where we live. We have never had any serious spills, to my knowledge, that amounted to real damage to the environment since the beginning. They are more safe and careful today than they have ever been, and the technology is better than it has ever been. We are having a debate now about liquefied natural gas and building terminals where we send our money off to some foreign country that may be hostile to us, and they freeze, liquefy this natural gas at great expense, transfer it all the way over the ocean, and then they have to heat it up, which causes environmental problems, and then put it in our pipelines, and instead of the money staying in our country, it goes around the world. When we have these huge reserves right off our own shore, doesn't it make sense to the Senator that we ought to go forward and produce? I see the smile on the Senator's lips. We have been through this before. But it is really pretty basic. I hope the American people are beginning to understand that we can't deny ourselves. Do you know where they get the oil and gas from the Persian Gulf? They get it out in the water. If it is an environmental issue, it is as bad to get it out of the Persian Gulf, I suppose, as out of the Gulf of Mexico, and certainly economically it makes more sense, I believe.