Sheldon Whitehouse

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Mr. President, today's debate goes to the heart of what our country is and what we wish it to be, by asking this: Will the United States of America condone torture? Is there, at America's heart, a heart of darkness? This authorization bill for America's intelligence community offers us the opportunity to answer that question decisively. It contains provisions for which I have fought from my initial amendment in committee, and which I am proud to support today, that would prohibit members of the intelligence community from using interrogation techniques beyond those authorized in the Army Field Manual. By adopting this amendment, the two Intelligence Committees, Congress's experts on these matters, have sent a clear signal to America and to the world that in this country the rule of law is our strongest bulwark against those who would do us harm. I hope that today the Senate will have the confidence in our values to reaffirm that signal and pass this legislation with the Army Field Manual provision included. Over the past several months, the American people have become all too familiar with the issue of torture. I want to discuss one technique in particular today, waterboarding, or water torture, or the water cure, which dates back to the Spanish Inquisition of the 14th century. Waterboarding was a favorite of torturers, because its terrible effects could be generated without the visible damage accompanying the rack, the screw, the iron, the whip, or the gouge. It could be done over and over. In the 20th century, waterboarding was done in the Philippines, where colonizers wielded it against indigenous peoples. It has been used in Sri Lanka, in Tunisia, by the Khmer Rouge in Cambodia--we are in the tradition of Pol Pot--by the French in Algeria, by the Japanese in World War II, and by military dictatorships in Latin America. The technique ordinarily involves strapping a captive in a reclining position, heels above head, putting a cloth over his face and pouring water over the cloth to create the feeling of suffocation and drowning. It leaves no marks on the body, but it causes extreme physical and psychological suffering. A French journalist, Henri Alleg, was subjected to this method of interrogation during the struggle for Algerian independence. He wrote in his 1958 book ``The Question'': I tried, by contracting my throat, to take in as little water as possible and to resist suffocation by keeping air in my lungs for as long as I could. But I couldn't hold on for more than a few moments. I had the impression of drowning, and a terrible agony, that of death itself, took possession of me. Waterboarding is associated with criminal, tyrant, and repressive regimes, with rulers who sought from their captives not information but propaganda, meant for broadcast to friends or enemies whether true or false. Regimes that employed the technique of waterboarding generally did not do so to obtain information; rather, to obtain compliance. But no matter the purpose or the reason, its use was and is indefensible. Water torture was not unknown to Americans. A 1953 article in the New York Times quotes LTC William Harrison of the U.S. Air Force, who said he was ``tortured with the `water treatment' by Communist North Koreans.'' In testimony before a U.S. military tribunal, CAPT Chase Jay Nielsen described being waterboarded by his Japanese captors following the 1942 Doolittle raid by U.S. aviators. From all this, America's military knew there was a chance our servicemen and servicewomen would be subjected to water torture. The Defense Department established the SERE program--survive, evade, resist, and escape--to train select military personnel who are at high risk of capture by enemy forces or isolation within enemy territory. The program has also subjected certain service personnel to extreme interrogation techniques, including waterboarding, in an effort to prepare them for the worst--the possibility of capture and torture at the hands of a depraved or tyrannical enemy. According to Malcolm Nance, a former master instructor and chief of training, at the U.S. Navy SERE school in San Diego: [O]ur training was designed to show how an evil totalitarian enemy would use torture at the slightest whim. Those who have experienced this technique, even at the hands of their own brothers in arms, are unequivocal about its effect. Former Deputy Secretary of State Richard Armitage, who underwent waterboarding during SERE training, said this: As a human being, fear and helplessness are pretty overwhelming. . . . this is not a discussion that Americans should even be having. It is torture. Our colleague in this body, Senator John McCain, has said the same. Yet it was to this relic of the dungeons of the inquisition, of the Cambodian killing fields, and of the huntas of the Southern Hemisphere that the Bush administration turned for guidance. I will speak later about how our Department of Justice came to approve this. But for now, we know that last week, in a stunning public admission, the CIA Director General, Michael Hayden, admitted the United States waterboarded three detainees following the September 11 attacks. The virus of waterboarding had traveled from tyrant regimes, through the SERE program, and infected America's body politic. Retired BG David Irvin, of the U.S. Army Reserve, a former intelligence officer and instructor in interrogation, and Joe Navarro, interrogator with the FBI, recently wrote: [T]here is considerable evidence that the CIA had to scramble after 9/11 to develop an interrogation program and turned to individuals with no professional experience in the field. . . . Given the crisis atmosphere of the day, it is all too easy to believe the comment of an intelligence insider who said of the secret program to detain and interrogate al Qaeda suspects that ``quality control went out the window.'' Don't let us jump out the window after it. America's military is expressly prohibited from using torture because intelligence experts in our Armed Forces know torture is an ineffective method of obtaining actionable intelligence. Again, I will speak later about the false assertion that this program was designed for 18-year- old novices. Some of the most sophisticated intelligence interrogations are done by our military after intense training. Our military adheres to the Army Field Manual on Human Intelligence Collector Operations. At a hearing before the Senate Select Committee on Intelligence, on which I serve, I asked COL Steven Kleinman, a 22-year veteran of interrogations, a senior intelligence officer in the U.S. Air Force Reserves, and a veteran interrogator with plenty of experience overseas in the Middle East, about his experience conducting interrogations using the Army Field Manual. He said: I am not at all limited by the Army Field Manual in terms of what I need to do to generate useful information. . . . I've never felt any necessity or operational requirement to bring physical, psychological or emotional pressure on a source to win their cooperation. A significant number of retired military leaders have written to the chairman and vice chairman of the Intelligence Committee saying: interrogation methods authorized by the field manual have proven effective in eliciting vital intelligence from dangerous enemy prisoners. . . . And the principles reflected in the Field Manual are values that no U.S. agency should violate. And GEN David Petraeus, commander of U.S. forces serving in Iraq, reiterated this point when he wrote last year to every soldier serving in the Iraq theater: Some may argue that we would be more effective if we sanctioned torture or other expedient methods to obtain information from the enemy. They would be wrong. Beyond the basic fact that such actions are illegal, history shows that they also are frequently neither useful nor necessary. . . . our experience in applying the interrogation standards laid out in the Army Field Manual on Human Intelligence Collector Operations that was published last year shows that the techniques in the manual work effectively and humanely in eliciting information from detainees. The cochairs of the 9/11 Commission emphatically agree. On Monday, the chairmen, together with two former Secretaries of State, three former National Security Advisors, and other national security experts, wrote that ``[c]ruel, inhuman and degrading treatment of prisoners under American control makes us less safe, violates our national values, and damages America's reputation in the world.'' Torture is ineffective. It is wrong. It is dangerous to all those who serve the United States of America in harm's way. It should never, ever be used by any person who represents the United States of America or any agency that flies the American flag. I was proud last July to introduce an amendment in the Intelligence Committee that would write this rule into law. When that effort did not succeed, I was proud again last winter to support Senator Feinstein's amendment in conference. I call on all my colleagues to support this legislation. We can journey no longer down Winston Churchill's stairway which leads to a dark gulf. As Winston Churchill said: It is a fine broad stairway at the beginning, but after a bit, the carpet ends. A little farther on, there are only flagstones, and a little farther on still these break beneath your feet. The United States of America--the city on a hill, the light of the world, the promise of generations--must not ever condone torture. Torture breaks that promise. Torture extinguishes that light. Torture darkens that city. I hope by our actions today, we in the Senate will help turn this country back toward our centuries-old promise. I hope we will turn toward the light. I yield the floor.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Mr. President, I have at the desk a modification to amendment No. 3920.

Mr. WHITEHOUSE. Mr. President, much of the FISA battle in which we have been engaged over the weeks that it has taken to resolve this issue has been over trying to do two things: one, to fit this program within the separation of powers principles of the American system of government and, two, to make the rights of Americans consistent with what they enjoy stateside in law enforcement investigations. This amendment is a valuable step in both of those directions, and it solves the minimization issue that had been in dispute. I appreciate very much the roles of Chairman Rockefeller, Vice Chairman Bond, FBI Director Mueller, and DNI counsel Powell in getting us to a voice vote on this bipartisan amendment. Mr. President, I ask unanimous consent that amendment No. 3920, as modified, be adopted by voice vote.

Mr. WHITEHOUSE. Mr. President, if we vote for retroactive immunity, we violate the rule of law taking away legitimate claims in legitimate litigation in a manner that is unprecedented and unconstitutional. If on the other hand we do nothing, we leave American companies gagged by the state secrets privilege in ongoing litigation. This amendment is a sensible, fair, bipartisan alternative that takes away no rights, that follows the Federal Rules of Civil Procedure, that honors the separation of powers principles and leaves no litigant gagged by the Government. Please support the amendment.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Mr. President, I am glad to have had the occasion to be on the floor and hear the words of the very distinguished Senator from Utah, who has served with such distinction on the Intelligence Committee for so long, but I would respond to him first that this much- touted 13-to-2 vote in the Intelligence Committee, as shown by the record of the additional views of the members of the Intelligence Committee, reflected the consensus of the Intelligence Committee that this was a work in progress; that it should go on to the Judiciary Committee, which was its next stop, and then to the floor. There was no sense that the work on the bill should stop at the time it left the Intelligence Committee. Indeed, in the 13-to-2 vote, there were 9 Senators who offered additional views suggesting changes or differences in the legislation. So I don't think it would be wise or appropriate for this body to take a look at what the Intelligence Committee did and say that because the number appears to be 13 to 2 on the surface that we are not going to do our job of continuing to work on this work in progress. In that spirit, I rise today to support amendment No. 3919, on good faith determinations, offered by Senators Feinstein and Nelson. In the divisive debate we are having over immunity, Senator Feinstein's amendment is a commendable effort to find middle ground, to which Senator Feinstein has brought great diligence and care. Senator Specter and I have offered a broader approach, but I also support the Feinstein-Nelson amendment. This amendment goes forward with the first half of Specter- Whitehouse. It provides for an independent judicial review of the companies' good faith. Specter-Whitehouse then provides for substitution of the Government in place of the companies, which would protect plaintiffs' legitimate rights to continue legitimate litigation, including the right to conduct discovery. Substitution also avoids the problem of uncompensated congressional termination of ongoing litigation--a separation of powers problem. Senator Feinstein's alternative at least provides for the bare minimum of a judicial determination whether the defendant companies were acting in compliance with the law or with the reasonable good faith belief that they were in compliance. I would note this is probably the lowest possible standard. We don't even require companies to have been acting within the law. All we require in this amendment is that they have a reasonable and good faith belief they were acting within the law. As I have said before, both of the all-or-nothing approaches we are presented with here are flawed. Full immunity would strip the plaintiffs of their day in court and take away their due process rights without any judicial determination that the companies acted in good faith. That is not fair. Nothing suggests this isn't legitimate litigation, and it is wrong to take away a plaintiff's day in court without a chance to show why doing so may not be warranted. I hope in this Chamber we can all agree that if the companies did not act reasonably and in good faith they shouldn't get protection. If we agree on that, the question becomes where the good faith determination should be made. I think it should be in court, and that is where Senator Feinstein's amendment puts it--in this case, the FISA Court. First, it should not be here. We in Congress are not judges, and good faith is a judicial determination. We should leave this key determination to the judicial branch of Government. The companies have, of course, asserted that they acted in good faith. But we surely should not rely on one side's assertions in making a decision of this importance. Moreover, most Senators have not even been read into the classified materials that would allow them to reach a fair conclusion. This body is literally incapable of forming a fair opinion without access by most Members to the facts. So this is the wrong place to have it. We need to provide a fair mechanism for a finding of good faith by a proper judicial body with the proper provisions for secrecy, which the FISA Court has. If we do not do this, we are simply acting by brute political force, and doing so in an area where there are significant constitutional issues. Congress cutting off the ongoing work of the judicial branch may well violate the boundary that keeps the legislative and judicial branches separate--a cornerstone of our Constitution. In an opinion written by Justice Scalia, the U.S. Supreme Court said that the Framers of the Federal Constitution had what they called ``the sense of a sharp necessity to separate the legislative from the judicial power, prompted by the crescendo''--was the word they used-- ``of legislative interference with private judgments of the courts.'' If there were ever a case of legislative interference with private judgment of the courts, this is it. On the other hand, consider the fact that the Government has forbidden these defendants to defend themselves. By invoking the state secrets privilege, the Government has gagged the companies. In my view, that is not fair either, particularly if the Government put these companies in this mess in the first place. So both of the all-or-nothing approaches are flawed. I think Senator Specter and I have come up with the best answer: substitution. But Senator Feinstein's amendment at least requires the FISA Court to make an initial determination that the companies either did not provide assistance to the Government--obviously, if they did not do anything, they should not be liable--or were actually complying with the law. Clearly, if they complied with the law, they should not be liable--or were at least acting with a reasonable good-faith belief that they were complying with the law--again, the lowest possible standard. If we cannot agree on this, then we have really taken our eyes off of our duties. The difference then becomes that once that good-faith determination is made, the Specter-Whitehouse amendment would lead to substitution, whereas the Feinstein-Nelson amendment would lead to a termination of the claims. Both of these approaches are better than the all-or-nothing alternative we otherwise face, and both share the same goal: to use existing procedures and existing rules and existing courts to unsnarl this litigation and move it toward a just and a proper conclusion. I urge my colleagues to support both the Specter-Whitehouse and the Feinstein-Nelson amendments. I make one final point. Senator Hatch pointed out that the people who serve us in our intelligence community are honorable, are well trained, are intelligent, are decent, and are trying to do the right thing. I do not challenge any of that. As the U.S. attorney, I worked with FBI agents day-in and day-out, Secret Service agents, Drug Enforcement Administration agents, Alcohol, Tobacco and Firearms agents--all decent, honorable, hard working, well trained, trying to do the right thing. In that environment, they are all very comfortable that the structure we have put in place for domestic surveillance, to protect American's rights, is a useful thing, it is important infrastructure of Government. I see what we are trying to do now not as a criticism of the people in the intelligence community but, rather, as being an attempt to build out the infrastructure, the infrastructure that balances freedom and security in this new area of international surveillance, in just the same way we put restrictions on our agents at home. As attorney general, I actually had to personally get the wiretaps for the State of Rhode Island from the presiding judge of the superior court. I would say the same thing about the Rhode Island State troopers with whom I worked in those cases. Agents and police officers who have this responsibility do not resent the fact that they are given a structure to work within. I doubt that the intelligence community would resent a sensible measure that would allow a judicial determination before an American company has a finding of good faith made about it. I yield the floor, and I suggest the absence of a quorum.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Mr. President, today I rise to speak for a few moments about health care and to recognize the extraordinary work four Members of this body have done to promote an integrated, interoperable health information technology infrastructure in this country. Senators Kennedy and Enzi on the HELP Committee, Senator Hillary Clinton, and Senator Hatch, along with their talented staffs, have balanced a tremendous number of interests to put forward a very promising first step in our long journey toward reforming our ailing health care system. I commend their tremendous effort in drafting the Wired Act. I look forward to working to see strong health information technology legislation passed in the Senate, in the House, and signed into law by the President. Adoption of health information technology is a vital part of saving lives and lowering costs in our health care system. The RAND Corporation estimates, in its most conservative estimation, that a national, interoperable HIT system could save $81 billion per year. As Senators Kennedy, Enzi, Clinton, and Hatch are so aware, America's health care information infrastructure is decades behind where it should be. We are losing billions and billions of dollars--I sound like Carl Sagan: billions and billions of stars--billions and billions of dollars to waste, inefficiency, and poor quality care as a result of that failure. Ultimately, and most tragically, lives are lost to preventable medical errors because health care providers do not have adequate decision support for their determinations on medical treatment, medication, and so forth. I am an enthusiastic supporter of health IT as one mechanism of fixing our broken health care system. In fact, one of the first bills I introduced as a Senator was the National Health Information Technology and Privacy Advancement Act, in which I proposed a national not-for- profit entity with Presidential appointment subject to advice and consent of the Senate, possessing rulemaking power to set national standards under the Administrative Procedures Act, and with the ability to set licensing and access fees to raise capital for necessary investments outside the Federal budget process. I still believe that is the best and most effective kind of authority. I also recognize there are many good ideas out there. But time is short. We cannot snap our fingers and be an IT-enabled health care environment. Development, testing, buildout, and adoption will all take time. We do not have much time. A tsunami of health care costs is sweeping down on us, inevitably, as baby boomers age and costs increase. The Comptroller General of the United States has warned us of what he called ``unprecedented stormy seas ahead that threaten to swamp the ship of state.'' He testified that ``we've never seen anything like what we're headed into''--never in our history. Our present Federal health care liability, if nothing changes, is $34 trillion. That is a ``34'' with 12 zeros behind it. It comprises the bulk of the $53 trillion in Federal liabilities we are presently obliged to pay in coming years. Now--now--is the time to get started in humane ways to avert this fiscal crisis. Health IT is a baseline platform necessary to even try to respond humanely to the looming crisis. Unfortunately, in moving toward our ultimate objective, we must realize that health IT adoption alone will not stop the tidal wave of health care costs. As I think we all know, our health care system is broken in more ways than one. Look at the signs of its failure. The number of uninsured Americans is climbing and will soon hit 50 million. Despite the best doctors, the best nurses, the best equipment and procedures, and the best medical education in the world, as many as 100,000 Americans are killed every year by unnecessary and avoidable medical errors. Life expectancy, obesity rates, and infant mortality rates are a cause for national embarrassment compared to other industrialized nations. The annual cost of the system exceeds $2 trillion, and is expected soon to double. We spend more of our country's GDP on health care than any other industrialized country: 16 percent--double the average of the European Union. More American families are bankrupted by health care costs than any other cause. There is more health care than steel in Ford cars. There is more health care than coffee beans in Starbucks coffee. Hospitals are broke. Doctors are furious. Paperwork is choking the system. This system is crying out for reform. I believe that comprehensive restructuring of our health care system must rapidly address three critical issues. As I have already said, the first is the development of a national, interoperable, secure health information technology infrastructure. But there are two other equally important issues: One, the American health care system must invest properly in quality and prevention, promising areas where better care actually lowers cost; and, two, the way we pay for all this, the way we pay for health care, sends perverse price signals that drive market behavior away from the public interest, that drive behavior away from what we want. So these are the three critical issues at the core of the health care crisis in this country--inadequate health information technology, inadequate attention to quality and prevention, and a perverse price signal system. Let us look first at how improved quality of care can lower cost. That intersection of where improved quality of care and lower cost intersect should be our national holy grail in health care. The Keystone Project in Michigan shows how effective this can be. It went into a significant number of Michigan ICUs--not all of them but a significant number--to improve quality and reduce, for instance, line infections and respiratory complications. Between March 2004 and June 2005, the project saved 1,578 lives--in just that year and 2 months. It saved 81,000-plus patient days that otherwise would have been spent in the hospital, saving over $156 million. It is a win-win. The Rhode Island Quality Institute in my State took this model statewide, with every hospital participating, and we are already seeing the number of hospital-acquired infections declining, and the costs declining as well. The same principles can be applied to prevention, as well as to quality improvement. Local efforts around the country, such as the Rhode Island Quality Institute, Washington State's Puget Sound Health Care Alliance, and Utah's Health Information Network, are leading the way. We need, as a nation, to get behind these State and local efforts. As many Members of the Chamber know, any good business needs to do research and development and these local efforts are the R&D on which we can base reform of our broken health care system. All across America, in local communities, where people know and trust each other, the reforms of our system are being dreamed, negotiated, tested, and implemented. We need to nourish this effort, and I thank my 15 bipartisan cosponsors for supporting a small grant program I proposed to do just that. Now, consider why this quality reform is not happening spontaneously all over the country if those big savings are there waiting to be tapped. Think of Michigan: In 15 months, in one State, with not even all of the intensive care units participating, $156 million was saved. A report out of Pennsylvania showed they spent over $2 billion a year on hospital-acquired infections. Why is quality reform not happening everywhere? Well, primarily because the economics of health care punish you if you try. For example, a group of hospitals in Utah began following guidelines of the American Thoracic Society for treating community-acquired pneumonia. Significant complications fell from 15.3 percent to 11.6 percent. Inpatient mortality--a nice way of saying fewer people died--fell from 7.2 percent to 5.3 percent, and the resulting cost savings exceeded $500,000 per year. Sounds like another success story. But the net operating income of the facilities participating dropped by over $200,000 a year because the treatment that resulted in the healthier patients was reimbursed at $12,000 per case less. In Rhode Island, we saw the same thing. When we started the ICU reform, I talked to the Hospital Association of Rhode Island, and they estimated a $400,000 cost per intensive care unit, but as much as $8 million in savings--a 20-to-1 payback. I said: Why not go for this? They said: You don't understand. All the savings go to the insurers. For us, this is $400,000 cash out of our pockets, and potentially $8 million out of our top line in revenues. Name a business that will sensibly invest $400,000 out of its cash to lose $8 million in revenues. With reimbursement incentives like those, it is no wonder reform is such an uphill struggle. We are at such a primitive stage in developing cost-saving, quality measures, and the economics work against us, so we have to tackle this now. An idea that will get us started: In my Improved Medical Incentive Act, I propose that State medical societies and specialty groups be allowed to present ``best practices'' to their local State health departments. If they do, and a Health Department determines this is a best practice that will save money and save lives, then two consequences follow. CMS would be obliged to create a pricing differential favoring those best practices, and private insurers would be forbidden to deny claims for services consistent with the approved best practices. If people want to object, fine. Go to the hearing. Let's do this in a regular fashion. The determination of what gets paid for in our health care system right now is made in back rooms of the claims denial operations of insurance companies in scattered fashion, largely without oversight or review and laboring under heavy conflict of interest. If we move that determination toward proper formal hearings, we can expand statewide best practices in a way that the economics will support. Our health care problem is serious, it is vast, and it is looming. Health care IT is a crucial instrument in the health care reform toolbox, but it is not an end in itself. To fully realize its benefits, it must be coupled with a focus on quality improvement and a realignment of payment incentives. These three elements must move forward together. Let me emphasize in conclusion as energetically as I can: The time is now. Time is wasting now. The need is urgent. It may not feel like it, but solving this problem with system reforms such as this will take several years. If we don't start now, when the fiscal tsunami hits, we will be left with only fiscal solutions to the problem. It is immediate ones but unpleasant ones, including massive tax hikes or massive benefit cuts. If we are standing here, and if I am standing here 5 or 10 years from now having that tragic choice in front of me, well, shame on us if in our folly, in our improvidence, we were too intellectually lazy and too bereft of basic foresight to have taken the steps now that could have averted that sickening choice. As my colleagues know, we are seeing the beginnings of this debate now. The Bush administration has squandered its opportunity for meaningful health information technology reform, has squandered its opportunity for meaningful quality reform, and has squandered its opportunity for meaningful reimbursement design reform. Now, in the 2009 budget the President presented, he is proposing deep cuts in Medicare. We have to get ahead of this problem. This is a wake-up call. The time is now. I look forward to working with my colleagues on both sides of the aisle to get this important work done. Mr. President, I yield the floor, and I suggest the absence of a quorum.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Madam President, I thank the distinguished Senator from Pennsylvania. I consider it a great personal honor to join him in sponsoring this important amendment. He has served with great distinction as a prosecuting attorney for Philadelphia for many years and then has served in this Senate for 27 years with great distinction, making him the longest serving Senator in Pennsylvania's history. He has chaired the Senate Judiciary Committee, and he has always shown great intelligence and independence. In addition to all that, I am the junior member of the Senate Judiciary Committee, and he also has shown exceptional courtesy and good will toward me, notwithstanding my junior status and notwithstanding my position on the other side of the aisle. So it is with considerable pride and also considerable affection that I join him in supporting this amendment. We face, as Senator Specter said, the critical balance between freedom and security, which will always be difficult to maintain as long as a threat of terrorism looms. As we all know, one of the many difficult issues that balance presents to us is the question of whether to grant immunity to telecommunications carriers who may have assisted the Government in this surveillance program. On the one hand, the administration has called for a blanket grant of immunity to these companies. On the other hand, others have proposed preserving the status quo. We are proposing a more sensible, practical, middle path that does less constitutional damage and still protects the essential equities involved. The choice is to give immunity, to stop the litigation, to end the claims against the companies, and take away the plaintiffs' case against them, which is not fair. Nothing yet suggests this is not completely legitimate litigation. The courts who are considering it haven't thrown it out, it is in process right now, and it is not fair to the plaintiffs to up and take away their day in court. Moreover, there is a huge separation of powers problem of a legislature intruding into ongoing litigation, now before a judge, and taking away active claims. We would be taking away plaintiffs' rights and claims, taking away their due process without even providing for the basic judicial finding that the defendant companies acted reasonably and in good faith. That damage suggests that blanket immunity is not a great solution and, indeed, it may even be unconstitutional. The other choice we have on the immunity question is to do nothing. But consider this: the Government has forbidden the telephone company defendants to defend themselves, claiming state secrets privilege. They have tied the companies' hands behind their backs in this litigation, muzzled them, forbidden them to offer any defense. In my view, that is also not fair, particularly if the Government put these companies into this mess in the first place. If the Government wants to forbid self- defense by these companies, the decent thing for the Government to do would be to step into the lawsuit, and defend on their behalf. The Government should not leave legitimate American companies in the judicial arena, bound and muzzled, unable to defend themselves, and not itself be willing to step in the ring and take over. So it strikes me that doing nothing is not a great solution either. The solution that fits the problem we face is this Specter-Whitehouse amendment, and it has two very simple parts. One, a judicial determination, confidentially, in the FISA Court, whether these companies acted reasonably and in good faith. That is a very simple determination that can be made with a very small amount of testimony based in many respects simply on the record of what was provided to companies. Second, if they did act reasonably and in good faith, there is then a well-established procedure under rule 25 of the Federal Rules of Civil Procedure, rule 25(c) to be specific, that can substitute the Government for these companies in this litigation. First, let me talk about the good-faith determination. I hope we can all agree that if the companies did not act reasonably and in good faith, they shouldn't get protection. I hope we can agree on that. We establish a simple procedure for the good-faith question to be answered by the FISA Court. We in Congress should not be the judges of that. We are not judges. Good faith is a judicial determination. This is ongoing litigation. The companies have, of course, asserted to us that they acted in good faith, but that is no basis for us to conclude that, and we surely should not rely on one side's assertion in making a decision of this importance. Most Senators have not even been read into the classified materials that would allow them to reach a fair conclusion. This body is literally incapable of forming a fair opinion without access by most Members to the facts. So we need to provide a fair mechanism for a finding of good faith by a proper judicial body with the proper provisions for secrecy, which the FISA Court has. Second, substituting in the Government. Well, if it turns out the Government directed the companies to engage in conduct that broke the law, the Government is the proper authority. If the companies acted reasonably and in good faith but ended up somehow breaking the law because of what the Government directed them to do, the real actor is the Government. Lawyers in this body will understand this is analogous to a principal-agent relationship. The Government is in effect the principal, the company acting as directed is the Government's agent, and under principal-agency law, the principal is liable for the acts of the agent. So the simple solution contained in this amendment follows the law, it is founded in the Federal Rules of Civil Procedure, and it fits the problem we face. Consider: No one has legitimate rights and due process summarily taken away. This is, after all, the United States of America. Two, if the carriers acted reasonably and in good faith, the Government steps in for them. In fact, the carriers get a judgment in their favor dismissing them from the cases. Third, no one is forbidden to defend themselves in ongoing litigation. No one is bound and muzzled but forced to stay in a judicial fight. Fourth, there is no intrusion by Congress into ongoing adjudication, no separation of powers trespassed. Finally, if the companies acted reasonably and in good faith at the direction of the Government but ended up breaking the law, the Government truly is the morally proper party to the case. So this is not just sensible, but it is right. I hope my colleagues will support this amendment. I see time is a little short, but let me continue a little bit longer because I wish to expand a little bit on this concern that intrusion by Congress into ongoing adjudication presents a separation of powers problem. Let me go all the way back to why we set up the separation of powers in the first place. I quote U.S. Supreme Court Justice Scalia specifically who said: The sense of a sharp necessity to separate the legislative from the judicial power triumphed among the Framers of the new Constitution prompted by a crescendo of legislative interference with private judgments of the courts. So the question of a legislature interfering with ongoing litigation was the live concern of the Founding Fathers when they separated the powers. In a case called the United States v. Klein, the U.S. Supreme Court threw out a congressional statute that purported to provide the rule of decision in a particular case, saying of this relationship between the legislative and judicial powers: It is of vital importance that the legislative and judicial powers be kept distinct. It is the intention of the Constitution that each of the great courts and departments of the government--the legislative, the executive, and the judicial--shall be in its sphere independent of the others. So I urge my colleagues who are considering this to consider the sensible merits of this amendment, to consider this is the morally right way to go forward, and further, to consider that it reduces considerably the risk that if we go ahead and give these companies this immunity, the companies end up with a lawsuit, they end up with a case and a statute that is thrown out because it is unconstitutional, and in effect we create a snarl rather than a solution for them. So with that said, I would again like to say how very much it means to me to be cosponsoring this amendment with the very distinguished Senator and former chairman of the Judiciary Committee, Senator Specter of Pennsylvania. I thank the Chair and I yield the floor.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Mr. President, first let me express my appreciation to the distinguished vice chairman of the Senate Intelligence Committee for his very energetic dedication to moving this bill forward. We have not agreed on everything, but nobody can challenge his dedication to moving a bill and to making progress on this issue. Amendment No. 3920 to Amendment No. 3911 Mr. President, per the pending agreement, I call up amendment No. 3920, the Whitehouse amendment.

Mr. WHITEHOUSE. I yield the floor.

Mr. WHITEHOUSE. Mr. President, I ask unanimous consent that my remaining time on this amendment be reserved until a later time.

Mr. WHITEHOUSE. Mr. President, I ask unanimous consent that the reading of the amendment be dispensed with.

Mr. WHITEHOUSE. Will the vice chairman yield for a question? Inquiring through the Chair, I am wondering when the vice chairman believes Senators Hatch and Sessions might be here?

Mr. WHITEHOUSE. The 12 minutes will work, leaving time for the chairman and some to spare.

Mr. WHITEHOUSE. Does that leave 3 or 4 minutes, 5 minutes for the chairman?

Mr. WHITEHOUSE. No objection.

Mr. WHITEHOUSE. I yield to Senator Schumer.

Mr. WHITEHOUSE. Mr. President, in this debate about revising FISA and cleaning up the damage done by the President's warrantless wiretapping program, the administration has talked at length about the importance of our foreign intelligence activities. It expends all its rhetorical energy on a topic where we all agree, but it has largely ignored the issue that has been central to our debate: On what terms will this administration spy on Americans? I rise today in support of an amendment offered by myself; by the distinguished chairman of the Senate Intelligence Committee, Chairman Rockefeller; the distinguished chairman of the Senate Judiciary Committee, Senator Leahy; Senator Schumer of New York; and Senator Feingold of Wisconsin, that addresses this issue: the privacy of Americans from Government surveillance. Our amendment reflects the convergence of ideas Senator Schumer has been working on in the Judiciary Committee and I was working on in the Intelligence Committee and, similarly, Senator Feingold has played a critical role in advancing this issue in both committees. Both chairmen, Senator Leahy and Senator Rockefeller, have reviewed it and given it their blessing. It is carefully crafted to incorporate statutory language offered by the Department of Justice as technical assistance. On this amendment, we have done our homework. What is this amendment about? As a former U.S. attorney and Rhode Island attorney general, I oversaw wiretaps and other surveillance procedures, and I learned that with any electronic surveillance, whether it is a domestic law enforcement investigation or intelligence gathering on international terrorism, information about Americans is intercepted incidentally--in other words, when they are not being targeted by our intelligence or law enforcement agencies but overheard because they are talking to or talking with or even being discussed by someone who is under surveillance. So minimization is the term of art. Minimization is the process for protecting the privacy of Americans who are caught up in surveillance without being the target of the surveillance. The issue here is privacy rights of Americans, and in domestic law enforcement there are clear, established procedures for minimizing the collection or retention of this information to ensure that the privacy of innocent Americans is protected. In this pursuit, the prospect of judicial review--the prospect of judicial review--is an important part of our protection. Under the Senate Intelligence bill before us, the court has the authority to approve minimization procedures. It has the authority to approve the procedures, but it is then told that it can't look fully into whether the procedures are being followed. Thus, there is no guarantee the procedures are actually being adhered to by the executive branch on the part of the overseeing court. I have introduced this amendment to give the FISA Court the same discretionary authority to follow up on the implementation of all these minimization procedures that it has in every other context and that is common to all courts throughout the American system of justice. Chairman Rockefeller and Vice Chairman Bond have already agreed and put into the bill we will vote on that this authority already lies with the court where the target is an American, and I wish to thank Vice Chairman Bond in particular for working with me in bipartisan fashion on that point. If the target of surveillance is an American inside the United States or if the target of the surveillance is an American overseas, then the court has the authority to review compliance through the minimization procedures. But as will often be the case, the target will be a person outside the United States, a person who is not in America, and then an American could just as easily be incidentally intercepted in these conversations, and they should still have rights, and they should still have protections. Because minimization serves to protect the incidentally intercepted person, this protection should apply when the incidentally intercepted person is an American, and the court's authority to make sure the rules are being followed should apply there as well. It makes no sense to strip a court of its natural authority based on the identity of the target when the protection runs to the American who is not the target but who has been incidentally intercepted. It, frankly, makes no sense as a general proposition to limit the court's authority to see whether rules it has approved are being followed. I found no place else in the law, no place at all where the authority of a court to approve an order, a rule, or a procedure is not accompanied by the concomitant authority to see if there is compliance. It is basic. Indeed, it may very well be, if there is litigation on this matter, a court will find that it is so basic to judicial authority that they will imply it. But we should put it in the bill and get it right; otherwise, we are creating in this bill a bizarre and unique quirk in American law, and there is no sensible justification offered for it. To be clear, this amendment creates no mandates, no cumbersome procedures. Indeed, it may never be used at all. In my experience, as I said, the mere prospect--the mere prospect--of a judicial inquiry into compliance has a salutary effect--a healthy attention-getting, awakening, compliance-enhancing effect--on those who are charged with complying with the law. The opposite, I am afraid, is true as well. When executive officials are assured, as this law would do without this amendment, that the court that approves the minimization procedures is forbidden to police the compliance of those procedures, one can reasonably expect looser compliance in this enforcement holiday. I know the Bush administration fears and despises judicial oversight, probably with very good reason, but that is no reason that we as a Senate should follow them down this wayward path. Both here, where the FISA bill creates an unheard of limitation on judicial power to examine compliance with its own approved rules, and in the immunity debate, where we are being led as a legislature into ongoing legislation to choose winners and losers, we embark into dangerous territory, outside the well-established traditions of the separated powers of our American system of government. Particularly to my colleagues who are members of the Federalist Society, an organization with a declared interest in separation of powers, I hope you will take this occasion to defend those principles. To quote the distinguished Justice Scalia from a Supreme Court opinion regarding a sense of sharp necessity about this separation of the legislative from the judicial power at the founding of our Government: This sense of a sharp necessity . . . triumphed among the Framers of the new Federal Constitution. And it did so, again quoting the decision: . . . prompted by the crescendo of legislative interference with private judgments of the courts. Going back to a previous decision, United States versus Klein, the U.S. Supreme Court, in a holding that Congress may not establish the rule of decision in a particular case, said of the legislative and judicial powers: It is of vital importance that the legislative and judicial powers be kept distinct. It is the intention of the Constitution that each of the great co-ordinate departments of the government--the legislative, executive and the judicial--shall be, in its sphere, independent of the others. I submit that a court cannot be independent if it is stripped of the duty to determine whether rules and procedures it has the authority to approve are even being complied with. I urge other Members to support this amendment. I am very gratified to see Senator Schumer from New York on the floor. I know he has worked hard on this issue in the Judiciary Committee. I am very grateful that somebody of his experience and distinction would cosponsor this amendment. I yield to Senator Schumer.

Mr. WHITEHOUSE

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

Mr. WHITEHOUSE. Mr. President, I rise today to speak about the economic stimulus package that is now under consideration by the full Senate and specifically to address the crucial issue of how this package affects our senior citizens. I am particularly glad to be delivering these remarks on an occasion when my distinguished colleague from Florida is occupying the chair because I know of the extraordinary efforts he dedicates in this Chamber on behalf of the citizens of his home State of Florida. Like Florida, Rhode Island is a State that has a significant senior population, and so the welfare of those seniors and the effect on them of this economic stimulus is a matter of great concern to both of us. I want to tell a quick story. Not long ago, at one of the community dinners I give around the State of Rhode Island to get input from people, to have a chance to meet folks in our local communities, to have them have a chance to talk with me, and for me to have a chance to hear their stories, a young man named Travis attended, and he told me a story about his grandmother. His grandmother is a lovely woman. She lives in Woonsocket, RI. Woonsocket is a historic and beautiful city in Rhode Island but a city that has faced, for a long time, economic challenges. His grandmother is in her nineties, and she still lived in the three-story tenement, on her own, that she had lived in all her life in Woonsocket. In Rhode Island, there are a lot of buildings where there are three apartments, one on top of the other--three-deckers--and she lived on the top floor of one of those. God bless her, at age 90, she was able to walk up and down those stairs every day, and she did, to go out and do her errands, to visit with her grandson, and to go about her life. She was fit, and she was proud of her independence. It is not easy to go up and down those stairs every day, but she did it. She liked to live alone. She was proud of being independent her whole life and wanted to remain independent. One day, she went down the stairs from that third-story tenement, and she walked out, as she often did, to visit her pharmacist, to pick up the prescriptions she requires to maintain her health. Everything was just as usual, until she got to the pharmacy. She discovered that this was not a usual day. She was told by the pharmacist that she had fallen into the doughnut hole--the terrible coverage gap in the Part D Medicare prescription drug program. She hadn't seen it coming. She was blindsided, caught completely by surprise. You can imagine what was going through her mind when she was told she couldn't pick up her drugs, that she couldn't afford them. She went home to that third-floor tenement emptyhanded, without her prescriptions, and she walked back up those stairs. Frightened and alone, not sure what to do, she called Travis. Fortunately, he was able to help. But without any help from her Part D insurance, she couldn't afford to pay both her rent and that medicine. She was frightened. After years of living on her own, after holding on, really with a lot of courage and a lot of heart and a lot of determination, to that independence that meant so much to her, even if it meant walking up three flights of stairs every day, now she was going to lose that--not because of anything she had done wrong, not because of anything that had changed in her life, but because she had fallen into this trap that was set for her by this Congress when it built that hole into the prescription drug program. That call from his grandmother shook Travis pretty hard, and that is what brought him into my life. It was one of numerous stories I heard on the campaign trail from families who had to cope suddenly with watching a senior fall into that coverage gap. On another occasion, I was coming out of a speech I was giving, and a fellow stopped me on the way out and we talked for a while. He said: You know, I really want you to fix this prescription drug thing, and I want to tell you why. He said: I have a brother--this was a gentleman about my age. He said: I have a younger brother, now in his forties. He is severely disabled. He has serious mental challenges. He lives in a group home, and every week I go by and I take him out. I take him on an outing. I take him to the movies, to a ball game, or to walk around the mall, and I do it with $50. My mother gives me $50 every month to help take care of my brother. He said: She is elderly now. She had taken care of him all his life, but then he had to move into the group home, and now she is elderly herself, and there is not much she can do for her son. She still loves him deeply. She still cares for him very much. The one last thing she could do for this boy was to give her other son $50 a month out of her very sparse resources to take his brother on these outings. Now, he said, I have the $50. I am going to take my brother on these outings anyway. That is not the issue. The issue is that my mom just fell in this doughnut hole and, he said, she can't give me that $50 anymore, and it is breaking her heart to know that after all these years of caring for this boy and having this one last thing she could still do for him, she couldn't do it any longer. He said: She feels like a failure. Her heart is broken. Please, you have to do something about this. That is an indication of how close so many Americans are to the edge, that this mother, whose most important expenditure in her life is to be able to help that son and know she was still doing something for him, and she couldn't make that payment any longer because everything had to go to prescriptions and the basic necessities of just keeping alive. We have heard a lot of these stories. I know the distinguished Presiding Officer has heard these stories as he goes around Florida. As an aside, I think it is worth observing while we are here, what a shameful mistake--what a shameful mistake--this Congress made when it had the chance and it had the choice to close this terrible gap in this coverage for seniors and it chose not to. It chose not to so that it could give the wealthy pharmaceutical industry--one of the richest and most successful industries in the country--one of the fattest perks, one of the biggest benefits, one of the biggest insider deals that has ever come through this building--something almost unique in the annals of corporate special favors. What a racket. It gave them the ability to avoid having Medicare and Medicaid negotiate with them over the price of their pharmaceuticals. What a racket. And we did that. The extra cost that puts into that system means you have to maintain that hole and that seniors are going to fall into that trap over and over again. Well, that is a fight we are going to continue. I know the Senator from Florida feels strongly about it, I feel strongly about it, and many others feel strongly about that. It is wrong to have seniors such as Travis's grandmother or the lady who can't make her $50 contribution to help her son be the ones to lose and an industry making billions, which has everything it needs, win out over them. So now we have this stimulus package. Our Nation is confronting uncertain economic times, and Congress is working diligently to try to put together a package to prevent us from sliding further into the Bush recession. However, when the initial agreement was announced between the administration and the House of Representatives, I was concerned-- as the Senator from Florida was; we spoke about it--that many seniors, one of the groups who most need our help, were excluded from that deal. Most seniors, who rely on Social Security benefits and savings, do not pay income taxes, and they would not be eligible for an income tax rebate based on taxable income and delivered through the Internal Revenue Service. It just wouldn't reach them. Indeed, 61 percent of seniors who received Social Security benefits did not pay income taxes in 2006, the last year for which there is data. Sixty-one percent would have gotten nothing under that package. Well, today, more than 138,000 Rhode Islanders--to the Senator from a great big State such as Florida, that may not seem like a big number, but 138,000 in a State with a population of just 1 million is a lot of people--138,000 Rhode Islanders over the age of 65 receive Social Security benefits. It is not a big benefit, it is not a generous benefit. It averages $12,374 a year. Based on the national percentage of recipients who pay income tax, it means more than 84,000 Rhode Islanders would receive nothing under the House proposal, 84,000 Rhode Island seniors, zippo, nothing for them. Nationwide that number climbs to 21.1 million seniors. More than 20 million seniors would not receive a dime in tax rebates under the House bill. That is not fair. That is not fair. As long as we are putting funds out in the economy in order to stimulate the economy, we should make sure the program reaches fairly to different segments of the population and certainly not leave out seniors. Extending the rebate plan to seniors will give much-needed breathing room to so many seniors who struggle every day to get by. But in addition to being more fair, it also makes economic sense. According to the Department of Labor, Americans over 65 are responsible for 14 percent of all consumer spending, and they spend an average of 92 percent of their income every year. In 2006 alone, they purchased more than $800 billion in consumer goods. So if you are looking to push consumer spending, seniors are a good place. That data suggests any rebate we are able to provide seniors will provide the kind of stimulus our country needs. Furthermore, older Americans are more likely to spend the money they receive and to spend it on goods and services that will help our economy grow, and they will spend it sooner. They will spend it faster. As we all know, one of the key purposes of this stimulus is to put the stimulus into the economy quickly. In a Budget Committee hearing a few days ago, I asked Peter Orszag, Director of the Congressional Budget Office, which would be a faster stimulus to the economy, Social Security or tax rebates. He testified: Social Security. So if we can help seniors get this through Social Security, better still. Last week, I wrote the Democratic and Republican leaders in the Senate about my concerns. I urged them to make seniors a priority in any stimulus package we consider. I am very encouraged and very pleased, standing on the floor right now, that the Senate Finance Committee, chaired by our distinguished colleague from Montana, Senator Max Baucus, has reported out of his committee, in bipartisanship fashion, a bill that would allow most seniors to receive a $500 rebate under the Finance Committee proposal. Social Security benefits would be considered as income for this limited purpose. Seniors with at least $3,000 in Social Security income, Social Security benefits, but we are treating it this one time as income for 2007, this past year, could claim the $500-per-person rebate simply by filing a tax return. Now, of course as we know, many seniors do not have enough taxable income to require them to file tax returns. They may not have filed in years and they may not be familiar with the process. So as we go forward, should this proposal become law, I hope it does, we must do all we can to inform seniors about the rebates to which they are entitled and to help them claim these much-needed rebates. We need to call on our friends who are accountants, social service workers, lawyers in the tax area, who can volunteer their time to work at senior centers in high-rises, work with our seniors to make sure seniors know they can do this and help them fill out this form so they can get this benefit. So many seniors desperately could use an extra $500. That is nearly a whole year of this gentleman I mentioned, of his mom being able to help her son. Her whole thing every year was $600. It meant the world to her and it was only $600. And she could not do this. But this $500 will make a big difference in these seniors' lives. So we have to make sure no senior loses out on this money because of misinformation or difficulty in navigating the tax forms. The solution is a strong step forward. I applaud the work of Chairman Baucus and the Republican ranking member of the Finance Committee, Chuck Grassley. I look forward to continuing our efforts to pass an economic stimulus proposal that meets the pressing needs of America's seniors while accelerating the stimulus the economy needs. I will close by saying once again how fortunate I feel to be on the floor delivering these remarks at a time when the distinguished Senator, Bill Nelson, for those who cannot see him, of Florida, is in the Presiding Officer's chair. Because again, his strength and determination on issues that affect seniors in Florida is renowned in this Chamber, and I could not hope for a better audience as someone with such care and dedication to American seniors to be here. I yield the floor and I suggest the absence of a quorum.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Madam President, I guess I would like to start by saying I appreciate very much the sentiments that were recently expressed by the Senator from Tennessee and the Senator from Texas, who is my friend who served with me as attorney general at the same time in our respective States, Texas and Rhode Island. I ask them to let me know when that new approach will begin because I am, frankly, not seeing much of it in the Foreign Intelligence Surveillance Act procedures we are going through on the floor. I confess, I am a new Member of this body, and I do not understand why. We heard Senator Dodd, the very distinguished Senator from Connecticut, who has served in this body for 27 years, describe how important this Chamber is and that it is the right of Senators to debate matters, not for the sake of ventilating themselves but toward actually getting a vote on a real amendment on a matter of real significance. We had one vote on a committee amendment. Not one Senator has achieved getting a vote, and we are on a very short timeframe. I may be new, but I will tell you that in the 1 year I have served, I have presided a great deal. The Presiding Officer, the Senator from Minnesota, and I have both spent a lot of time in that chair. It is a wonderful place to sit, and you get a great view and a great education as to what goes on in the Chamber. I can recall over and over hearing my colleagues on the Republican side of the aisle, as mad as they could be, complaining bitterly because the majority had offered them only 10 amendments on a bill or only 20 amendments on a bill. I cannot get one called up. Let me first say, this is an important issue. On the one hand, we have to deal with perhaps the greatest danger our country faces at this moment, which is the threat that comes from international terrorism, and we have at the same time to deal with one of the basic principles of our Government--freedom, freedom from, among other things, Government surveillance, unless it is done properly and by the law. This is not some new idea. It goes back to the Bill of Rights, where the very Founders of this country mandated that before the Government could intrude into the persons, places, houses, and effects of Americans, they had to get permission from a court. The balance between freedom and security is an important one, a historic one. So this is no minor issue on which to avoid real debate, and the amendments are important ones. The amendments involve the immunity issue about which Senator Dodd spoke so passionately. This is a very important issue. As I see it, we have some cleaning up to do in this body as a result of a real mess the Bush administration left us. They could have gotten a court order, and we know perfectly well that if a court order had been obtained, there would be no issue of immunity for us to address. A company following a court order is protected. End of story. They couldn't be troubled to get a court order to protect these companies they are so concerned about now. But you do not necessarily need a court order. You can actually get a certification from the appropriate Government official using language this Congress has provided, and it will also provide protection to companies that cooperate in Government surveillance, as long as they have been notified properly through the certification process. One would think the litigation would be over, if that certification process had been complied with. It would be a slam dunk. Which raises the logical conclusion that for some reason, the Government did not comply with the certification process. I don't know why they did that. I don't know if anybody else knows why they did that. It could be being obtuse and stubborn and insisting it had to be done under the President's unitary article II authority that they purposefully, deliberately failed to follow the certification process to prove that point they wanted to prove. If that is the case, they have walked these phone companies into all this concern we now have to address for no purpose whatsoever. But now we do have to address the problem. No matter how they got into it, we have this problem to address, and it is not an easy problem. One side says: Well, blanket immunity. Well, that is fine, but you are taking away rights and due process of people who are in court right now. A judge has looked at this case and he didn't throw it out. There is nothing to suggest that the litigation going on right now is not entirely legitimate. So if we do that, we are taking away real rights of real Americans that are currently in play right now before a court. I don't know of a time the Congress has ever done that. As a former prosecutor, like the Presiding Officer, the very notion that it is the legislature's job to go into ongoing legitimate litigation and make decisions about who should win and who should lose seems to me a spectacular trespass over the doctrine of separation of powers. I hope my colleagues in this body who are in the Federalist Society would be concerned about this separation of powers. On the other hand, we could strip the legislation of its immunity entirely and leave the companies in the litigation. That is not a great solution either. There is a problem with that solution. The problem with that solution is that the Bush administration has bound and gagged the company defendants--instructed them they may not defend themselves. So here you have legitimate American corporations in legitimate litigation being told by the Government that they may not speak, they may not answer, they may not defend themselves. That doesn't seem like a great outcome either. Well, an amendment I wish to offer, the one I just tried to call up, proposes a potential solution. If the Government is going to tell them they can't defend themselves, then in all decency shouldn't the Government step in for them and say: OK, we are going to bind you and we are going to gag you in this ring of litigation combat, but we are going to step in for you and not leave you unable to defend yourself? Isn't that the most decent, basic thing you could expect the Government to do? That is what this amendment would do. It would substitute the Government for the defendant corporations that the Government has bound and gagged in this litigation--muzzled. It would do another thing: It would make sure that a court decided that these companies had in fact acted in good faith before they were given that relief. They have told us they have acted in good faith, but we are a legislature. Good faith is a finding the courts make. We are not judges. We haven't heard from all sides. We haven't had hearings, such as a court would have to get to the bottom of this. There is an easy way to do it. You let the FISA Court, which has the secrecy necessary to get to the bottom of this, make the determination, the fundamental determination: Did these companies, in fact, act in good faith? That is a basic point of entry. We have all assumed it to be true, but it is not our job as Members of Congress to decide on the good faith of an individual litigant in a matter that is before a court. I think this is a very legitimate amendment. It may not be germane postcloture. It may never come up as a result of this. Maybe it is just the new Senator. Poor kid, all this work on these bills. Doesn't he know the merits don't matter around here? Maybe it is a situation related to me not knowing my way around here yet. But I don't think so. Because Senator Feinstein, who has been here for a very long time, who is very distinguished, who is one of the most bipartisan Senators in this Chamber, if not the most bipartisan Senator in this Chamber, has a very similar piece of legislation. She has taken the good faith test in the Foreign Intelligence Surveillance Court and picked it out as a separate, solitary piece of legislation, and she is pursuing that. That amendment can't be called up either. You could say: Well, maybe it is because I am a Democrat; they are shutting down all the Democrats. But my amendment is cosponsored by Arlen Specter, the very distinguished Senator from Pennsylvania, who has been the chairman of the Judiciary Committee. It is the Specter- Whitehouse amendment. I don't see how you could have a better credential, a better bipartisan credential than to have the Republican chairman of the Judiciary Committee as the cosponsor of the amendment. And yet we can't call it up, and because of the cloture motion that has been filed, it may never be called up. I think we are doing serious work, and I think we should get votes on these amendments. I know some of my colleagues have said: Well, you should defer to the committee bill. The committee bill was so good, it was bipartisan, it passed 13 to 2. Well, I was in that committee. Yes, it passed 13 to 2, but an awful lot of us said in our remarks on that bill that we passed it out of that committee in order to work on it further in the Judiciary Committee and in order to move amendments on the floor. It did not pass with a 13-to-2 vote of Senators saying this is ready to go to the President; this is ready to clear the Senate. It passed on a 13-to-2 vote of Senators who knew that the bill was going to the Judiciary Committee and who knew that the bill was going to the floor and had reason to expect the ordinary courtesies of this body to be able to offer amendments would be honored. In fact, the amendment I tried to offer yesterday that was objected to, that I can't call up, I raised in the Intelligence Committee. I was told by the executive branch officials there--and I should say that throughout this process I hope nobody would challenge how carefully my office has worked with the administration to get these things right, to get technical language worked through properly--I was told by the executive branch officials that the way I had written the amendment caused technical difficulties. So I didn't pursue it in the Intelligence Committee. I withdrew it, noting that we would work through the technical difficulties and then bring it up again later on. Nobody said then, oh, Senator Whitehouse, there is going to be no later on; the committee vote is all you will get. Nobody said that. Because that would violate the history and traditions of the Senate, because it would be wrong, and because it wasn't the program. It wasn't the plan at the time. I feel it has been represented to me that these amendments would be voted on, and I feel that representation has been dishonored by the procedure we are in right now. I want to read something. I prepared remarks in the event that this amendment was going to go in. Of course, I thought it was going to go in. I had the Republican former chairman of the Judiciary Committee as a cosponsor and it addresses the biggest question in this legislation. It provides a potential resolution of the conflict between the two arguments. Why on Earth would it not be something that I would be able to exercise my traditional right to raise on the floor? So I planned ahead and I wrote remarks for that occasion. Here is what I wrote at the very end of the remarks. Madam President, whether this amendment passes or fails, I would like to say that it is the product of a truly commendable process. Everybody here knows the old saw that the making of law is like the making of sausage. You might like the results, but you don't want to see what goes into making it. Not so here. This amendment and Senator Feinstein's are the results of many hours of thoughtful, bipartisan consideration, hard work by Senators and their staffs, reasoned and respectful committee debate, and what I am sure will be thorough debate on the floor. Those are the remarks I wrote. And I have to say right now, those words taste like ashes in my mouth. I hope the spirit that Senator Alexander and Senator Cornyn brought to the floor a moment ago will begin to animate the FISA debate, and that legitimate--and I believe my Republican colleagues will concede these are legitimate--and sincere-- and I believe my Republican colleagues will concede these are sincere-- and important amendments have a chance to be raised and debated and voted on here on the floor of the Senate. Madam President, I yield the floor.

Mr. WHITEHOUSE. Madam President, I ask that the pending amendment be set aside so I may call up amendment No. 3905.

Mr. WHITEHOUSE. Madam President, I appreciate very much the arguments made by the very distinguished Senator from Missouri, who is also the vice chairman of the Intelligence Committee and possesses great experience in this area. My point, though, is that all these arguments are for naught if the simple courtesy of a Senator being allowed to vote on his amendment is not honored. This particular amendment being nongermane postcloture means it may very well be squeezed out by the procedural devices the Republican leader has applied. So my simple question is, if I may ask it through the Chair to the distinguished Senator from Missouri, the Republican manager of this bill, can we assure Senator Specter and myself that this amendment will, at the appropriate time in this legislation, receive a vote?

Mr. WHITEHOUSE

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

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Madam President, first, let me thank the Senator from Oregon for his very kind words, probably too kind words, but that is one of the glorious conventions of this body. I salute his leadership in this area because perhaps the most significant thing that has been accomplished so far in this FISA dispute, that has been accomplished in a bipartisan fashion, in a manner in which great credit reflects on Vice Chairman Bond who is here on the Senate floor, is consensus has been reached that when an American travels overseas, the rights they believe they enjoy here in these United States, the rights the Constitution guarantees them here in these United States, travel with them and cannot be overruled at the whim of the very same branch of Government that seeks the surveillance. And the reason that was able to take place is because the Senator from Oregon had the foresight to put together the amendment that he and Senator Feingold and I argued for in the Intelligence Committee. I express my personal appreciation to him for his wisdom in that regard. I ask unanimous consent that the pending amendment be set aside in order that I might call up amendment No. 3908.

Mr. WHITEHOUSE. Mr. President, I thank the very distinguished vice chairman of the committee for his description of his views on this matter. I know they are honestly held and founded in his beliefs. I do take some issue with his recollection of the travel of this in the Intelligence Committee. I thought I heard the distinguished vice chairman say this amendment had been voted down in the Intelligence Committee. It is my recollection that I withdrew it because there were technical concerns that were described by some of the officials from the Office of National Intelligence and from the Department of Justice who were present. Indeed, it was that withdrawal and willingness to work to try to find a better amendment that resulted in the very commendable process by which the distinguished vice chairman agreed to allow the court to oversee compliance with its own rule in those two circumstances I mentioned earlier: where the target is an American, either overseas or at home. Other than that, the only other point I would add is that I think it is probably a situation unique in the annals of American law that an American court would be provided the authority to approve a rule or make an order but denied the authority to determine whether it was complied with. I can certainly think of no situation in our law or in our history where that has ever been the case. I know the distinguished Senator from Maryland seeks the floor. I yield the floor, and I thank the Presiding Officer.