FISA Amendments Act of 2007

Floor Speech

FISA AMENDMENTS ACT OF 2007 -- (Senate - January 24, 2008)

BREAK IN TRANSCRIPT

Mr. DURBIN. Mr. President, I will support the Judiciary Committee substitute to the FISA Amendments Act.

As a member of the committee, I wish to commend Chairman Leahy for his leadership. I think we have struck the right balance to give the Government the power they need to keep us safe but to protect our privacy, which we cherish so much as Americans.

I wish to commend the majority leader, HARRY REID, for bringing the FISA Amendments Act to the floor as one of our first items of business this year. I wish to thank my colleague and friend from the Senate Intelligence Committee, Senator Rockefeller. Though we may disagree on some aspects of this bill, he has been a real leader on an issue of great complexity.

Last August, Congress responded to the administration's request to approve foreign surveillance legislation on an expedited basis. Remember, we didn't come to this issue because the administration felt they needed to deal us into the picture. We came to this issue because the New York Times finally published an article and told us about this warrantless surveillance that was going on all across America for years, surveillance that was not approved by Congress and was clearly not allowed by law but continued by this administration with impunity until they were caught with their hands in the cookie jar by the New York Times. Then they came to Congress and said: Well, why don't you write a law. Can we help you write a law?

After 9/11, I can remember Senator Rockefeller, Senator Leahy, Senator Specter, and so many others who rose to the occasion and said: We will come together on a bipartisan basis to keep our country safe. We lost 3,000 innocent people. We don't want that to ever happen again. We passed the PATRIOT Act. It wasn't perfect, but it was bipartisan. It had a sunset built into it. We tried to give this Government the tools to keep America safe. There wasn't a lot of grandstanding and speechifying. We did our job.

Then what happened? The Bush administration decided, in so many different aspects of this war on terrorism, to deal Congress and the American people out of the picture from that point forward. We heard rumors about secret programs, and a handful of Members were briefed, I guess; I wasn't one of them. Then, it wasn't until the New York Times told the whole story that we were kind of drawn into this situation, where we are trying to write a law to approve a course of conduct which the administration was undertaking, at least to some degree, without even consulting or conferring with Congress in its constitutional capacity.

The Senate Intelligence Committee and the Senate Judiciary Committee have held a lot of hearings. They have debated how to write this law and voted on a lot of amendments. We are now facing the reality that the Protect America Act, which was passed a short time ago, will expire next Friday, February 1.

Under any circumstances, it would be difficult for the Senate to pass a bill of this complexity, reconcile our differences with the House, and get it all wrapped up in a week. But the President has made it clear he is not going to sign this bill unless it includes an amnesty for telephone companies that cooperated with the administration's warrantless surveillance program. This is a difficult, controversial issue many Members feel very strongly about. I am one of them. The President insists that an amnesty provision for telephone companies be included, and I think that is going to make it impossible for us to meet the February 1 deadline.

Senator Reid, the majority leader, has asked for a 30-day extension of the Protect America Act. Let's continue the current law for 30 days. Let's try to work out our differences. Let's do this in a responsible way. Senator McConnell on the Republican side objected--objected to carrying on the current law for 30 days while we tried to work out our differences. That objection speaks volumes. Even though he opposed the Protect America Act, the majority leader I think was acting in good faith and taking the sensible course of action: Let's try to work these things out and not punish anybody in the process. The current law would stay in effect for another 30 days. The Republican Senate leadership, MITCH MCCONNELL, said no.

Well, that is unfortunate. The spokesperson for the White House said on Tuesday:

The Protect America Act expires in just 10 days, yet after nearly 6 months of delay, Congress still has not taken the necessary action to keep our Nation safe. For the sake of our national security, Congress must act now.

So said the White House 2 days ago.

I can't follow this logic. On the one hand, the White House claims we face grave national security threats if this program expires, and on the other hand, when Senator Reid tries to extend the program for 30 days, the Republican leadership objects. I am sorry, but that doesn't follow.

It is worth recalling what brought us to this point. It is difficult to believe it has been over 6 years since the terrorists struck our country on 9/11. I will never forget that terrible day, and most Americans will not either. And we will never forget what happened afterwards when Congress came together and tried to respond and make our country safe. Sadly, today Osama bin Laden is still on the loose, and al-Qaida is still around and may be growing in size.

I wish the administration had continued the spirit of bipartisanship of the PATRIOT Act. They would have had the full support of Congress and the American people. We showed that with the passage of the PATRIOT Act. But even as we were debating that important law, the administration was secretly implementing torture and surveillance policies totally inconsistent with the values of our Nation. They didn't ask Congress to approve the warrantless wiretapping of innocent Americans or torture techniques such as waterboarding. Instead, they based their policies on the extreme view of some in the administration that the President, as Commander in Chief, was not bound by the law.

They discarded the Geneva Conventions after decades of America saying that was a significant underpinning of our relationship with the civilized world. They rejected it. They called it obsolete, the Geneva Conventions. They opened Guantanamo, which has become an international embarrassment. Former Secretary of State Colin Powell has joined so many others in saying: Close this embarrassment. Yet they continue.

The Justice Department's infamous torture memo narrowly redefined torture as limited only to pain equivalent to organ failure or death. Senator JOHN MCCAIN, a man who was a prisoner of war during Vietnam for years and years, spoke out and led a bipartisan fight to establish standards when it comes to the treatment of prisoners. I was happy to join him on a bill that had more than 90 votes, a strong bipartisan sentiment, a bill which sadly was watered down by a signing statement from this President, and I am afraid--though we may never know--I am afraid it has been ignored at many levels by this administration.

We still fight the Taliban and al-Qaida in Afghanistan, and while we are doing it, the administration has launched a misleading propaganda campaign leading perhaps to the greatest foreign policy blunder in American history: the war in Iraq.

It is worth noting that in a new report issued this week, the Center for Public Integrity concluded:

President George W. Bush and seven of his administration's top officials, including Vice President Cheney, National Security Adviser Condoleezza Rice, and Defense Secretary Rumsfeld, made at least 935 false statements in the two years following September 11, 2001, about the national security threat posed by Saddam Hussein's Iraq. An exhaustive examination of the record shows that the statements were part of an orchestrated campaign that effectively galvanized public opinion and in the process led the Nation to war under decidedly false pretenses.

Is there any more grievous sin in a democracy than for leaders at the highest level to mislead the people of a Democratic Nation into a war with such tragic consequences? Almost 4,000 of our best and bravest--innocent, hard-working, dedicated, and patriotic soldiers--have given their lives. Countless thousands have been injured because we were misled into a war by this administration.

The administration brooked no dissent from their misleading campaign for war or their misguided counterterrorism policies. If anyone raised an objection, they were branded as soft on terrorism. Who can forget John Ashcroft, our former Attorney General, blaming critics of the administration for spreading ``phantoms of lost liberty'' and warning ``your tactics only aid terrorists''?

Time and again, the administration and their allies pressured Congress to consider controversial proposals immediately before elections. Oh, that is when all the warning bells went off and the threat level colors were changed. We were told there was a threat on the way, and how were we to come to any other conclusion if we didn't see the evidence? What a coincidence that most of those warnings came right before an election. It was Karl Rove's playbook and the administration ran that play over and over and over again.

In 2002, the administration insisted Congress must vote to authorize the war in Iraq before the election or our security would be at risk. Why? White House Chief of Staff Andrew Card explained that ``from a marketing point of view'' that was the right time to ``introduce new products.''

In 2004, the administration and its Republican allies in Congress claimed it was imperative to reauthorize the PATRIOT Act before the election or our security would be at risk. This despite the fact it didn't expire until December 31, 2005. Congress chose this date for the express purpose of depoliticizing this debate.

For years, the administration insisted the President had unilateral authority to detain enemy combatants and try them in military commissions. Again and again our Supreme Court rejected the administration's arguments. Suddenly, shortly before the 2006 election, the administration changed course, insisting that Congress must vote to authorize military commissions or our security would be at risk. In fact, the administration's bill included amnesty for administration officials who had authorized illegal torture techniques. How will history judge us, granting amnesty to those who engaged in torture?

It is more than a year since Congress passed the Military Commissions Act. Despite their claims of urgency, the administration has failed to bring a single terrorist to trial.

In the 2006 election, the American people took a stand and rejected the politics and policies of fear and they rejected this administration's scare tactics. One would hope the administration would have learned a lesson. But in 2008, another election year has arrived and, unfortunately, here we go again with an administration continuing to stake out divisive positions on terrorism.

The administration claimed Attorney General Mukasey would turn a new page at the Department of Justice, but he has refused to say even now whether torture techniques known as waterboarding are illegal. During his confirmation hearing, Judge Mukasey promised to review the administration's classified interrogation techniques and assess their legality. It has been 2 months since then and yesterday I wrote to the Attorney General to remind him about that commitment. He has had ample time to study this issue.

Yesterday, the administration announced they were going to renominate Steven Bradbury to be head of the Office of Legal Counsel. This is the office that issues binding legal opinions for the executive branch, including having issued the infamous torture memo. I have repeatedly urged President Bush to withdraw this nomination of Mr. Bradbury because of his involvement in authorizing the administration's controversial interrogation and surveillance policies.

Now, the administration claims our security is at risk in this election year because Congress is allowing the Protect America Act to expire, even though Senator Reid 2 days ago tried to extend it for a month, and the Republican leadership objected. Well, no surprise.

Yesterday, Vice President Cheney weighed in. He gave a speech praising the administration's counterterrorism efforts. He ignored the lessons of the last 6 years. He praised Guantanamo Bay, even though his President has called for closing it, and he praised what he called the CIA's ``tougher interrogation program.'' Well, there is a phrase that is loaded. He claimed the CIA's interrogation techniques comply with our treaty obligations, although the military's top lawyers and others say they violate the Geneva Convention. He said Khalid Sheikh Mohammed, the alleged mastermind of 9/11, had been subjected to the CIA's ``tougher'' techniques. But the Vice President neglected to mention that 6 years after 9/11, Khalid Sheikh Mohammed and the other 9/11 planners still have not been put to trial. Some experts say it will be impossible to convict him because he was subjected to waterboarding and other torture techniques.

The Vice President urged Congress to pass FISA legislation. Quoting President Bush, he said:

The lessons of September 11 have become dimmer and dimmer in some people's minds.

Mr. Vice President, the American people haven't forgotten 9/11, and we never will.

We also have not forgotten that Osama bin Laden is still free and the resources needed to track him down were diverted to a war in Iraq.

We have not forgotten that the war in Iraq has cost our Nation billions and, tragically, the lives of almost 4,000.

We have not forgotten that instead of working with Congress to prosecute the war on terrorism in a bipartisan fashion that respects American values, this administration chose to go it alone.

We will never, ever forget the blood, sweat, and tears shed by countless American heroes, who fight even as we speak to defend what makes America unique in the world. They fight not to defend any race, religion, or ethnic group; they fight to defend a value--the value upon which our country was founded. We are a nation of laws, not men--not this President, not any President.

In his speech yesterday, the Vice President noted:

The terrorists waging war against this country don't fight according to the rules of warfare, or international law, or moral standards, or basic humanity.

That is true, but America is a lot better than the terrorists.

Ironically, the Vice President also noted:

This cause is bigger than the quarrels of party and agendas of politicians.

Well, that is true as well. I only wish the Vice President and the administration would have heeded his own words and stopped politicizing so many national security issues.

I urge my colleagues to reject the politics of fear and reject the scare tactics of this administration. Support the Judiciary Committee substitute, support the majority leader's request for a 1-month extension in the Protect America Act. We can give the Government the power it needs to protect us, and we can still uphold the rule of law and protect the precious liberties of the American people.

I yield the floor.

BREAK IN TRANSCRIPT

Mr. DURBIN. Mr. President, at the direction of the majority leader, I announce there will be no further votes today. The next vote is scheduled for 4:30 on Monday. It will be a cloture motion filed by Senator McConnell relative to the bill on the Foreign Intelligence Surveillance Act.

The Senate will be in session tomorrow at 9:30 for morning business and debate. Members who care to may come to the floor to discuss issues of their choosing. I would say on behalf of the majority leader as well our frustration that we have reached this point. We have a deadline of February 1 to enact this new FISA act. The President has argued he needs this to keep America safe. We have offered to the Republican side an extension of the current law so that the President would be able to continue this policy and program uninterrupted for a month, several months, as long as a year and a half, and we have been rejected. The Republican leadership on the floor has argued they do not want to extend this program as we try to work out differences on the issue of the liability of telephone companies that provided information to the Federal Government. That is unfortunate.

It is also unfortunate that we had Members of the Senate come to the floor in good faith to offer amendments to this bill. I can tell you, having spoken to those on our side of the aisle, each of the amendments was prepared and offered to the Republican side for their review, no surprises. We understood that they would offer their own amendments in response. That is certainly proper. It would engage the Senate in debate on some very important issues relative to national security. But it was the decision of the Republican leadership they wanted no amendments, they wanted no debate. They wanted the President's version of this bill, take it or leave it. They would rather run the risk of closing down this program of surveillance of terrorists than perhaps give us a chance for a few amendments to be debated and voted on in the next 24 hours. That is an unfortunate start to the 2008 Senate session.

In the last year of the Senate, the Republicans were responsible for some 62 efforts to stop debate on the floor, 62 efforts at filibusters, which is a modern record; in fact, it is an all-time record for the Senate; 62 different occasions the Republicans engaged in filibusters to stop debate.

We were hopeful as we talked about the stimulus package and bipartisanship, working together, that things had changed. And then within a matter of hours, the Republican leadership came to the floor to stop us from having any amendments, any debate in a timely fashion on this important bill, and also to stop us from extending this bill, this law, so the President can use this program, and that America would never have its security at risk.

I think the Republicans have taken an untenable, indefensible position. They do not want the law extended so the President can use it. They do not want us to enact any revision to the law or even debate it on the off chance that there might be a change. They have taken the position it is their way or the highway.

Well, we will have a vote on Monday, an unfortunate vote that would have been avoided with a modicum of cooperation here in the Senate.

So there will be no further votes today; the first vote will be at 4:30 on Monday.

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