John Warner

Mr. WARNER

Mr. WARNER. As a Senator from Virginia, I am proud to have the CIA principal office in my State. I have been working with them for 30- some-odd years. I have gotten to know many of them through the years. They are not people who would set out to violate the laws of our Nation. They are just like you and me. They have families and the same values we share in the Senate and in our neighborhoods. They do go abroad and assume an awful lot of personal risk on a number of missions. But in terms of following the laws of our Nation, and the international laws, I think they stand head and shoulders, and they are to be commended.

Mr. WARNER. Mr. President, I am delighted the Senator from Arizona brought this up because I have participated in a number of debates with our distinguished colleague from Missouri. What we always have to remind our colleagues of, as well as the American public, is that these companies have volunteered. They are not in this for a profit motive. There is some compensation for expenses. They are not unlike the men and women of the Armed Forces, all of whom today are in uniform because they raised their right arm and volunteered. We cannot ask these companies to subject themselves to the uncertainty and the threats associated with legal processes. We are going to lose a very important component of what I call the American spirit: voluntarism. Whether it is in the corporate world, whether it is in the Armed Forces or any other number of activities, we are a Nation known for people who step forward and volunteer. This is a clear example of how these companies cannot continue under the situation that persists today, because the directors of those companies, their corporate boards, have an obligation to their stockholders. It is a stretch to say to the stockholders, who are part of the voluntarism they are doing to serve the cause of freedom in the United States, that they should be subjected to a lot of court suits. So I appreciate the Senator bringing this up. It is important. We have to remind our colleagues about it. I am proud of what this Chamber did. They voted it through, very clearly.

Mr. WARNER. Madam President, I couldn't agree more. Furthermore, the service they are doing by virtue of this voluntarism directly contributes to the safety and the welfare of the men and women in the Armed Forces who are engaged in harm's way beyond our shores.

Mr. WARNER. At this point, we have about run out of time, and I wish to say a few words about the pending matter.

Mr. WARNER

Mr. WARNER. Mr. President, I rise today to recognize the Defense Advanced Research Projects Agency on its 50th anniversary. Today, DARPA celebrates 50 years of innovation and dedication to America's security. After the Soviet launch of Sputnik, President Dwight D. Eisenhower was determined to ensure this nation was never again surprised by the technological accomplishments of an adversary. On this day in 1958, a central research and development organization, known then as the Advanced Research Projects Agency, or ARPA, and unlike any organization in the world, was created within the Department of Defense. From the very beginning, its mission has been to ensure that the United States Armed Forces have access to the most advanced war fighting capabilities by developing ideas that many would consider too risky to implement. DARPA's mission is about making smart investments on high-payoff opportunities, and it has been very successful. Over the past 50 years, DARPA has delivered to our country innovative technological achievements that have given American Forces never- before-seen capabilities. I also note that this achievement has not come without tremendous sacrifice by thousands of DARPA employees and their families as they worked long days to solve challenging scientific matters. DARPA's notable achievements include early ballistic missile defense, stealth aircraft technology, unmanned aerial vehicles, and autonomous navigation. The benefits of DARPA's efforts have evolved in many ways, from the rocket engines that powered the first manned space flight to the smallest microelectronics in our cell phones today. DARPA also helped develop the Internet, and built the small receivers that made the global positioning system data easily accessible--both have changed the ways our forces operate, and have also changed the lives of all Americans for the better. Entire industries have developed from early DARPA-funded research in core technologies such as material sciences, microelectronics, photonics, and information technology. I congratulate DARPA for its service to our Nation. The Agency's commitment and contributions over the past 50 years have made DARPA the crown jewel in our nation's national security and we look forward to the achievements they will continue to make for future generations. As DARPA begins its work for the next 50 years, it is important that we do everything possible to help DARPA continue its tradition of excellence, and thus keep our Nation strong. (At the request of Mr. REID, the following statement was ordered to be printe din the Record.)

Mr. WARNER

Mr. WARNER. Mr. President, I rise today to recognize the importance of the National Defense University, NDU, and its contribution to our national security. Since 1976, the NDU has been the premier center for Joint Professional Military Education. Under the direction and leadership of the Chairman of the Joint Chiefs of Staff, NDU provides an educational and research environment to prepare future leaders of the armed services, the Department of State, other civilian agencies, and allied countries for high-level policy, command, and staff responsibilities. In addition, a limited number of students from private industry attend the university. Members of both Houses of Congress have benefitted from interactions with students and experts on the NDU campus. Students are selected for their leadership potential and many NDU alumni have gone on to senior leadership positions in their service, agency, or country. NDU is a center for joint, multinational, and interagency education. It is comprised of the National War College, NWC; Industrial College of the Armed Forces, ICAF; Joint Forces Staff College, JFSC; Information Resources Management College, IRMC; School for National Security Executive Education, SNSEE; Institute for National Strategic Studies, INSS; Center for the Study of Weapons of Mass Destruction, CSWMD; Center for Technology and National Security Policy, CTNSP; Institute for National Security Ethics and Leadership; and five special programs: Capstone/Pinnacle/Keystone, Joint Reserve Affairs Center, JRAC; International Student Management Office, ISMO; Secretary of Defense Corporate Fellows Program, SDCFP; and the NATO Staff Officer Orientation Course, NSOOC. With facilities located in Washington, DC, and Norfolk, VA, more than 1,000 people attend university courses and programs on any given day. NDU is an accredited graduate-level university awarding approximately 600 masters degrees each year. Through agreements with a number of universities, IRMC students can earn 15 graduate credits for work completed at NDU. At NDU, students are taught how to think--not what to think. The curriculum combines information technology, classroom experience, and experiential learning. Through lecture programs, students gain important insights from top military, government, industry, and international leaders to include the President of the United States, Cabinet-level officials, the Joint Chiefs of Staff, commanders from major military commands, Members of Congress, civilian leaders, and foreign ministers of defense. Speakers talk frankly with students under the University's nonattribution policy allowing a free exchange of ideas. Annually, NDU's outreach efforts include more than 500 conferences, symposia, and workshops; 20,000 visitors; 120 faculty and staff publications; and 350 conference presentations by university faculty and staff to both national and international audiences. The award-winning NDU Press produces numerous publications, which address national security issues. The NDU Library with a collection of more than 500,000 bound items, audiovisual materials, classified documents, and on-line services is an extensive source for information about national security policy, military strategy, defense resource management, and industry studies. The National Defense University is a significant and valuable institution for the development of leaders for America's national security needs.

Mr. WARNER

Mr. WARNER. Mr. President, I thank my colleague, the ranking member of the committee. I am privileged to serve on that committee with the senior Senator from the great State of Missouri. I would like to first make a few opening comments, if I might.

Mr. WARNER. Mr. President, first, I commend how well the distinguished Senator from Missouri has represented to this Chamber and its Members and, indeed, to all those in our Nation who are following this debate, how well he has represented a proper and balanced perspective and how a solution to the important questions that have been raised by all of us can be resolved. In my own case, I have thought long and hard about this situation, and I would like to reflect on a bit of history. I was privileged to serve in the Department of Defense from the years 1969 to 1974 during the war in Vietnam. At the latter part of my service there, we originated the concept of the all-volunteer force. There was great skepticism as to whether this concept would work, and it was a high risk to abolish the draft and to enter into this concept of all volunteer, to be the only persons to be given the privilege of wearing the uniform of the United States of America in the branches of the Army, the Navy, the Air Force, and the Marines. Fortunately, it was adopted by the President, eventually written into law by the Congress. That concept has worked. It is working at this very moment with brave young men and women all over the world. They are there because each of them raised their right hand and took the oath of office voluntarily. I see a direct analogy to this question that is before this Chamber and, indeed, the Nation, the question of whether corporations, which although they did not raise their hand and volunteer, they have nonetheless volunteered comparably to the men and women in the Armed Forces. The work product of their volunteering is every day saving and protecting the lives of our service personnel and, indeed, many others worldwide from the actions of terrorists and others who are trying to rip freedom away from our Nation and other nations. So as we reach our decision on this issue, let's stop to think about the United States of America, while not written into the Constitution, the Bill of Rights, or otherwise, has throughout its history adopted a concept of voluntarism by its citizens, by its companies to step forward and take on serious problems that confront our Nation. I see a direct analogy, I say to my distinguished colleague, and I stand steadfast with our committee which voted 13 to 2 to provide this framework which we hope will eventually become the law of the land, to give reasonable protections to these companies that are part of the overall volunteer force, be they in uniform or corporations, working to protect our Nation. Having said that, I say to my distinguished colleague, I think it is very important that we proceed to prepare a complete record for the scrutiny of all on these issues. I wish to suggest a question to my distinguished colleague. All of us have heard a number of comments that more time is needed to study this issue, the issue of carrier liability, carriers being those companies that stepped up to work on behalf of the cause of freedom and preservation of our safety here at home. Hasn't the Intelligence Committee conducted a thorough and bipartisan review of the President's surveillance program? And hasn't the committee determined the providers acted in good faith?

Mr. WARNER. For purposes of the record, I do not claim the credit. I was but one of many who worked on the concept of that great program. I found in this town, and as I know the Senator does likewise, the less credit you try and take, the more effective one can be in other tasks.

Mr. WARNER. Mr. President, I thank my colleague for that because the DNI, Director McConnell, a former admiral--I knew him in the Navy going way back when I was there. As a matter of fact, as a point of reference, when I was Secretary, he was one of the junior officers who briefed me every morning at 7:30 on intelligence. But he has done an extraordinary job in presenting in a very fair and objective way the need for the revisions to this legislation which are reflected in the pending bill before the Senate as submitted by the committee. I think the Senator has carefully delineated those portions which we resolved, as a committee, were essential and did not accept in full measure all his recommendations; am I not correct in that?

Mr. WARNER. Again, Mr. President, I have to tell you, I was learning at a very young age and taking on responsibility in that critical period of history. I learned as much from him, if not more, than he did from me. I have another question for my colleague. What consequences or risks are there if our private volunteer--I underline volunteer--participants by way of corporations are not given civil liability protection from the pending and ongoing lawsuits and perhaps others?

Mr. WARNER. Mr. President, I thank my colleague. He said the committee ``concluded.'' It concluded by the manifestation of a vote of 13 to 2, so that an overwhelming majority of the committee, bipartisan, made this decision.

Mr. WARNER. I think that is an important reference point. Further, I say to my colleague, the committee's liability provision in the matters pending before this Senate today extends only to civil-- I underline civil--liability protection for those providers that allegedly assisted with the TSP program. Isn't this already a compromise from what the Director of the National Intelligence had initially requested of the Congress?

Mr. WARNER. Mr. President, I thank my colleague. I think it is very important that we portray the risks that are associated with these endeavors taking place in the court system now. Again, I draw the attention of all colleagues to the thorough work done by this committee on which I am privileged to serve and the bipartisan manner in which we resolved these issues. A question to my colleague: We heard some Members advocate substitution--in other words, a substituted solution--rather than a civil liability protection. Perhaps the Senator can address exactly what that substitution is and how, in his judgment, this would not be a means by which to resolve this very serious problem.

Mr. WARNER. Mr. President, I thank my colleague. I would also add that there will be further chapters in the history of this country, and I cannot try to look that far into the future as to what those chapters may be when we, as a successor government to the one we now have in terms of our President, will be faced with another challenge and look to volunteers--volunteers--to solve this problem. This is going to be a landmark precedent for future Presidents as we address problems which could be assisted by the participation of the corporate world here in our United States. A further question of my colleague. We have also heard some Members say the Foreign Intelligence Surveillance Court should decide whether the providers acted in good faith. Wouldn't this duplicate the bipartisan work of the Intelligence Committee?

Mr. WARNER. Madam President, no objection.

Mr. WARNER. I would just ask if it would be possible--and I see my distinguished colleague on the floor seeking recognition--may I have but a few minutes to conclude my remarks here with my good friend and the ranking member of the committee? Madam President, last year, when the important legislation passed by the Senate Intelligence Committee came to the floor, I spoke about several elements in this bill. Specifically, I spoke about how the Intelligence Committee bill ensures that the intelligence gap that was closed by the Protect America Act in August remains sealed. I spoke about the important balance the Intelligence Committee bill strikes between protecting civil liberties and ensuring that our hard-working and dedicated intelligence professionals have the tools they need to protect this Nation--a point I cannot too strongly emphasize. I also highlighted one of the most important provisions of the bill: retroactive liability protection for carriers alleged to have assisted the Government with the terrorist surveillance program. I said in December that, based on the documents and testimony provided to our committee, I strongly believed the carriers that have participated in the program relied--I repeat, relied--upon our Government--that is, the executive branch of the Government of the United States--that their actions were legal and in the best interests of the security of America. Further, I stated that, in my opinion, these companies deserve and must be protected from costly and damaging litigation in our court system. During the Senate's Christmas recess, I had additional time to further study this issue, as I have day after day, and gather additional information. That time to reflect and study and to deepen my knowledge on this issue has only reinforced my view that the carrier liability protections in the Intelligence Committee's bill are not only necessary but vital for the protection of our future national security. One item in particular has played a key role in my thinking about this issue. It was a thoughtful opinion piece written by three gentlemen I know very well, former public servants, and I wish to say a few words about that, and then I will conclude my remarks. Three individuals stepped forward to give their perspectives on this critical issue. The first was Benjamin Civiletti, U.S. Attorney General under President Jimmy Carter; the second was Dick Thornburgh, U.S. Attorney General under President George Herbert Walker Bush; and thirdly, Judge William Webster, known very well by almost all of us here in the Chamber, former Director of the CIA and former Director of the Federal Bureau of Investigation. The article these fine public servants authored, titled ``Surveillance Sanity,'' appeared in the October 31, 2007, edition of the Wall Street Journal. Madam President, I ask unanimous consent to have printed in the Record a copy of that article following my remarks.

Mr. WARNER. I wish to share some of the thoughts in that article with my colleagues. First, regarding the Intelligence Committee's carefully crafted and limited liability protections, the three public servants said: We agree with the committee. Dragging phone companies through protracted litigation would not only be unfair, but it would deter other companies and private citizens from responding in terrorist emergencies whenever there may be uncertainty or legal risk. Our committee has heard testimony that without such protections, some companies believe they can no longer cooperate and assist our Government because they would risk hundreds of millions of dollars of their shareholders' money in protracted lawsuits. They have a fiduciary responsibility, those companies, to their shareholders. That is intrinsic in all of our corporate structures. Second, the boards of directors of these companies have a fundamental obligation to those shareholders. On this issue, the three public servants wrote: The government alone cannot protect us from the threats we face today. We must have the help of all of our citizens. There will be times when the lives of thousands of Americans will depend on whether corporations such as airlines and banks are willing to lend assistance. If we do not treat them fairly when they respond to assurances from the highest levels of the government that their help is legal and essential for saving lives, then we will be radically reducing our society's capacity to defend itself. Moreover, I believe that companies which assisted the Government will not be treated fairly by the provision being offered by my Judiciary Committee colleagues to substitute the Government in currently pending lawsuits. I strongly believe the substitution proposal is not an acceptable alternative to the Intelligence Committee's bill. Additionally, if lawsuits are allowed to proceed, companies will still be forced to participate and provide evidence. The continuing damage in terms of business reputation and stock valuation even if the Government ultimately prevails, will surely be extremely harmful to the companies. Further, the Government being substituted as the defendant in a trial opens up evidentiary problems regarding sources and methods which, if exposed, would hinder the ability of the intelligence community to intercept terrorist communications and those of our other enemies. Finally, the last point I would like to raise relates to the right of individuals to file suit. Let me be clear--individuals who believe that the Government violated their civil liberties can pursue legal action against the Government--the Intelligence Committee's bill does nothing to limit that legal recourse. This issue is underscored by the final quote I would like to share with you by Messrs. Civiletti, Thornburg, and Webster: Whether the government has acted properly is a different question from whether a private person has acted properly in responding to the government's call for help. From its earliest days, the common law recognized that when a public official calls on a citizen to help protect the community in an emergency, the person has a duty to help and should be immune from being hauled into court unless it was clear beyond doubt that the public official was acting illegally. Because a private person cannot have all the information necessary to assess the propriety of the government's actions, he must be able to rely on officials assurances about need and legality. Immunity is designed to avoid the burden of protracted litigation, because the prospect of such litigation itself is enough to deter citizens from providing critically needed assistance. Madam President--I agree with these distinguished gentlemen. Bottom line, companies who participate in this program do so voluntarily to help America preserve its freedom and security. And that security will ensure for the very safety--both individually and collectively--of its citizens. In closing, I would like to state that I have long supported the idea of ``an all-volunteer force'' for our military and I believe ``an all- volunteer force'' of citizens and businesses who do their part to protect our great Nation from harm is equally important. Without this retroactive liability provision, I believe companies will no longer voluntarily participate. This will result in a degradation of America's ability to protect its citizens. It is for these reasons that I urge my colleagues to support the Rockefeller-Bond substitute amendment to grant the men and women of the intelligence community the tools they need to protect our country. Exhibit 1 [From The Wall Street Journal, Oct. 31, 2007] Surveillance Sanity (By Benjamin Civiletti, Dick Thornburgh and William Webster) Following the terrorist attacks of Sept. 11, 2001, President Bush authorized the National Security Agency to target al Qaeda communications into and out of the country. Mr. Bush concluded that this was essential for protecting the country, that using the Foreign Intelligence Surveillance Act would not permit the necessary speed and agility, and that he had the constitutional power to authorize such surveillance without court orders to defend the country. Since the program became public in 2006, Congress has been asserting appropriate oversight. Few of those who learned the details of the program have criticized its necessity. Instead, critics argued that if the president found FISA inadequate, he should have gone to Congress and gotten the changes necessary to allow the program to proceed under court orders. That process is now underway. The administration has brought the program under FISA, and the Senate Intelligence Committee recently reported out a bill with a strong bipartisan majority of 13-2, that would make the changes to FISA needed for the program to continue. This bill is now being considered by the Senate Judiciary Committee. Public disclosure of the NSA program also brought a flood of class-action lawsuits seeking to impose massive liability on phone companies for allegedly answering the government's call for help. The Intelligence Committee has reviewed the program and has concluded that the companies deserve targeted protection from these suits. The protection would extend only to activities undertaken after 9/11 until the beginning of 2007, authorized by the president to defend the country from further terrorist attack, and pursuant to written assurances from the government that the activities were both authorized by the president and legal. We agree with the committee. Dragging phone companies through protracted litigation would not only be unfair, but it would deter other companies and private citizens from responding in terrorist emergencies whenever there may be uncertainty or legal risk. The government alone cannot protect us from the threats we face today. We must have the help of all our citizens. There will be times when the lives of thousands of Americans will depend on whether corporations such as airlines or banks are willing to lend assistance. If we do not treat companies fairly when they respond to assurances from the highest levels of the government that their help is legal and essential for saving lives, then we will be radically reducing our society's capacity to defend itself. This concern is particularly acute for our nation's telecommunications companies. America's front line of defense against terrorist attack is communications intelligence. When Americans put their loved ones on planes, send their children to school, or ride through tunnels and over bridges, they are counting on the ``early warning'' system of communications intelligence for their safety. Communications technology has become so complex that our country needs the voluntary cooperation of the companies. Without it, our intelligence efforts will be gravely damaged. Whether the government has acted properly is a different question from whether a private person has acted properly in responding to the government's call for help. From its earliest days, the common law recognized that when a public official calls on a citizen to help protect the community in an emergency, the person has a duty to help and should be immune from being hauled into court unless it was clear beyond doubt that the public official was acting illegally. Because a private person cannot have all the information necessary to assess the propriety of the government's actions, he must be able to rely on official assurances about need and legality. Immunity is designed to avoid the burden of protracted litigation, because the prospect of such litigation itself is enough to deter citizens from providing critically needed assistance. As the Intelligence Committee found, the companies clearly acted in ``good faith.'' The situation is one in which immunity has traditionally been applied, and thus protection from this litigation is justified. First, the circumstances clearly showed that there was a bona fide threat to ``national security.'' We had suffered the most devastating attacks in our history, and Congress had declared the attacks ``continue to pose an unusual and extraordinary threat'' to the country. It would have been entirely reasonable for the companies to credit government representations that the nation faced grave and immediate threat and that their help was needed to protect American lives. Second, the bill's protections only apply if assistance was given in response to the president's personal authorization, communicated in writing along with assurances of legality. That is more than is required by FISA, which contains a safe- harbor authorizing assistance based solely on a certification by the attorney general, his designee, or a host of more junior law enforcement officials that no warrant is required. Third, the ultimate legal issue--whether the president was acting within his constitutional powers--is not the kind of question a private party can definitively determine. The companies were not in a position to say that the government was definitely wrong. Prior to FISA's 1978 enactment, numerous federal courts took it for granted that the president has constitutional power to conduct warrantless surveillance to protect the nation's security. In 2002, the FISA Court of Review, while not dealing directly with the NSA program, stated that FISA could not limit the president's constitutional powers. Given this, it cannot be said that the companies acted in bad faith in relying on the government's assurances of legality. For hundreds of years our legal system has operated under the premise that, in a public emergency, we want private citizens to respond to the government's call for help unless the citizen knows for sure that the government is acting illegally. If Congress does not act now, it would be basically saying that private citizens should only help when they are absolutely certain that all the government's actions are legal. Given the threats we face in today's world, this would be a perilous policy.

Mr. WARNER. Madam President, I yield the floor at this time.

Mr. WARNER

Mr. WARNER. Mr. President, I yield 5 minutes to the distinguished Senator from Connecticut.

Mr. WARNER. Mr. President, I believe we are about ready to vote on this side. We are going to have our leader speak for a minute, and then we can proceed. I simply, once again, say to my distinguished colleague from Michigan, while we are waiting for the Republican leader, with due respect, this will send a very conflicting message. If the Senate acts upon this appropriations tonight favorably, as I anticipate it will, coupled with your message, it could be misconstrued. Therefore, I strongly urge that the Senate accept the McConnell-Lieberman amendment but reject the amendment of the distinguished Senator from Michigan.

Mr. WARNER. I move to lay that motion on the table. The motion to lay on the table was agreed to.

Mr. WARNER. I ask for the yeas and nays.

Mr. WARNER. Mr. President, if I could get the attention of the distinguished chairman, might it be advisable that we rotate sides? I will be happy to follow a colleague on your side for purposes of this debate.

Mr. WARNER

Mr. WARNER. Mr. President, there are others seeking to be recognized and I shall be brief. But I think of my good friend in many ways, not the least of which, we are two Senators who stood in the well in kilts with our knobby knees showing and voted--to the astonishment of all our colleagues. You have helped me through the years in many ways, particularly on the Defense bill. You have served on the committee. When that bill was dogged, disparaged, cast aside, you always were there to bring it back, sometimes six or seven times in the course of the spring, until we were able to pass it, always, always being guided by your heart and your concern for the men and women who wear the uniforms and their families. But I wish to speak of you in a very personal way. We had our differences in elections. Like Bob Bennett, I was on the Alan Simpson team. I remember sitting in your office discussing that and voting for Simpson. You won, but you never held it against me or Bob or others. That is the way you managed this institution. But I think back on my own career, insignificant as it is, and I reflect on the fact that I have been privileged to serve with 271 Senators in the 29 years that I have been privileged to serve. My dear friend Thad Cochran and I have that record together as we came to the Senate in the fall of 1968. What I didn't know about the Senate--and surprisingly, I had the opportunity as Secretary of the Navy to come here for 5 years and testify many times and to come and respond to the calls of Members who, for whatever reason, wanted to talk to the Secretary about their particular problems--I never realized how all-consuming this body would be in terms of it becomes your family, they are your friends, and those bonds continuously grow year after year. When one Member is celebrating exhilaration, accomplishments, be they on the floor of the Senate or be they in private life or whatever the case may be--winning an election, as Thad and I have done five consecutive times--you share those moments. But you also share the moments when a Member is faced with despair. They often say the fall may be painful, but the road back is doubly challenging. I have watched you in those situations, and the strength that you and your lovely wife exhibited has been instilled in me. I pray to God that I never face some of the challenges that faced you: the devastation brought to your State, your graceful stepdown from the leadership, and your comeback, your magnificent and courageous restoration of your career in full--I say to you, Senator--in full. You made a tough decision, as I have done, not to return to this body and to our dear friends, but you did it on solid ground, and all of us join in our hopes that in your next challenge in life, you will make a contribution to this country you love, to the State you love, and to the Senate you love. Thank you for your friendship.