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FOREIGN INTELLIGENCE SURVEILLANCE AMENDMENTS ACT OF 2008 -- (Senate - July 08, 2008)

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   Mr. CARDIN. Mr. President, I rise today in opposition to final page of this legislation, H.R. 6304, the Foreign Intelligence Surveillance Act of 1978, FISA, Amendments Act of 2008, if it is not amended to change the retroactive immunity provisions.

   The President must have the necessary authority to track terrorists, intercept their communications, and disrupt their plots. Our Nation still faces individuals and groups that are determined to do harm to Americans, as well as our interests throughout the world.

   I have spent many hours at the National Security Agency, which is located in Fort Meade, MD. The men and women of our intelligence agencies are dedicated public servants who are doing a great job on behalf of their country. They are trying to do their jobs correctly, and comply with all applicable laws and regulations.

   As a member of the Judiciary Committee, I have received classified briefings about the advice and requests that were given to the telecommunications companies by the U.S. Government. I have seen the opinions of counsel on this issue. I have attended numerous hearings on this issue.

   Congress must indeed make needed changes to FISA to account for changes in technology and rulings from the FISA Court involving purely international communications that pass through telecommunications routes in the United States. While we have a solemn obligation to protect the American people, we must simultaneously uphold the Constitution and protect our civil liberties.

   After learning about executive branch abuses in the 1960s and 1970s, Congress passed very specific laws which authorize electronic surveillance. Congress has regularly updated these measures over the years to provide the executive branch the tools it needs to investigate terrorists, while preserving essential oversight mechanisms for the courts and the Congress. FISA requires the Government to seek an order or warrant from the FISA Court before conducting electronic surveillance that may involve U.S. persons. The act also provides for postsurveillance notice to the FISA Court by the Attorney General in an emergency.

   I am very concerned that the FISA law was disregarded by the administration, and want to ensure that we put an end to this type of abuse. We are a nation of laws and no one is above the law, including the President and Attorney General. The President deliberately bypassed the FISA Court for years with his warrantless wiretapping program--long after any emergency period directly following the 9/11 terrorist attacks--and did not ask Congress to change the FISA statute. In fact, President Bush refused to fully brief Congress on the Terrorist Surveillance Program, TSP, the existence of which was only exposed through a New York Times story. After the story broke, the administration reluctantly agreed to place this program under the supervision of the FISA Court.

   I do believe that many of the telecommunications companies cooperated with the Government in good faith, and may be entitled to relief. But the FISA statute of 1978 already lays out procedures for the Government to seek a court order and present this order to the telecommunications companies and require their assistance. The 1978 FISA statute also provides certain immunities to telecommunications companies that provide this type of assistance to the Government.

   The President chose to ignore the FISA statute. If the President did not want to use the FISA statute or wanted to change it, he had the responsibility to come to Congress and ask for that change. He cannot change the law by fiat, or by issuing a Presidential signing statement. Congress must change the law, and the courts must interpret the law. Congress and the courts have the power, and often the responsibility, to disagree with the President, and these co-equal branches have the constitutional checks to override his veto, disapprove of a request for a warrant, or strike down an action as unconstitutional.

   I will vote against retroactive immunity for the telecommunications companies. The current bill only authorizes the district court to review whether the companies received written requests from the U.S. Government stating that the activity was authorized by the President and determined to be lawful by the executive branch. The Court would have to simply accept the executive branch's conclusion that the warrantless wiretapping outside of the FISA statute and without FISA Court approval was legal, which means the executive branch--not the judiciary--gets to decide whether the law was broken. I want the courts to be able to look at what the executive branch is doing. I want the court to protect individual rights. Granting this type of immunity would violate the basic separation of powers. It would also create a dangerous precedent for future administrations and private actors to violate the law, and then seek relief in Congress or from the President through an after-the-fact amnesty or pardon.

   There was a way to provide the telecommunications companies with appropriate relief. Senator FEINSTEIN's amendment would have allowed the courts to grant relief to the telecommunications companies if they acted reasonably under the reasonable assumption that the Government's requests were lawful. This amendment would have preserved the independent judgment of the judiciary, and preserved the necessary check and balance in our system of government. Unfortunately, the negotiators for this legislation rejected this compromise.

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   I also want to note the improvements made to title I of this legislation, compared to current law and the Senate-passed Intelligence Committee version. I thank the Members of the House and Senate who worked hard on improvements to this legislation, particularly House majority leader STENY HOYER.

   Title I is not perfect, but it is does bring the President's program under the FISA statute and FISA Court, and provides for oversight by Congress and the courts.

   Title I contains a sunset of December 2012 for this legislation. I feel strongly that the next administration should be required to come back and justify these new authorities to Congress. As a member of the Judiciary Committee, I believe the only meaningful cooperation we received from the executive branch on this issue occurred when they were facing a sunset and a potential lapsing of their authorities and powers under the statute. Congress will then have time to evaluate how the new law has been implemented, and debate whether further changes are needed.

   This legislation also requires the inspector general to review compliance with: (1) Targeting and minimization procedures; (2) reverse targeting guidelines; (3) guidelines for dissemination of U.S. person identities; and (4) guidelines for acquisition of targets who turned out to be in the United States. The inspector general review will be provided to the Attorney General, Director of National Intelligence, and the Judiciary and Intelligence Committees of the Senate and House. The public would also be given an unclassified version of these reviews, reports, and recommendations. These reviews will help Congress evaluate the new authorities under the FISA statute, and how the executive branch and the FISA Court are using these new authorities, before the legislation sunsets. Congress can then decide how best to reauthorize this program.

   The bill strengthens the exclusivity language of FISA and the criminal wiretap laws. Congress is making very clear that these statutes are the exclusive means by which electronic surveillance can be legally conducted by the U.S. Government. The bill also removes a troubling attempt to unduly broaden the definition of ``electronic surveillance.''

   Supreme Court Justice Anthony Kennedy, in his opinion in the recent Boumediene case on the Guantanamo detainees, stated: ``The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law.''

   I believe title I should have been strengthened by more effective court review. However, absent the retroactive immunity provisions in title II, I would support the compromise legislation, because it is important for the intelligence community to have the tools it needs. However, I regret that if the retroactive immunity provision remains unchanged in the final legislation, I will vote against the legislation, because of the fundamental problem with that provision.

   In conclusion Mr. President, shortly we will be considering the amendments to the Foreign Intelligence Surveillance Act, the FISA act. I must tell you, I think it is important that our intelligence community have the tools they need to obtain information from foreign sources. That is what this legislation is about. We need to modernize the FISA law. Communication methods have changed, and we need to give the tools to the intelligence community to meet their modern needs of communication.

   I serve on the Judiciary Committee. I was privy to many hearings we had, some of which were classified, to find out the information as to what we could do. We brought forward legislation that I think was the right legislation that would have given the necessary tools to the intelligence agencies to get information from foreign sources without being burdened by unnecessary court approval and protect the civil liberties of the people of this Nation. Unfortunately, that compromise was rejected.

   We are in this situation today where we have had major disagreements on how to amend the FISA statutes because of the action of the Bush administration. It is absolutely clear to me that the President went beyond the legal or constitutional authority that he has in doing wiretaps without court approval. I want to make it clear, the men and women who work at our intelligence agencies, many of whom are in Maryland at NSA, are doing a great job. They are trying to do everything that is correct to protect our Nation and do it in the correct manner. It was the Bush administration that went beyond the law. It was the Bush administration that went beyond the Constitution.

   It is important for us to balance the needs of our community to get information to protect us but also protect the civil liberties with the proper checks and balances in our system.

   That brings me to H.R. 6304, the legislation that will shortly be before us.

   Title I is a much better bill than the bill that left the Senate earlier this year. I think this bill has been worked on in a very constructive environment. I compliment not only Senator Rockefeller, who is on the Senate floor, for his hard work on this legislation, I also compliment my colleague from Maryland, Congressman Hoyer, the majority leader of the House of Representatives, for the work he did in bringing us together on a bill that I think is a better bill than the bill that left the Senate.

   This bill provides for a sunset in 2012. That is important because I find we do not get the attention from the administration on this issue unless they are faced with a deadline from Congress. This will force the next administration to take a look at this legislation and come back to the Congress with modifications or justifications for the continuation of the legislation. I think that is an important improvement.

   The legislation provides for the inspector general to review the targeting and minimization provisions. The targeting is when a U.S. citizen, perhaps indirectly, is targeted. And the minimization procedures deal with when the intelligence community gets information about an American without court approval, to minimize the use of that information or to seek court approval. Both of those provisions will be reviewed by the inspector general and reports issued back to the Congress with unclassified versions available for public inspection.

   The FISA Court is strengthened through the compromise that has been reached. Let me make it clear, I would have liked to have seen the Judiciary Committee's bill passed and enacted into law. I think we can still improve title I. But I believe in the legislative process, and I think there has been a fair compromise reached on title I.

   If title I were before us as an individual action, I would support the compromise because I think it is time to move forward. But there is title II, and title II is the retroactive immunity. It gives retroactive immunity to our telecommunications companies, our telephone companies. They are entitled to some relief. They acted under the urgency of the attacks on our country on September 11 and with the request of the President of the United States. They are entitled for some relief. But this provision goes way too far.

   It authorizes the executive branch to determine the legality of their actions. In other words, the agency, the President who asked for the information, will determine whether the telephone companies acted properly. It should be the courts. This takes too much away from the judicial branch. It, in my view, compromises the checks and balances that are so important in our constitutional system.

   We didn't have to be here. I thought Senator Feinstein offered a fair compromise, and I am surprised it was not taken by the negotiators. Senator Feinstein said: Why don't we let the FISA Court make a decision as to whether the telephone companies acted legally? That is a compromise I could have supported. I think it would have been a fair compromise. Unfortunately, that was rejected. Title II is a fundamental flaw in the separation of powers, in the proper protection of civil liberties of the people of this Nation, and a dangerous precedent for future action by this Congress.

   I will vote to remove or modify title II by the amendments that will be presented later today. I prefer to modify it. As I suggested, I think we have compromises that can work, but I will vote

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to remove it if there are no other options presented. If we do not modify title II, reluctantly I will not be able to support the compromise legislation that has been presented.

   I urge my colleagues to try to get this done right. This is an important bill. Unfortunately, it is fatally flawed with the legislation that is before us.

   I yield the floor.

   CLOTURE MOTION

   The ACTING PRESIDENT pro tempore. Under the previous order, pursuant to rule XXII, the Chair lays before the Senate the pending cloture motion, which the clerk will report.

   The assistant legislative clerk read as follows:

   Cloture Motion

   We, the undersigned Senators, in accordance with the provisions of rule XXII of the Standing Rules of the Senate, hereby move to bring to a close debate on H.R. 6304, the FISA Amendments Act of 2008.
E. Benjamin Nelson, John D. Rockefeller IV, Thomas R. Carper, Mark L. Pryor, Bill Nelson, Dianne Feinstein, Robert P. Casey, Jr., Barbara A. Mikulski, Claire McCaskill, Kent Conrad, Daniel K. Inouye, Mary L. Landrieu, Joseph I. Lieberman, Sheldon Whitehouse, Evan Bayh, Ken Salazar.

   The ACTING PRESIDENT pro tempore. By unanimous consent, the mandatory quorum call is waived.

   There is 2 minutes of debate evenly divided. Who yields time?

   Mr. BOND. I yield myself 1 minute in support of cloture.

   The ACTING PRESIDENT pro tempore. The Senator from Missouri.

   Mr. BOND. Mr. President, some opponents of this legislation claim that Congress is usurping the authority of the courts and that their trust lies in single, lifetime appointed judges in the judicial branch. I strongly disagree.

   The Constitution set up three coequal branches of Government. Our Constitution gives Congress the ability to determine the jurisdiction of Federal courts. This power is particularly important and necessary today in sensitive matters of national security.

   Further, the courts, including the FISA Court, have recognized the executive branch's expertise in matters of national security. They have stated that national security matters are not within their purview. It is entirely appropriate for this Congress to end this litigation and not entrust this matter any further to the courts with respect to the liability of particular participants in the program in the private sector. They can still sue the Government. We think a matter of fairness requires we protect those who assisted.

   The ACTING PRESIDENT pro tempore. Does anyone seek time in opposition? If not, all time is yielded back.

   The question is, Is it the sense of the Senate that the debate on H.R. 6304, the FISA Amendments Act of 2008, shall be brought to a close?

   The yeas and nays are mandatory under the rule.

   The clerk will call the roll.

   The assistant legislative clerk called the roll.

   Mr. DURBIN, I announce that the Senator from Massachusetts (Mr. Kennedy) is necessarily absent.

   Mr. KYL. The following Senator is necessarily absent: the Senator from Arizona (Mr. McCain).

   The ACTING PRESIDENT pro tempore. Are there any other Senators in the Chamber desiring to vote?

   The result was announced--yeas 72, nays 26, as follows:

[Rollcall Vote No. 167 Leg.]
YEAS--72

   Alexander

   Allard

   Barrasso

   Baucus

   Bayh

   Bennett

   Biden

   Bond

   Brownback

   Bunning

   Burr

   Carper

   Casey

   Chambliss

   Coburn

   Cochran

   Coleman

   Collins

   Conrad

   Corker

   Cornyn

   Craig

   Crapo

   DeMint

   Dole

   Domenici

   Dorgan

   Ensign

   Enzi

   Feinstein

   Graham

   Grassley

   Gregg

   Hagel

   Hatch

   Hutchison

   Inhofe

   Inouye

   Isakson

   Johnson

   Kohl

   Kyl

   Landrieu

   Lieberman

   Lincoln

   Lugar

   Martinez

   McCaskill

   McConnell

   Mikulski

   Murkowski

   Nelson (FL)

   Nelson (NE)

   Obama

   Pryor

   Roberts

   Rockefeller

   Salazar

   Sessions

   Shelby

   Smith

   Snowe

   Specter

   Stevens

   Sununu

   Thune

   Vitter

   Voinovich

   Warner

   Webb

   Whitehouse

   Wicker

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NAYS--26

   Akaka

   Bingaman

   Boxer

   Brown

   Byrd

   Cantwell

   Cardin

   Clinton

   Dodd

   Durbin

   Feingold

   Harkin

   Kerry

   Klobuchar

   Lautenberg

   Leahy

   Levin

   Menendez

   Murray

   Reed

   Reid

   Sanders

   Schumer

   Stabenow

   Tester

   Wyden

NOT VOTING--2

   Kennedy

   McCain

   The ACTING PRESIDENT pro tempore. On this vote, the yeas are 72, the nays are 26. Three-fifths of the Senators duly chosen and sworn having voted in the affirmative, the motion is agreed to.

   The question is on third reading of the bill.

   The bill (H.R. 6304) was ordered to a third reading and was read the third time.

   ELECTRONIC COMMUNICATION SERVICE PROVIDER

   Mr. BOND. Mr. President, I rise to engage the distinguished chairman of the Select Committee on Intelligence in a brief colloquy.

   Mr. ROCKEFELLER. I yield to the Senator.

   Mr. BOND. I thank the Senator. Today we have been debating the merits of title II of this bill, the title that contains the carrier liability protection provisions. I know that we both agree that title II is critically necessary to protect our national security.

   I would like us to focus for a moment on a small but important point related to the meaning of the term ``electronic communication service provider'' in title II. This is a term that was contained in the bipartisan Senate bill and was carried over in the current compromise bill.

   The term ``electronic communication service provider'' was intentionally drafted to encompass the full spectrum of entities being sued in a covered civil action. For example, if a provider received a written request or directive and the only assistance provided to the Government by that provider's related corporate entities was pursuant to that written request or directive, the related corporate entities should be entitled to the protections of section 802 as long as any assistance they provided meets the requirements of that section.

   Senator Rockefeller, do we share this common understanding of the meaning of the term ``electronic communication service provider''?

   Mr. ROCKEFELLER. Thank you, Senator Bond. I completely agree with your description of the meaning of ``electronic communications service provider.''

   The definition itself makes clear that the term is intended to include entities that are telecommunications carriers, providers of electronic communications service, providers of remote computing services, and any other communication service provider that has access to transmitted or stored wire or electronic communications. Significantly, the definition also includes any parent, subsidiary, affiliate, successor, or assignee of such entities, as well as any officer, employee or agent of such entities.

   Mr. BOND. Thank you Mr. Chairman.

   Mrs. FEINSTEIN. Mr. President, as the debate over the FISA legislation comes to a conclusion, and as a member of the Intelligence Committee for 7 1/2 years, I would like to comment once again on why I support this bill.

   Let there be no doubt: 7 years after 9/11, our country continues to face serious threats. There are some who seek to do us grave harm.

   So there is no more important need than obtaining accurate, actionable intelligence to help prevent such an attack.

   At the same time, there have to be strong safeguards to ensure that the Government does not infringe on Americans' constitutional rights.

   I believe this bill strikes an appropriate balance. It protects Americans and their privacy rights.

   This legislation is certainly better than the Protect America Act in that regard and makes improvements over the 1978 FISA law.

   This bill provides for repeated court review of surveillance done for intelligence purposes. It ends, once and for all, the practice of warrantless surveillance. It protects Americans' constitutional rights both at home and abroad. It provides the Government flexibility to protect our Nation. It makes it crystal clear that FISA is the law of the land--and that this law must be obeyed.

   For more than 5 years, President Bush ran a warrantless surveillance program--called the terrorist surveillance program--outside of the law.

   The administration did not have to do this. This specific program could have been carried out under FISA--and I believe it should have been.

   With this bill, we codify and clarify that this limited, intelligence program will be carried out under the law.

   This legislation allows the Government to collect information from members of specific terrorist groups or specific foreign powers. It is focused on collecting the content of communications from specific people. If those people are Americans, a warrant is required. Period.

   So today, we are faced with three options:

   No. 1. We can pass this bill. It is comprehensive and improves protections for U.S. persons and updates the FISA law to meet today's national security challenges; or

   No. 2. We can extend the Protect America Act. This bill was a stop-gap measure passed last August for a 6-month temporary period to provide time to develop this legislation. It was meant to be temporary, and it should be only temporary.

   No. 3. We can do nothing. If we do not pass legislation before mid-August, America will essentially be laid bare--unable to gather the critical intelligence that we need.

   We will lose the ability to collect information on calls into and out of the United States from specific terrorist groups. The fact is, like it or not, the collection of signals intelligence is indispensable if we are to prevent another attack on our homeland.

   Given these three options, I think the choice is clear.

   The legislation is a significant improvement over the Protect America Act and over the 1978 FISA legislation.

   Let me indicate certain substantial improvements:

   This bill ends warrantless surveillance. Except in rare emergency cases, all surveillance has to be conducted pursuant to a court order.

   The FISA Court reviews the Government's procedures and applications before surveillance happens.

   This bill strengthens the court's review. Not only must the FISA Court approve any surveillance before it is started, this court is given more discretion, with a higher standard of review, over the Government's proposals. The Protect America Act limited the court to a rubberstamp review. This bill changes that.

   This bill requires that surveillance be subject to court-approved minimization.

   In 1978, Congress said that the Government could carry out surveillance on U.S. persons under a court warrant but required the Government to minimize the amount of information on those Americans who get included in the intelligence reporting. In practice, this actually means that the National Security Agency only includes information about a U.S. person that is strictly necessary to convey the intelligence. Most of the time, the person's name is not included in the report. That is the minimization process.

   If an American's communication is incidentally caught up in electronic surveillance while the Government is targeting someone else, minimization protects that person's private information.

   Now, the Protect America Act did not provide for court review over this minimization process at all. But this bill requires the court in advance to approve the Government's minimization procedures prior to commencing with any minimization program. That is good. That is the third improvement.

   This bill prohibits reverse targeting. There is an explicit ban on reverse targeting. Now, what is reverse targeting? That is the concern that the National Security Agency could get around the warrant requirement.

   If the NSA wanted to get my communications but did not want to go to the FISA Court, they might try to figure out who I am talking with and collect the content of their calls to get to me. This bill says you cannot do that. You cannot reverse target. It is prohibited. This was a concern with the Protect America Act, and it is fixed in this bill.

   This bill goes further than any legislation before it in protecting U.S. person privacy rights outside of the

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United States. It requires the executive branch to get a warrant anytime it seeks to direct surveillance of collected content from a U.S. person anywhere in the world. Previously, no warrant was required for content collection outside the United States.

   Finally, there are numerous requirements in the bill for various review of the surveillance activities by agency heads and by inspectors general. The FISA Court and the Congress will be kept fully informed on the operations of this program in the future.

   Finally, exclusivity. Mr. President, I have spoken multiple times on this floor about the importance of FISA's exclusivity provisions.

   Before 1978, there was no check on the President's ability to conduct electronic surveillance. However, in 1978, Congress passed FISA, intending it to be the only way. Congress intended that FISA would be the only way--the exclusive means--to conduct surveillance on U.S. persons in the United States for foreign intelligence purposes. President Carter acknowledged that when he signed the bill.

   Nonetheless, this administration took the position that FISA was not exclusive. First it stated that FISA didn't apply to these particular surveillance activities. Then it said that Congress gave it authority through the Authorization for the Use of Military Force in Afghanistan. Then it said that the President couldn't be bound by an act of Congress because he had his own authority under the Constitution.

   I reject all of these arguments. And now a Federal court has addressed the subject of exclusivity head-on.

   On July 2, Chief Judge Vaughn Walker of the U.S. District Court for the Northern District of California delivered a decision in a case brought against the U.S. Government for its surveillance. Judge Walker wrote:

   Congress appears clearly to have intended to--and did--establish the exclusive means for foreign intelligence surveillance activities to be conducted. Whatever power the executive may otherwise have had in this regard, FISA limits the power of the executive branch to conduct such activities and it limits the executive branch's authority to assert the state secrets privilege in response to challenges to the legality of its foreign intelligence surveillance activities. (M:06-cv-01791-VRW, p. 23)

   These are powerful words in the opinion.

   So it is not just clear legislative intent, it is the current judicial position that FISA was and is exclusive.

   Yet, before the recess, it was asserted on the floor that the President has authority under article II of the Constitution to go around FISA. He does not, in my view.

   Moreover, they claim that the exclusivity language in the bill acknowledges the President's constitutional authority to conduct electronic surveillance outside of FISA. It does not.

   As the author of this language, let me state emphatically that the clear intent of the language is to bind the Executive to this law.

   Now, certain Senators are contending that this exclusivity language would allow the President to go outside of FISA.

   Let me be clear: this provision is not intended to, nor does it, provide or recognize any new authority to conduct electronic surveillance in contravention of FISA.

   It was drafted very carefully with input and agreement from people from both sides of the Intelligence Committee and the Judiciary Committee, the Department of Justice, and the Office of the Director of National Intelligence.

   The only way the President can move outside of FISA will be with another specific statute, passed by both Houses and signed by the President.

   In summary, the exclusivity language in this bill absolutely does not recognize the President's claimed ``Article II'' authorities to conduct surveillance in contravention of FISA or any other law.

   The bottom line is that FISA has always been the exclusive means to conduct electronic surveillance, and it continues to be the exclusive means. And no President, now or in the future, has the authority to move outside the law.

   Finally, Mr. President, I want to set straight who in Congress was notified about the program and when. Some are saying that the Congress was briefed.

   This is not true.

   Eight Members of the House and Senate were briefed on the program around the time of its inception, shortly after September 11, 2001: the House and Senate leadership and the chairmen and ranking members of the Intelligence Committees.

   The 13 rank-and-file members of the Senate Intelligence Committee, who by law are to be kept ``fully and currently informed'' of intelligence activities, were not briefed until well after the program was publicly disclosed in the New York Times in December 2005--4 years later. I want to make this crystal clear.

   The chairman and the ranking member of the Judiciary Committee--which shares jurisdiction over FISA--were not briefed until a significant period of time after the full membership of the Intelligence Committee was notified.

   Finally, I want to say a few words about immunity.

   Let me be clear, this particular immunity language is not ideal. I would have approached this issue differently.

   When the legislation was before the Senate in February, I moved an amendment to require that the FISA Court conduct a review of whether the telecommunications companies acted lawfully and in good faith. Unfortunately, my amendment was not adopted, but I continue to believe it is the appropriate standard.

   I have cosponsored an amendment by Senator Bingaman that would stay action on all pending lawsuits until 90 days after Congress receives a report, required elsewhere in this bill, by the relevant inspectors general on the President's surveillance program. That would give Congress a chance to decide on immunity based on a third-party review. If lawmakers took no action within 90 days, the provisions would go into effect.

   I have spent a great deal of time reviewing this matter. I have read the legal opinions written by the Office of Legal Counsel at the Department of Justice. I have read the written requests to telecommunications companies. I have spoken to officials inside and outside the Government, including several meetings with the companies alleged to have participated in the program.

   The companies were told after 9/11 that their assistance was needed to protect against further terrorist acts. This actually happened within weeks of 9/11. I think we can all understand and remember what the situation was in the 3 weeks following 9/11.

   The companies were told the surveillance program was authorized and that it was legal.

   I am one who believes it is right for the public and the private sector to support the Government at a time of need. When it is a matter of national security, it is all the more important.

   I think the lion's share of the fault rests with the administration, not with the companies.

   It was the administration who refused to go to the FISA Court to seek warrants. They could have gone to the FISA Court to seek these warrants on a program basis, and they have done so subsequently.

   So I am pleased this bill includes independent reviews of the administration's actions to be conducted by the inspectors general of the relevant departments.

   This bill does provide a limited measure of court review. It is not as robust as my amendment would have provided, but it does provide an opportunity for the plaintiffs to be heard in court, and it provides an opportunity for the court to review these request documents.

   Mr. President, this is not a perfect bill. It is the product of compromise designed to make sure that it provides the needed intelligence capabilities and the needed privacy protections.

   I think the bill strikes that balance and that the Nation will be made more secure because of it.

   Mr. BIDEN. Mr. President, I rise today in opposition to the Foreign Intelligence Surveillance Amendments Act of 2008. As one of the cosponsors of FISA in 1978, I am fully aware of the importance of giving the administration the surveillance tools it needs to keep us safe. This is a very difficult vote and I do not question the judgment of those who have chosen to support the bill. But because I am concerned that this bill authorizes surveillance that is broader than necessary to ..................
.................

   The ACTING PRESIDENT pro tempore. Does anyone seek time in opposition?

   Mr. BOND. Mr. President, I ask for the yeas and nays.

   The ACTING PRESIDENT pro tempore. Is there a sufficient second? There is a sufficient second.

   The bill having been read the third time, the question is, Shall the bill pass?

   The clerk will call the roll.

   The legislative clerk called the roll.

   Mr. DURBIN. I announce that the Senator from Massachusetts (Mr. Kennedy) is necessarily absent.

Mr. KYL. The following Senators are necessarily absent: the Senator from Arizona (Mr. McCain) and the Senator from Alabama (Mr. Sessions).

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   Further, if present and voting, the Senator from Alabama (Mr. Sessions) would have voted ``yea.''

   The PRESIDING OFFICER (Mrs. McCaskill). Are there any other Senators in the Chamber desiring to vote?

   The result was announced--yeas 69, nays 28, as follows:

[Rollcall Vote No. 168 Leg.]
YEAS--69

   Alexander

   Allard

   Barrasso

   Baucus

   Bayh

   Bennett

   Bond

   Brownback

   Bunning

   Burr

   Carper

   Casey

   Chambliss

   Coburn

   Cochran

   Coleman

   Collins

   Conrad

   Corker

   Cornyn

   Craig

   Crapo

   DeMint

   Dole

   Domenici

   Ensign

   Enzi

   Feinstein

   Graham

   Grassley

   Gregg

   Hagel

   Hatch

   Hutchison

   Inhofe

   Inouye

   Isakson

   Johnson

   Kohl

   Kyl

   Landrieu

   Lieberman

   Lincoln

   Lugar

   Martinez

   McCaskill

   McConnell

   Mikulski

   Murkowski

   Nelson (FL)

   Nelson (NE)

   Obama

   Pryor

   Roberts

   Rockefeller

   Salazar

   Shelby

   Smith

   Snowe

   Specter

   Stevens

   Sununu

   Thune

   Vitter

   Voinovich

   Warner

   Webb

   Whitehouse

   Wicker

NAYS--28

   Akaka

   Biden

   Bingaman

   Boxer

   Brown

   Byrd

   Cantwell

   Cardin

   Clinton

   Dodd

   Dorgan

   Durbin

   Feingold

   Harkin

   Kerry

   Klobuchar

   Lautenberg

   Leahy

   Levin

   Menendez

   Murray

   Reed

   Reid

   Sanders

   Schumer

   Stabenow

   Tester

   Wyden

NOT VOTING--3

   Kennedy

   McCain

   Sessions

   The bill (H.R. 6304) was passed.

   Mr. REID. Madam President, I move to reconsider the vote and to lay that motion on the table.

   The motion to lay on the table was agreed to.


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