Ron Wyden

Mr. WYDEN

Mr. WYDEN. Mr. President, I wish to commend the distinguished chairman of the committee and the distinguished vice chairman because they have worked with me many hours on this issue. It is an extraordinarily important issue as it relates to the rights of Americans in the digital age, and I appreciate the involvement the chairman and vice chairman have had with me on this matter. What this debate is all about, and I know it is very hard to follow the complicated legal language that is associated with this discussion, is the proposition that Americans ought to have the same rights overseas that they have inside the United States. Now, the chairman and the vice chairman have worked with me through the last few weeks to ensure that we can embed this basic proposition in this FISA legislation and do it in a way that is not going to have any unintended consequences or any impact on our national security. I have long felt, literally for decades, that the FISA law has represented the ultimate balance between America's need to fight terrorism ferociously and to protect the constitutional rights of our people, and it is a balance that should not be eliminated because an American leaves U.S. soil. It ought to always mean something to be an American, and that ought to apply even outside the United States. Now, under current law, before conducting surveillance on an American citizen within the United States, the Government must establish probable cause before a criminal court for law enforcement cases or before the FISA Court for intelligence cases. So what this means is the U.S. Government needs a court-approved warrant to deliberately tap the phone conversations of a person living in Medford, OR; or Kansas City, MO; or Arlington, VA; or anywhere else. This protection, however, is not extended to Americans who are outside the United States. So if the U.S. Government wants to deliberately tap the phone conversations of the same Americans on business in India or serving their country in Iraq, the Attorney General can personally approve the surveillance by making his own unilateral determination of probable cause. During the Senate Intelligence Committee's consideration of legislation that would revise FISA, I offered the amendment that has been discussed by the distinguished chairman and the vice chairman to require the Government to secure a warrant from the FISA Court before targeting an American overseas. This amendment was cosponsored by our colleagues, the Senator from Wisconsin, Mr. Feingold, and the Senator from Rhode Island, Mr. Whitehouse. It was, as the chairman of the committee has noted, approved on a bipartisan basis. It has largely been incorporated into the Senate Judiciary Committee approach as well. Since then the administration has raised concerns about this issue. There have been concerns raised by several others. And we have sought to address those through many hours of negotiations so that we can make sure in the digital age, when Americans travel so frequently, we are not seeing their rights go in the trash can when they travel outside U.S. soil. We have almost reached a final agreement on this important issue, but I wanted to take just a minute. I see the distinguished chairman on the Senate floor and the distinguished vice chairman. I would like to just outline very briefly for them what my remaining concern is because my hope is we can work this out. I would also like to say that throughout this day the Justice Department, as we have been looking at it, has been talking to our staffs as well. I think they have been very cooperative also. The issue that is outstanding, I would say to my colleagues, is the managers' amendment does not require the Government to specify what facilities it is targeting, even in situations where the Government has historically been required to do so. So one automatically thinks of a hypothetical kind of situation that goes something like this: Under current law, the Government has to specify, for example, that it is going to do surveillance on an apartment dweller on a military base overseas. That is something that has to be approved with specificity, and that is required under current law. What I am troubled about is the hypothetical possibility. That is what we are dealing with now, hypothetical possibilities. And if the language is not written carefully with respect to facilities--and my concern is that it has not yet been dealt with adequately--the Government could, in effect, do surveillance on that military base for all of the apartment dwellers in the building or conceivably all of the people on the military base at large. Now, my friend, the distinguished vice chairman of the committee, clearly does not want to see that happen, nor does the chairman of the full committee. So what I have been trying to do, and had some discussion with the Justice Department about, is to try to persuade the Justice Department to take the precise language they have found acceptable in title I and move it over to the title VII that we have all been working on in a cooperative kind of fashion. It deals with what is called the after acquisition issue, to again make sure we are able to stay on top of the serious threats our country faces but not at the same time overreach and sweep all kinds of individuals like, say, an apartment dweller on a military base oversees into a surveillance program. So I am going to continue, and I want to make this clear to the vice chairman who is on the Senate floor, and the chairman who has had to leave the floor for a few minutes, that I want to continue to work with them. This is an important issue. In the digital age, it makes no sense for Americans' rights and freedoms to be limited by physical geography. That is what we got bipartisan support for in the Intelligence Committee. Suffice it to say, there is a history of support for this kind of approach. During the initial consideration of the first FISA Act back in 1978, many Members of Congress argued for the inclusion of protections for Americans overseas. All of the committees that debated the bill noted the significance of the issue. But at that time there was a judgment made that it was best to deal with this matter by separate legislation. For example, the Senate Intelligence Committee in the 1978 report on FISA stated: Further legislation may be necessary to protect the rights of Americans abroad from the improper electronic surveillance by their Government. It seems to me, 30 years later, it is time to take action. So we are going to continue these discussions. I want to express my appreciation to the vice chairman of the Intelligence Committee and his staff. They have put many hours into this matter working with us and clearly have sought to make sure that we can modernize this particular part of the FISA statute, and do it without what all of us have said are the unintended consequences or potential impact on national security. I think we are there once we deal with this remaining issue. I think it would be very hard for any of us to explain how it is that current law has to specify what facilities are being targeted and then, now, in the name of the so-called reform approach, adopt something that hypothetically--again, I talk only hypothetically about it--might sweep some, for example, soldiers on a military base overseas into a surveillance program. I do not want that. The distinguished vice chairman of our committee, Senator Bond, does not want that. So we are going to keep working on this matter. I see my friend from Missouri has indicated his desire to speak. As always, I am anxious to hear his thoughts on it and to work with him. I ask unanimous consent to have a few, perhaps up to 10 additional minutes after the vice chairman has had a chance to address us.

Mr. WYDEN

Mr. WYDEN. Mr. President, I ask unanimous consent that Gregory Hinrichsen, a fellow in my office, be allowed to come on to the floor for my remarks.

Mr. WYDEN

Mr. WYDEN. Mr. President, I ask unanimous consent that the Committee on Commerce, Science, and Transportation be authorized to meet during the session of the Senate on Wednesday, December 19, 2007, at 10 a.m., in room 253 of the Russell Senate Office Building, for the purpose of conducting a hearing. The primary focus of the hearing will be on the Federal Motor Carrier Safety Administration's, FMCSA, interim final rule, IFR, governing truck driver HOS. This IFR is in response to a July 2007 U.S. Court of Appeals decision vacating key aspects of the FMCSA's 2005 HOS rule. The Subcommittee will receive testimony on the IFR and related truck driver fatigue and truck safety matters from the FMCSA, truck safety advocates and the motor carrier industry. Subcommittee Chairman Frank R. Lautenberg will preside.

Mr. WYDEN. Mr. President, I ask unanimous consent that the Senate Committee on the Judiciary be authorized to meet during the session of the Senate in order to conduct a hearing entitled ``Executive Nominations'' on Wednesday, December 19, 2007 at 10 a.m. in room SD-226 of the Dirksen Senate Office Building. Witness list Mark R. Filip, of Illinois, to be Deputy Attorney General, Department of Justice.

Mr. WYDEN. Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on Wednesday, December 19, 2007, at 11 a.m. hold a briefing on Kosovo.

Mr. WYDEN. Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on Wednesday, December 19, 2007, at 9:30 a.m. in order to hold a nomination hearing.

Mr. WYDEN

Mr. WYDEN. Mr. President, anytime I am home in Oregon or have a chance to travel around the country, when I hear citizens talk about Government, they zero in on one word above all else. That word is ``change.'' Americans want change in our foreign policy. Americans want change in our energy policy. And above all, Americans want change in our health care policy at home. So this afternoon I am going to spend just a few minutes talking about some of the most urgently needed changes in American health care, and then how the Congress can go about setting those changes in place. Above all else, Americans want changes in health care costs so as to hold down these staggering expenses. This country is going to spend $2.3 trillion this year on health care. There are 300 million of us. If you divide 300 million into $2.3 trillion, you could go out and hire a physician for every seven families in the United States. That is how staggering the health care costs are in this country. You could literally go out and hire a physician for every seven families in the United States, pay that doctor $200,000 for the year, and say: Doctor, your job for the year will be to take care of seven families. In fact, I know the Presiding Officer has a great interest in health care as well. Whenever I bring this up at a townhall meeting, and physicians are in the room, they usually say: Where do I go, Ron, to get my seven families? Because they think it sounds pretty good to change the American health care system so they can do what they were trained to do, which is, to be advocates for people, to stand up for their patients, to make sure they get the best shake for American health care. Certainly, employers want changes to hold down the costs of health care. Today, if you are opening a business in Coos Bay, OR, or Stowe, VT, you are competing in the global marketplace. You essentially spot your foreign competition something like 20 points the day you open your doors in Vermont or Oregon or anywhere else. That is because your premiums go up 13, 14, 15 percent a year, and your foreign competition benefits from national health insurance. So that is what these crushing costs mean for the business community. If you are lucky enough to have health insurance in our country--and because the costs are going up so high--you are literally one rate hike away from going without coverage. One of the reasons the costs hit people with insurance so hard is that today in America, if you have coverage, you also pick up the bills for those who don't have coverage. I am sure the distinguished Presiding Officer of the Senate hears the same thing I do at home. Somebody who has coverage, for example, is in a hospital and looks at the expenses and the bill and it says something like Tylenol, $60. A citizen comes to one of us at a townhall meeting and says to us: What do you mean Tylenol costs $60? I could have gone to CVS or to some other pharmacy and I could have gotten Tylenol for $20. Why did it cost me that much? The reason it costs that much for somebody who has insurance is there are a lot of people in the hospital who don't have coverage and they couldn't pay for their Tylenol, so the cost gets shifted over to the people who are insured. So first and foremost, when it comes to changes in health care, we need changes that rein in these staggering costs--costs that are going up far beyond what cost increases are elsewhere in the world. The second area that is so critical to change in American health care is lowering the administrative costs in American health care. We have higher administrative costs than any other country on Earth. Once again, you see it at home and in your State when physicians and others come to you. In my home State, in a typical doctor's office with a few physicians, there is one person who will spend the entire day on the phone essentially trying to pry out information from insurance companies as to what they will pay on one claim or another. These are clerks trying to get information about an insurance company matrix, trying to figure out what will be spent because this country still lacks a uniform billing system because there are so many differing systems of paperwork and charges. This country's staggering administrative costs are an area that desperately needs to be changed in American health care. Most other parts of the country have simplified their record-keeping and their administrative costs. They use electronic record systems. Today, for example, the typical doctor's office has less technology to hold down administrative costs than the corner grocery store. So second on my list of changes to American health care are steps that would be taken to slow and reverse the crushing increase in administrative costs, hassle for doctors, and needless time and heartache that go into administering American health care. The third area of change--something I know the Presiding Officer feels very strongly about--is moving health care to prevention and wellness rather than sick care. The fact of the matter is that in the United States we don't have health care at all. What we have is sick care. The Medicare Program shows this more clearly than anything else. Medicare Part A, for example, will pay huge checks for a senior citizen's hospital bills. The check goes from the insurance carrier to a hospital in Vermont or Oregon or anywhere else--no questions asked. Medicare Part B, on the other hand, the outpatient portion of Medicare, will pay virtually nothing for prevention--virtually nothing to keep people well, to keep them healthy, and to keep them from landing in the hospital and racking up all those huge hospital expenses under Part A. That is a bizarre way, in my view, to run the Medicare Program. In fact, the Medicare Program, which is so biased in favor of sick care rather than wellness and prevention, runs the biggest outpatient program in the country that offers no rewards for, for example, lowering your blood pressure, lowering your cholesterol, stopping smoking. The biggest outpatient program in the United States is Part B of Medicare. Available to more than 30 million older people in our country, it is the biggest outpatient program that offers no rewards for sensible prevention. We have to change this bias. We can look at the problem in this country of childhood obesity and the onset of type 2 diabetes. If we don't focus on prevention, wellness, and keeping our citizens healthy, we will see these continued increases in the costs of chronic care later in life, when heart disease, stroke, diabetes set in and our country racks up still additional health care costs because there has been no focus on prevention. Finally, it seems to me there has to be a much sharper focus on improving quality in American health care. When people talk about changing health care, they usually focus first on costs and that is why I brought it up initially. But they also want to make sure they get better quality care. Right now, with citizens reading reports, for example, from the Institute of Medicine--about thousands and thousands of needless deaths, hospital deaths, other deaths--it is obvious that steps need to be taken to improve the quality of our health care. Some of them are steps that certainly sound fairly simple: Better infection control in our health care facilities, making sure sensible steps are taken after an individual has a heart attack. Clearly, there needs to be more focus on early diagnosis of illness, which I think is part of a continuum of better quality care that starts with prevention and zeroes in on early diagnosis. But those are some of the areas I think need to be changed. The reality is the reason for all these changes and the reason why the country wants them is the health care system hasn't much kept up with the times. For more than 150 million people, the employer-based system is pretty much what we had in the 1940s. I talked earlier, for example, about the crushing toll it takes on employers, where they spot their foreign competition 18, 20 points the day they open their doors. But let's think about what it means for individuals. Right now, I can tell my colleagues a lot of individuals are very concerned, as they see their employer hit with these crushing costs and that every year their package will be skinnied down. There will be more copayments and fewer services, and a lot of them are very worried about whether their employer will be able to offer coverage at all. A lot of individuals come to me at townhall meetings and say: Ron, I am 56, 57. I am not sure my employer is going to be able to hold onto our coverage at work, and what will I do if I lose coverage at work and I am not yet eligible for Medicare. This, of course, would mean they might be without coverage between 57, 58, and 65. You can't be without health care coverage, as the Presiding Officer knows so well, for 7 or 8 years. So the individual who has coverage at work is worried about the trends, and in a lot of instances, that worker feels job-locked. They would like, for example, to look at another position, say another position that paid more, but they can't do that because they fear if they gave up their current position, they would go into the marketplace and they would be uninsurable. They might have an illness. They might have had a previous health problem. They know what goes on in much of the marketplace--that there is a lot of insurance company cherry- picking and that the insurance companies screen out people who have these health problems and try to send them over to Government programs. So a lot of our citizens feel job-locked and unable to move. It is why I think one of the most important changes that is needed in American health care is to modernize the employer-employee system. Because what we have today in 2007 isn't all that different from what we have had since 1947. My view is that will be one of the most important changes the country needs to look at in American health care. Finally, let me touch on the other side of the prevention coin in American health care. If we don't make changes and improve our system of health care prevention, what is surely going to happen is we will face increased costs for chronic health needs in America. Already, the evidence shows something like 6 percent of the Medicare population consumes 60 percent of the overall Medicare bill. These are the people who have problems with heart and stroke and diabetes--and the costs of chronic care go up and up and up. A modern health care system, one we ought to be looking at going to in the future, would put a better focus on chronic care management. So when you have an individual, for example, with several of these conditions, there is an effort among physicians and others to coordinate care. One of the best ways to do that is to have something which has come to be known as a health care home, where, in effect, an individual--a patient--can designate one person to coordinate their care when they have these multiple kinds of problems. But talk about the need for change: The Government does virtually nothing to promote the chronic care management which I have described and have had a chance to talk about with the Senator from Vermont. So we are going to have a chance to go home now for a few weeks and go to the townhall meetings and the Chamber of Commerce lunches and the service clubs. We are going to hear citizens talk about their hunger for change in a lot of areas: foreign policy, energy policy, education policy--a variety of areas. I think what they are going to talk about when it comes to addressing their concerns here at home is the need for change in health care policy in America. They are going to talk about what is going to be done to contain the costs, what is going to be done to reduce some of the mindless paperwork, how we can put more focus on prevention and wellness, make better use of health care technology, and offer sensible policies that reward the coordination of managing cases for individuals with chronic conditions. These are the key areas they talk about. It all comes down to a health care system that doesn't work very well for them, No. 1. The issue becomes how can it be that a country such as ours--the richest country on Earth, with all these wonderful doctors and hospitals--cannot figure out how to meet the health care needs of our people. I believe we know what needs to be done. I have tried to outline a number of these key areas. As the Senator from Vermont knows, I have offered legislation with Senator Bennett of Utah--we have 13 cosponsors on a bipartisan bill--that addresses these kinds of concerns. But now, when we are home and we have a chance to listen to folks, I think we will have a chance also to talk about real priorities for our country, the changes that are needed. We need to especially talk about the changes that are needed in American health care so this country can end the disgrace that we are the only Western industrialized Nation that hasn't been able to figure out how to get basic, essential health care for all our citizens. We are up to it. It is now a question of political will and our willingness to embrace change. I have appreciated the chance this afternoon to outline some of the most important changes that are needed. I yield the floor.

Mr. WYDEN

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

Mr. WYDEN

Mr. WYDEN. Mr. President, before my remarks, I ask unanimous consent that Matthew Solomon be granted floor privileges during consideration of the FISA bill. I make this request on behalf of Chairman Leahy.

Mr. WYDEN

Mr. WYDEN. Mr. President, I choose to yield the remainder of my time to the distinguished Senator from Connecticut.

Mr. WYDEN. Mr. President, how much time do I have remaining?

Mr. WYDEN. The Senator is right. And we have in the chair serving as Presiding Officer of our distinguished body the Senator from Virginia, a decorated veteran. My understanding is he does not have the legal right to see these documents prior to the vote; that they were only made available to members of the Intelligence Committee and perhaps several others in the leadership. I think that is wrong. I think every Member of this body ought to insist on their right to be able to go down to the Old Executive Office Building and read the documents I have read, which I believe offer an extraordinarily skimpy case for total retroactive immunity. I hope we will have a chance to discuss this issue further. I appreciate the Senator from Connecticut making the point that he has with respect to his seniority in the body, his membership on key committees, such as the Senate Foreign Relations Committee, and he is not provided the legal right to see these documents before he casts this vote. I wish to discuss briefly one other amendment which has come up during the course of the morning, and that is an amendment I offered in the Senate Intelligence Committee which won bipartisan support in the Intelligence Committee addressing the rights of Americans who travel overseas. I offered it with the distinguished Senator from Wisconsin, Mr. Feingold, and the distinguished Senator from Rhode Island, Mr. Whitehouse. It was approved when the Intelligence Committee voted on that matter on a bipartisan basis. Most of our citizens are probably not aware that the original Foreign Intelligence Surveillance Act only provided protections for Americans inside the United States and that it does not cover Americans who travel overseas. So if the Government wants to deliberately tap the phone calls of a businesswoman, for example in Roanoke, VA, or an armed services member in Pendleton, OR, the Government has to go to a judge, present evidence, and get a FISA warrant. But if that businesswoman or that serviceman is sent overseas, the Attorney General can personally approve the surveillance by making his own unilateral determination of probable cause. In my view, this formulation makes no sense at all. In the digital age, the rights and freedoms of individual Americans should not be dependent on physical geography. That is why I offered the amendment in the Intelligence Committee that would make it clear that Americans have the same rights when they travel overseas as they do inside the United States. Now, some have raised concerns that my amendment may have unintended consequences. I certainly don't want to see that, and so I have worked with Members of this body, particularly Senators Rockefeller and Bond, to address those concerns. We have made it clear that we are open to technical changes in the proposal so that there will not be the prospect of any unintended consequences, while at the same time protecting the rights of our citizens who travel overseas. Our staffs have been working for many weeks on a potential managers' amendment which would preserve the original intent of the provision, which is very straightforward, and that is to give Americans overseas the same legal protections they have in the United States to the maximum extent possible and to the maximum extent consistent with national security. We have made progress, Mr. President, on this issue, but we are not quite there yet. I have gotten varying reports as to what may constitute a managers' package with respect to this legislation, but I consider the matter of the travel rights of Americans so fundamental in the digital age, it would be my intent to object to any unanimous consent agreement that waters down these travel rights of law-abiding Americans during these crucial days. I continue to remain hopeful that, working closely with the distinguished chairman of our full committee, Senator Rockefeller, and the vice chairman, Senator Bond, who is not on the floor, we can reach an agreement. All sides are working in good faith, but without the proper language on this matter, which I do think is once again fundamental to striking that balance between fighting terrorism aggressively and protecting individual liberty, without this amendment I would have to object to any unanimous consent agreement in a managers' package which didn't address the amendment that won bipartisan support in the committee. I hope it will not come to that, and I want to make it clear again to the chairman of the full committee, Senator Rockefeller, and to the vice chairman that I intend to work very closely with them in the upcoming hours to see if we can work this out so I will not have to object to the managers' amendment. Mr. President, I yield the floor.

Mr. WYDEN. That is correct. That is absolutely correct.

Mr. WYDEN. That is my view, and I find particularly objectionable-- and the Senator from Connecticut has touched on it--you would automatically assume that every Member of this body--we know all of our colleagues; I trust all of them explicitly with respect to protecting our national security--you would think they would certainly have a right to see those documents before this vote is to be cast. That is not the case. In fact, the only reason members of the Intelligence Committee got to see them was because of the outstanding work of Chairman Rockefeller and Senator Bond, who battled for my right to see those documents.

Mr. WYDEN. Mr. President, as a member of the Senate Intelligence Committee, I am aware that down at the Old Executive Office Building there are large stacks of documents, including the Justice Department legal opinions, that relate to the warrantless wiretapping program and letters from our Government to the telecommunications companies. I have read these materials. But most Members of the Senate have been prohibited from being able to read these vital documents. I believe that a Senator who was allowed to read these materials would be astounded to see how flimsy the Government's case is on behalf of the warrantless wiretapping program. The administration has fought tooth and nail to keep almost every Member of this body, and the entire membership of the other body, from being able to read these materials. I believe every Senator who has not read these documents ought to insist on their right to be able to read them before the Senate casts this critical vote. Having read these documents, I can say, as one Member of the Senate Intelligence Committee, that nothing in any of these opinions has convinced me that the administration's warrantless wiretapping program was legal. Now that the existence of the program has been confirmed, I can see no national security reason to keep most Members of the Senate from being able to see these materials. As far as I can tell, these materials are being classified in order to protect the President's political security, not our national security. The Intelligence Committee has also reviewed written correspondence sent to certain telecommunications companies by the Government. I cannot get into the details of this correspondence, but I can say I am totally unconvinced, on the basis of having read these materials, that Congress should grant total immunity to the companies. For years, there have been a number of laws on the books, such as the Wiretap Act, the Electronic Communications Privacy Act, and, of course, the Foreign Intelligence Surveillance Act. Together, they make it very clear that participating in a warrantless wiretapping program is against Federal law. Many of my colleagues have argued that any companies that were asked to provide assistance after September 11 should be treated leniently since that was a period of national confusion and great fear. I think this argument personally has some merit, but the bill that was reported by the Intelligence Committee would not just grant immunity for 6 months or 1 year after September 11; it would grant immunity for actions taken up to 5 years after the attack. I think that is far too long, and I am going to briefly explain why. If a phone company was asked to participate in warrantless wiretapping in the weeks after September 11, it is understandable that executives might not have had the time to question assertions from the Government that the wiretapping was legal. But that doesn't give the executive a free pass to participate in warrantless wiretapping forever and forever. At some point over the following months and years, this phone company executive has an obligation to think about whether they are complying with the law, and as soon as they realize they have not been in compliance, they have an obligation to stop it. In the months and years following September 11, it should have been increasingly obvious to any phone company that was participating in the program that it just might not be following the law. For starters, in the week after September 11, Congress and the President got together to revise the Foreign Intelligence Surveillance Act, including the wiretapping provisions. But the Congress did not change the sections of the statute that state warrantless wiretapping is illegal. That, in my view, should have been a huge red flag to any phone company that was participating in this program. Next, in the summer of 2002, the Director of the NSA, General Hayden, appeared before the Intelligence Committee in open session and testified about the need to get warrants when someone was inside the United States. I am sure General Hayden would argue that he was parsing his words carefully, but at a minimum, it was clear at this point that most of the Congress and most of the American people believed warrantless wiretapping was illegal. The President has argued that the program was authorized through his Commander in Chief authority. But in the spring of 2004, the Supreme Court issued multiple rulings clearly rejecting this idea, and the President cannot do whatever he chooses to do. These rulings also have been giant red flags for any phone company engaged in warrantless wiretapping. Finally, as the Intelligence Committee's recent report noted, most of the letters requesting assistance stated that the Attorney General believed the program was legal. But, as our report points out, one of the letters did not even say the Attorney General had approved. I have read this letter, and I believe that once again it should have set off loud alarm bells in the ears of anybody who received it. In my view, as the years rolled by, it became increasingly unreasonable for any phone company to accept the Government's claim that warrantless wiretapping was legal. By 2004, at the very latest, any companies involved in the program should have recognized that the President was asking them to do things that seemed to be against the law. The former CEO of Quest has said publicly that he refused requests to participate in warrantless surveillance because he believed it violated privacy statutes. I cannot comment on the accuracy of this claim, but I hope our colleagues will stop and think about its implications. I also encourage my colleagues to insist on their right to see the communications that were sent to the telecommunications companies. My own view is, when they read these letters, if they are given a chance to read them, these letters seriously undermine the case for blanket retroactive immunity. The legislation that passed the Intelligence Committee would grant immunity long past the point at which it was reasonable for the phone companies to believe the Bush administration. It would even grant immunity stretching past the point at which the program became public. By the beginning of 2006, the program was public and all of the legal arguments for and against warrantless wiretapping were subject to open debate. Clearly, any companies that participated in this program in 2006 did so with full knowledge of the possible consequences. I cannot see any reason at all why retroactive immunity should cover this time period. When the Senate Intelligence Committee voted to grant total retroactive immunity, I voted no because I believed it was necessary to take more time to study the relevant legal opinion as well as the letters that were sent to the communications companies. I have long felt that it is possible to fight terrorism ferociously and still address the civil liberties needs of our citizens. Now that I have studied these documents, I am convinced that granting 6 years of total retroactive immunity is not justified and it is not justified in the name of striking that crucial balance between fighting terrorism aggressively and protecting the individual liberties of our citizens. I very much want to support this essential legislation. Chairman Rockefeller is here. He has done very good work, along with the distinguished vice chairman, Senator Bond, on what I think is the central issue of this debate, and that is modernizing the FISA law to make sure that now it is possible to apprehend the communications of dangerous individuals overseas who are foreigners. The administration came to our committee and made a very reasonable case that the statute has not kept up with the times. Under the leadership of Chairman Rockefeller and the vice chairman, Senator Bond, we went to work, and we went to work in a bipartisan way to address that concern. That was the original concern of the Bush administration, that the statute had not kept up with the times and it wasn't possible to get the communications of foreigners overseas. Under the leadership of Chairman Rockefeller and Vice Chairman Bond, that issue was dealt with, and it was dealt with to the satisfaction of the Bush administration. But the Bush administration wouldn't take yes for an answer. After the distinguished chairman of the committee and the vice chairman and all of us on a bipartisan basis went to work to try to address the reasonable concern of the Bush administration--that the statute had not kept up with the times--that wasn't good enough for the Bush administration. So that is when we were presented with the proposition that we had to have total retroactive immunity for the phone companies. Years after the administration had said how legal the program was, after we dealt with the administration's original concern about the surveillance statute, they came in and asked for something else--this total grant of immunity. In fact, most members of the Intelligence Committee would not even have gotten to see the documents I had seen had it not been for the fact that Chairman Rockefeller and Vice Chairman Bond insisted on our right to do so. This is an issue of enormous importance. I am very glad our colleagues have come to the floor to take the time to go through it. I suggest that every Member of the Senate who has not had the right to see those documents at the Old Executive Office Building ought to insist on their right to see those documents before they cast this vote. I think they will be flabbergasted at how flimsy the legal analysis is to justify this program. Mr. President, I see my colleague, the distinguished Senator from Connecticut, on his feet. If I might, I would like to make one additional point, and then I will be happy to yield to my friend.

Mr. WYDEN

Mr. WYDEN. I withdraw my reservation.

Mr. WYDEN. Mr. President, reserving the right to object, and it is not my intention to object, we have been working closely with the chairman's staff and with the ranking minority member to ensure that the bipartisan ban on illegal logging would be included. I have not been informed. Has the ban on illegal logging been included?

Mr. WYDEN. Mr. President, I want to say a few words about an amendment on illegal logging that I sponsored. This amendment is based on S. 1930, the Combat Illegal Logging Act of 2007, which I introduced along with Senator Alexander and 23 bipartisan colleagues. First, however, I want to thank Senator Harkin, Senator Chambliss, and their staffs for working with me and my staff, to include this amendment in the farm bill. I am very pleased that this amendment has been included in the Senate farm bill and I look forward to working with the House to make this important legislation law. This legislation would strike a critical blow to illegal logging by extending the enforcement capacity of the Lacey Act to include illegally harvested timber. Illegal logging destroys ecosystems, harms often poor and rural communities, forces American businesses and workers to compete against unfairly low-cost forest products made from illegally sourced fiber, and contributes to carbon emissions. The Combat Illegal Logging Act changes the incentives that drive trade in illegal timber. This legislation will raise the risks for illegal trade without harming legal trade and will be an important step toward leveling a playing field currently stacked against the U.S. forest products industry and importers and retailers committed to trading in legal wood products. Furthermore, it will also bring the power of the U.S. market to bear on fighting the illegal logging problem and will reinforce work being done with U.S. tax dollars to improve governance in forest-rich developing countries. My amendment enjoys the support of a very broad coalition that includes members of the U.S. forest products industry, conservation community and organized labor, and has already received bipartisan support from many of our colleagues and I am very pleased that it was included in the farm bill with wide support. S. 1930 has 23 bipartisan cosponsors, many of which joined me in sponsoring this bill as an amendment to the farm bill. These include Senators Alexander, Bingaman, Kerry, Snowe, Feingold, Sununu, Baucus, Dodd, Stabenow, Biden, Murray, Cantwell, Salazar, and Gregg. This bill is the culmination of hundreds of hours of work by stakeholders that might not naturally be seen as allies. The principal negotiators of the compromise--the American Forest & Paper Association, the Hardwood Federation, and the Environmental Investigation Agency-- deserve a tremendous amount of credit for sticking with this and finding a solution that everyone could support. And as the bill has evolved we have picked up more and more supporters. Organizations endorsing this bill include: American Forest & Paper Association, American Home Furnishings Alliance, Center for International Environmental Law, Conservation International, Defenders of Wildlife, Dogwood Alliance, Environmental Investigation Agency, ForestEthics, Friends of the Earth, Global Witness, Greenpeace, Hardwood Federation, International Association of Machinists and Aerospace Workers, International Brotherhood of Carpenters and Joiners of America, International Brotherhood of Teamsters, International Wood Products Association, Lowe's Home Improvement, National Association of Home Builders, National Lumber and Building Material Dealers Association, National Marine Manufacturers Association, National Wildlife Federation, Natural Resources Defense Council, Rainforest Action Network, Rainforest Alliance, Sierra Club, Society of American Foresters, Sustainable Furniture Council, The Nature Conservancy, Tropical Forest Trust, United Steelworkers, Wildlife Conservation Society, and the World Wildlife Fund. I again want to thank Senator Harkin, Senator Chambliss and their staffs for working with me and my staff to include my amendment in this farm bill. This will be a huge victory in the fight against illegal logging.

Mr. WYDEN

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

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

Mr. WYDEN. Madam President, for nearly 30 years, the Foreign Intelligence Surveillance Act, FISA, as it has come to be known, has represented the ultimate balance between our country's need to fight terrorism ferociously and to protect the constitutional rights of the American people. I intend to outline several of the key issues in this debate this afternoon. First, though, I want to say a word about the process which the distinguished Senate majority leader has just touched on. I was one of two in the Senate Intelligence Committee to oppose the Intelligence Committee's version of the legislation. I am strongly opposed to granting telecommunications companies total retroactive immunity when they have been accused of wrongdoing in the President's warrantless wiretapping program. The Intelligence Committee legislation includes such a grant of immunity, and it was the major reason I opposed the legislation. I do, however, respect Senator Reid's decision to hold the debate on this legislation under the regular Senate rules. Certainly, the distinguished majority leader has been under a lot of pressure from all sides to change the rules that in one way might favor one side or the other, but I think the majority leader has made the right decision by insisting that this debate go by the book. I have had the chance now to work with the distinguished majority leader for more than a quarter century. I know how much respect he has for the Senate and for this institution. He firmly believes in the committee process. He firmly believes in the Senate's rules and traditions, and he worked to carry those beliefs out as both the minority whip and the minority leader. So we will have a chance, as Senator Reid noted, to try to work a compromise on several of these key issues. I have said on a number of occasions, it may well be appropriate that the phone companies deserve some measure of protection with respect to their role in this surveillance program. But at a time when there are scores of lawsuits, the idea of complete and retroactive immunity seems to me to be over the line. It would be my intention, if we cannot reach a compromise on this issue--and it is my hope we will--it would be my intention, once again, to oppose legislation that grants total and complete immunity for the companies. Now, when the Senate Intelligence Committee picked up on its work this fall, coming back after the recess period, once again, we had a chance to meet with the director of the intelligence community, Mr. McConnell. As usual, he laid out a thoughtful case on a key issue, and that is that in some respects the Foreign Intelligence Surveillance Act has not kept up with the times. Clearly, there are threats overseas, when one foreigner communicates with another foreigner, where it is important that our intelligence officials are in a position to protect the interests of the American people and run surveillance with respect to those conversations. I and others said to the administration repeatedly that we would be supportive of that effort, and we would be supportive of that effort even when on an incidental basis it might pick up the conversations of innocent Americans. It was an effort to try to reach common ground with the administration and, in particular, to acknowledge that Admiral McConnell had a very valid point. But, unfortunately, the administration would not take yes for an answer. I and others said--Chairman Rockefeller, Senator Bond. I have had the chance to work closely with both of them. Both of them have been supportive of a number of initiatives I have felt strongly about with respect to accountability, holding the intelligence community to its word with respect to disclosure, declassification. I have the view that when Chairman Rockefeller and Senator Bond have a chance to work with a number of us on the committee, we can find common ground on a lot of these key issues. We can find common ground on the issue that the administration said for months and months was their principal concern; and that was to be able to pick up on the conversations of individuals overseas who represented a real threat to the security and well-being of the American people. But, as I indicated, that was not enough for the administration. They would not accept yes for an answer. At that point, they then began to push very hard for this idea of complete and retroactive immunity for the telecommunications companies. This came, of course, after years and years of the administration saying this program was lawful. I have had some difficulty squaring the fact that the administration said for so long--for literally years--that the program was lawful and now, in the face of all these lawsuits, despite the assertion that the program was so lawful, there should be this blanket grant of immunity. So that alone raised concerns on my part. I decided to dig even more deeply into this issue. There are a number of Department of Justice legal opinions that relate to this program. The President has refused to make these opinions public or even share them with most Members of Congress. Our committee has reviewed the Department of Justice legal opinions related to the President's warrantless wiretapping program, and I have read these opinions myself. In my judgment, the legal reasoning in these opinions is shaky at best, and in some areas it is exceptionally weak. I think most Americans would be surprised and dismayed to learn that their President had ordered the NSA to conduct this program based on such flimsy legal justification. Nothing in any of these opinions has convinced me that the President's warrantless wiretapping program was legal. Now that the existence of the warrantless wiretapping program has been confirmed, I see no national security reason to classify most of these opinions. As far as I can tell, these opinions are being kept classified in order to protect the President's political security, not our national security. Our committee has also reviewed written correspondence sent to certain telecommunications companies by the Government, and I have read this correspondence as well. I cannot reveal the details of this correspondence, but I can say that I remain unconvinced that the Congress should grant total immunity to the companies. For years, there have been a number of laws on the books, such as the Wiretap Act, the Electronic Communications Privacy Act, and, of course, the Foreign Intelligence Surveillance Act, that together make it very clear that participating in a warrantless wiretapping program is against the law. Now, a number of our colleagues have argued that any companies that were asked to provide assistance after September 11 should be granted leniency since they acted during a time of national panic and understandable confusion. I think this argument has some merit, but the bill that was reported by our committee would not just grant immunity for 6 months or a year after September 11, it would grant immunity for actions taken up to 5 years after our country was attacked. I think that is far too long, and I will explain why. If a phone company executive was asked to participate in warrantless wiretapping in the weeks after September 11, it is understandable that he or she might not take the time to question assertions from the Government that the wiretapping was legal, but this should not give a free pass to participate in warrantless wiretapping forever. At some point over the following months and years, this phone company executive has an obligation to think about whether they are complying with the law, and as soon as you realize that you are breaking the law, you have an obligation to stop. In the months and years following September 11, it should have been increasingly obvious to any phone company that was participating in this program that it might not be following the law. For starters, in the weeks after September 11, Congress and the President got together to review the Foreign Intelligence Surveillance Act, including the wiretapping provisions. But Congress did not change the sections of the Foreign Intelligence Surveillance Act that state warrantless wiretapping is illegal. This should have been a giant red flag to any phone company that participated in the program. Next, in the summer of 2002, the Director of the NSA, General Hayden, appeared before our committee in open session and testified about the need to get warrants when someone was inside the United States. I am sure General Hayden would argue he was parsing his words carefully, but at a minimum it was clear, at this point, most of the Congress, and certainly the American people, believes warrantless wiretapping was illegal. The President has argued he authorized this program under his authority as Commander in Chief, but in the spring of 2004, the Supreme Court issued multiple rulings clearly rejecting the idea that the President can do whatever he wishes because the country is at war. These rulings should have also been a giant red flag for any phone company engaged in warrantless wiretapping. Finally, as the Intelligence Committee's recent report noted, most of the letters requesting assistance stated the Attorney General believed the program was legal, but as our report points out, one of the letters did not even say the Attorney General had approved. I have read this letter, and I believe it should have set off loud alarm bells in the ears of anyone who received it. In my view, as the years rolled by, it became increasingly unreasonable for any phone company to accept the Government's claim that warrantless wiretapping was legal. By 2004, at the very latest, any companies involved in the program should have recognized the President was asking them to do things that appeared to be against the law. The former CEO of Qwest has said publicly he refused requests to participate in warrantless surveillance because he believed it violated privacy laws. I cannot comment on the accuracy of this claim, but I encourage my colleagues to stop and think about its implications. I also encourage my colleagues to go read the letters that were sent to telecommunications companies. I think these letters seriously undermine the case for blanket retroactive immunity. The bill that passed the Intelligence Committee would grant immunity long past the point at which it was reasonable for phone companies to believe the President's assertions. It would even grant immunity stretching past the point at which the program became public. By the beginning of 2006, the program was public and all the legal arguments for and against warrantless wiretapping were subject to open debate. Clearly, any companies that participated in this program in 2006 did so with the full knowledge of the possible consequences. I see no reason at all why retroactive immunity should cover this time period. When the Senate Intelligence Committee voted to grant total retroactive immunity, I voted no because I thought it was necessary to take more time to study the relevant legal opinions as well as the letters that were sent to the communications companies. Now that I have had a chance to study these documents, I am convinced that granting 6 years of total retroactive immunity is not warranted. I would very much like to support this important legislation because certainly there are many good provisions and they have been put together under the work of Chairman Rockefeller and Senator Bond. It is my hope, as Senator Reid noted earlier, we will be able to find a compromise with respect to this issue. As I have said, it may well be clear at some point down the road that the phone companies deserve some measure of protection. We certainly want law-abiding citizens and companies to be supportive of our country in times of danger, and that is why I have made the point that if we were talking about a relatively short period after 9/11, it would be one thing, but it is quite another when you are talking about year after year after year, when there were red warning flags going up. So I look forward to working with Chairman Rockefeller and Senator Bond, both of whom have great expertise in this field and have always been very fair, and I hope we can find a way to address the question of the communications companies in a fair way. I would also like to say, before I wrap up--I know it is late in the day--a quick word about an amendment I offered in the committee that has been included in both versions of the legislation that the Senate Intelligence Committee wrote and that was written in the Judiciary Committee. Many Americans may not realize the original FISA law only provided protections for our people inside the United States and it does not cover Americans who travel overseas. If the Government wants to deliberately tap the phone calls of a businesswoman in Minneapolis, MN, or an armed services member in Roseburg, OR, the Government has to go to a judge and get a warrant. But if that Minnesota businesswoman or Oregon serviceman is sent overseas, the Attorney General can personally approve a surveillance by making his own unilateral determination of probable cause. It is my view that in the digital age, it makes no sense for Americans' rights and freedoms to be limited by physical geography. So when the Intelligence Committee was writing its legislation, I offered an amendment that would require the Government to get a warrant before deliberately surveilling Americans who happen to be outside the country. That amendment establishing these ``rights that travel,'' so to speak, was cosponsored by Senators Feingold and Whitehouse, and it was approved in the Senate Intelligence Committee on a bipartisan vote. The White House, regrettably, called this amendment troublesome, and I will only say I am prepared to work with colleagues on this issue. Just as I indicated I will be working with our Vice Chairman, Senator Bond, on the issue of telecommunications immunity, I am prepared to work with him and the chairman of the committee, Senator Rockefeller, on my amendment to make sure there are no unintended consequences with respect to the amendment I authored that is in the Intelligence Committee legislation and that is also in the Judiciary Committee print. I am not prepared to agree that Americans who step outside the country should have fewer rights than they do here at home. I am going to fight for that amendment that ensures Americans in the digital age have their individual liberties, have their constitutional rights wherever they travel, and I am going to fight for it even if the administration continues to oppose it. I yield the floor, and I note the absence of a quorum.

Mr. WYDEN

Mr. WYDEN. Mr. President, I rise to discuss the amendment that Senator Harkin and I offered to make some modifications to the bioenergy crop transition program in the committee bill. First, however, I want to thank the Republican manager of the bill, Senator Chambliss, and his staff for working with me and my staff, and with Senator Harkin and his staff to address this issue. As I said the other evening, we are importing $1 billion worth of oil a day from other countries. Bioenergy crops provide a real opportunity to spend that money here at home and help our farmers and rural communities in the process. The bill that was reported by the Agriculture Committee proposed a program to help make this a reality by making payments to farmers to transition to these new energy crops. This was a good idea, but Senator Harkin and I were concerned that the program would lead to unintended consequences. We have now reached agreement on a managers' amendment that goes a very long way toward addressing our concerns. The agreement that we have reached improves the program in ways that will protect the environment and make it a more cost-effective program. The program will now include eligibility criteria for bioenergy crops to ensure that crops that are invasive species or could become invasive species are not eligible for the program. The program will now ensure that only lands that have already been farmed are eligible and that we are not promoting the conversion of native grasslands or forests to production of bioenergy crops. The program will now have a formal application and selection process so that we can be sure that the limited amount of funds available is spent in the most productive way. In deciding how these transition assistance payments are made, the Secretary of Agriculture will now have to consider the likelihood that the proposed establishment of the crop will, in fact, be viable in the proposed location. The Secretary will also need to consider the impact that the proposed bioenergy crop, and the process of turning it into fuel or energy, will have on wildlife, air, soil, and water quality and availability. And the Secretary will have to consider the potential for economic benefits to farmers and ranchers and impacts on their communities. We have also added planning grants to help farmers and ranchers make the decision to grow these new bioenergy crops and to assemble enough acreage that can support the development of bioenergy facilities to use them. Finally, we have added an additional requirement that participants in the program agree to implement a plan to protect land, water, soil and wildlife. I think these are real improvements in the bill. I again want to thank Senator Chambliss and his staff for working with us to make this program that truly will help move us toward a new energy future that will benefit our farmers, our rural communities, and the environment.

Mr. WYDEN

Mr. WYDEN. Mr. President, I am going to wrap up very briefly, and I know the Senator from Alabama was waiting, but the Senator from North Dakota wanted to do a very brief unanimous consent request, and I think that is acceptable to all Senators. I thank the Senator from Iowa for his assistance. What the Senator from Iowa essentially described, by way of bringing together people such as wheat growers and corn growers and conservation groups and the Wildlife Federation, the League of Conservation Voters--this is the future of modern agriculture: bringing all these folks together so we can take steps that will ensure that farmers grow their incomes. We want farmers to prosper on the land. We want to make sure their kids have a future in agriculture. To do it, we are going to have to adopt, as the Senator from Iowa has pointed out, an approach that encourages more sustainable agriculture. We think this is a winner for farmers' income. We think this is good for the environment. We think it is going to promote conservation. The Senator from Georgia has left the Senate floor, but it is my intent, with the Senator from Iowa, to work closely today and over the next day or so to make an agreement that will be acceptable all around. I think we are capable of doing it. I thank the Senator from Iowa, once again, for his support and that of his staff on some other issues as well--the illegal logging question, where the chairman has been so helpful. I yield the floor. Modification to Amendment No. 3695

Mr. WYDEN. I thank the chairman for all his assistance in this. We have not put it in the Record, so if you would do that, that would be very helpful.

Mr. WYDEN. Mr. President, it is my intention to be brief. I am offering this amendment with the distinguished chairman of the Agriculture Committee, Senator Harkin, and I have had a chance to visit with the distinguished Senator from Georgia, Mr. Chambliss. It is our intention to work very closely with Senator Chambliss in hopes that we can work out the amendment I am going to offer now. This amendment is an important one because it gives us a chance to promote the use of biofuels to reduce our Nation's dependence on foreign oil. We have worked hard to try to build a broad coalition of organizations, ranging from the National Association of Wheat Growers to the League of Conservation Voters, in an attempt to ensure this proposal would have broad support in the Senate. From an oil standpoint, I think we all understand the value of promoting biofuels. Our country now imports roughly $1 billion a day of oil. The fact is--and Senator Chambliss and I serve on the Intelligence Committee--I have come to believe our dependence on foreign oil is a national security issue. When you pull up at a gas pump in this country, whether it is New Jersey or Oregon or Alabama, you, in effect, pay a terror tax. A portion of what you pay at the gas pump in our States, in effect, eventually finds its way to a government in the Middle East, such as Saudi Arabia, which consistently ends up, through charitable groups and others, back to terrorist organizations that want to kill patriotic Americans. So our dependence on foreign oil has very clear consequences, and it is important for wheat growers and environmentalists and others to come together, as Senator Harkin and I have sought to do in our amendment with respect to biofuels. It is important as a national security issue, and it is important from an environmental standpoint. In my view, our proposals can reduce the amount of CO2 and other greenhouse gases that are being released into the atmosphere and contributing to global warming. Our amendment will provide an opportunity for new sources of income for our farmers and our communities. What Senator Harkin and I and the wheat growers and the environmental folks have sought to do is to make sure we can get these economic benefits for our farmers in a way that will ensure we protect the land and water and air for the longer term. The amendment Senator Harkin and I offer is built on four key principles: We want to promote growing biofuels stocks with sustainable agricultural practices, we want to protect native ecosystems, we want to protect biodiversity, and we want to encourage this biofuels production on a local basis so as to promote local economies. That means assembling enough farmers, growing enough feedstocks, and being in a position to fund a new bioenergy fuel or conversion facility. We give a boost to that effort with some small planning grants in order to help those farmers get off the ground. In addition, we think our proposed amendment is going to set realistic kinds of conservation objectives, again to promote soil and wetlands, avoid the untouched native grasslands and forests, and warrant the investment our country should be making in this exciting area. At the end of the day--and then I will yield to my friend, the distinguished chairman of the committee--we think bioenergy production can be done in a way that protects threatened ecosystems. The two are not mutually exclusive. It is not a question of bioenergy production or protecting our treasured lands and air and water. We can do both, and that is what the distinguished Senator from Iowa, the chairman, and I have sought to do. I am really pleased--I think the chairman may not have been on the floor--that we have the National Association of Wheat Growers in alliance with the League of Conservation Voters. It doesn't happen every day. I had a chance to visit with the distinguished Senator from Georgia, Mr. Chambliss, and what I was trying to do was to talk about the fact that this is an exciting coalition that adds a lot of energy and passion for the future to this bill. Mr. President, I wish to yield at this time to my friend, the distinguished chairman of the committee. It is our intent to work with the Senator from Georgia in hopes that we can all work this out. We had a good conversation before we got on the floor, and I thank the Senator from Iowa for all his assistance.