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Foreign Intelligence Surveillance Amendments Act of 2008--Continued

Floor Speech

By:
Date:
Location: Washington, DC


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

BREAK IN TRANSCRIPT

Mr. WARNER. Mr. President, I rise, along with the distinguished chairman and ranking member of the Intelligence Committee on which I am privileged to serve. I commend my chairman and ranking member for the extraordinary capability with which they have handled this controversial issue of the FISA legislation and the bipartisanship they have shown. Our committee voted 13 to 2 on this measure which is now before the Senate. Currently, we have the Bingaman and Specter amendments. I join my chairman and ranking member in opposing these two amendments. They seek in one way or another to remove or render useless one of the most important sections of the FISA Amendments Act which is liability protection for the telecommunication carriers that assisted our Government with the President's terrorist surveillance program or TSP. Without the title II liability protection, the other sections of the FISA Amendments Act would become irrelevant because the carriers would not cooperate in the authorized programs.

This would be unfortunate, because the FISA Amendments Act is a critical piece of legislation for America's present and future security that achieves an important balance between protecting civil liberties and ensuring that our dedicated intelligence professionals have the capabilities they need to protect the Nation. The bill ensures that the intelligence capabilities provided by the Protect America Act, enacted in August 2007, remain sealed in statute.

Reforming FISA has not been an easy process. I would like to thank Chairman Rockefeller and Vice Chairman Bond for the work they have done to garner bipartisan support for the FISA Amendments Act. It would be unfortunate if that work were undone by one of these amendments.

If passed, the Specter amendment would prohibit the dismissal of the lawsuits against the telecommunications carriers if the President's Terrorist Surveillance Program were found to be unconstitutional by the courts. With all due respect to my colleague from Pennsylvania, I believe that whether the President acted within his constitutional authorities should be treated separately from the issue of whether the carriers acted in good faith.

The extensive evidence made available to the Intelligence Committee shows that carriers who participated in this program relied upon our Government's assurances that their actions were legal and in the best interest of the security of America.

Mr. President, I would like to call the Senate's attention to the report which accompanied the version of the FISA Amendments Act passed by the Senate Intelligence Committee by a vote of 13-2. Based on the committee's extensive examination of the President's TSP, the report noted that the executive branch provided written directives to the carriers to obtain their assistance with the program. After its review of all of the relevant correspondence, the committee concluded that the letters ``stated that the activities had been authorized by the President [and] had been determined to be lawful'' The committee report added the following:

On the basis of the representations in the communications to providers, the Committee concluded that the providers, in the unique historical circumstances of the aftermath of September 11, 2001, had a good faith basis for responding to the requests for assistance they received. Section 202 makes no assessment about the legality of the President's program. It simply recognizes that, in the specific historical circumstances here, if the private sector relied on written representations that high-level Government officials had assessed the program to be legal, they acted in good faith and should be entitled to protection from civil suit.

The Senate Intelligence Committee believed, by a vote of 13-2, that the companies acted in good faith and that they deserve to be protected. I agree and I believe that the TSP was legal, essential, and contributed to preventing further terrorist attacks against our homeland.

But, even if one were to disagree that the President acted within his article II powers, I cannot see the wisdom in seeking to punish the carriers and their shareholders for something the Government called on the carriers to do with the assurance that the action was legal.

The Specter amendment would put the companies, and their millions of shareholders, in legal limbo, waiting while the Government litigates unrelated constitutional claims. Historically, the Supreme Court has been reluctant to adjudicate constitutional disputes between the political branches of our Government, suggesting that a constitutional question could take years to resolve, if it can be resolved. Lawsuits against the companies would likely continue in the interim which would: Have negative ramifications on our intelligence sources and methods; likely harm the business reputations of these companies; and cause the companies to reconsider their participation--or worse--cause them to terminate their cooperation in the future.

I believe it would be unfair to use private companies as a substitute to adjudicate constitutional claims properly directed against the Government. My colleagues should keep in mind that individuals who believe that the Government violated their civil liberties can pursue legal action against the Government, and the FISA Amendments Act does nothing to limit that legal recourse. As noted by my colleague from West Virginia, the case that was before Judge Walker--which addresses a constitutional challenge against the government--can proceed.

Bottom line, companies who participate in this program do so voluntarily to help America preserve its freedom and the safety--individually and collectively--of its citizens. I have long supported the idea of a ``volunteer force'' for our military and I believe a ``volunteer force'' of citizens and businesses who do their part to protect our great Nation from harm is equally important. I fear that if we are forced to draft companies into compliance when our Nation calls them to duty, ultimately our security will suffer. Without this retroactive liability provision, I believe companies will no longer voluntarily participate. This will result in a degradation of America's ability to protect its citizens.

It is for these reasons that I urge my colleagues to oppose the Specter amendment and any other amendment that would change the FISA Amendments Act.

I yield the floor.

BREAK IN TRANSCRIPT

ENERGY CRISIS

Mr. WARNER. Mr. President, I rise to turn to the question that confronts America today; namely, the energy crisis. I use the word ``crisis'' advisedly, because today no less than a third of Americans are absolutely struggling night and day to find the funds necessary to meet ever increasing food prices and ever increasing energy prices. It is for that reason I have taken a step. I wish to repeat that. I have simply taken a step to write the Secretary of Energy and to write the Comptroller General, the head of the GAO, to determine what are the facts relating to the 1973-1974 energy crisis, how America addressed that crisis, and the actions taken by the President and the Congress in 1973-1974. Again, Congress acted unanimously to back the President in imposing a national speed limit, that speed limit for the purpose of lessening the demand for gasoline and hopefully to have consequent savings at the gas pump.

That is a chapter in American history. I remember it quite well. I was privileged at that time to be Secretary of the Navy. Indeed, the Department of Defense, although at war in Vietnam, came forward and participated to try and help America work its way through that energy crisis. The national speed limit was the centerpiece of that program.

I ask unanimous consent now to print in the Record the letters I sent to the Secretary of Energy and the Comptroller General at the conclusion of my remarks.

The PRESIDING OFFICER. Without objection, it is so ordered.

(See exhibit 1.)

Mr. WARNER. I thank the Presiding Officer.

Again, I am not taking a position that at this time we should invoke a new initiative in the Congress to pass legislation calling for a national speed limit because I simply do not have the facts. I am on a fact-finding mission. But if those facts come forward, as I believe they will, and show that this will help alleviate and lessen the demand at the pump and the cost to the American citizen, then I am quite likely to try--more than that, I am quite probably going to try--and garner support on both sides of the aisle to push forward with this legislation. I say so because I come back again to about a third of America at this point in time is frantically trying to make ends meet. We have to come up with a solution. We have to lead in the Congress, and hopefully the President will join. We have that duty.

Therefore, these two letters going to, certainly, the GAO, an impartial arbiter of the facts and finder of the facts, will provide this Chamber with the information necessary to make an informed judgment as to whether to go forth with legislation. I deem that the Secretary of Energy will reflect, quite understandably, the policy of an administration toward such a measure to bring about alleviation of the pressures at the gas pump today and on families.

Again, this step is in the category of conservation of energy. My colleagues--and I have participated with them--are looking at, in my opinion, three areas of addressing this problem: short-term, which is conservation, that is the only way to bring about some immediate measure of relief; secondly, intermediate steps, which I outlined in my speech here; and lastly, the long term. Much has been said about long-term steps. I take pride and push aside any sense of humility because for several years I have stood on this floor and urged offshore drilling, even put forth a measure here in this body which was defeated which called for the right of my State, Virginia, and such other States that might wish to join, through the Governor and the State legislature's participation, agreeing to drilling offshore of Virginia for gas. I am not suggesting I brought about a change of thinking in the administration, but the President now supports that concept. Indeed, a number of my colleagues now support that concept. I opine that I believe in due course the Congress will provide the President with legislation to take those important steps. But that offshore drilling will not lessen the price today at the pump.

It will not help a case which was the final straw to decide that I would embark on this course, when I read an article about the meals on wheels program where the shut-ins at home, who for economic reasons and physical reasons and other reasons can't go out and get their meals. They rely upon a system of volunteers to bring the meals to their homes. But that program is beginning to founder because the volunteers simply cannot afford the additional cost of gasoline. I don't know about my colleagues, but this causes me severe heart palpitations and concern. The reporter said to me, when he interviewed me on this an hour or so ago, a national reporter: All right, Senator, are you willing to drive at a slower rate? What sort of car are you driving?

I told him what type of car I drive. I said: There are occasions when I drive over 55 miles an hour, 60 miles an hour, sometimes 65. But I am willing to give up whatever advantage to me to drive at those speeds with the fervent hope that that modest sacrifice on my part will help those people across this land tonight and tomorrow and in the indefinite future dealing with this financial crisis.

I point out also that in 1973-1974, these were automobiles, how well I remember, without growth of the quick production lines that started after World War II. America was flourishing. Then all of a sudden, the Arabs put an oil embargo on this country and took away our ability to get fuel. The President reacted quickly. The Congress reacted quickly. We put in that limit. In due course, the pressure on the pump declined and gas fell to about $2 a gallon. In 1995, 20 years after the enactment of this legislation by the Congress and the President, the 55 miles was lifted. Mind you, it wasn't one President; it was a series of Presidents who endorsed this program of conservation in terms of the reduction of speed. I don't know. At one time I used to be a pretty good mechanic on automobiles, but they have now gotten a degree of complexity that is beyond my grasp. I rely on my son, who has devoted much of his life to auto racing.

He is a wonderful mechanic and an engineer on cars. He said the carburetion system--he argued with me about this when I spent the past weekend with him--shook his fist at me: I don't want this 55-mile-per-hour limit. And that is good advice. But he said the carburetion systems in cars today are better than they were in 1973 and 1974, and I judge that to be the case.

So I asked in my letters: Analyze the technical capabilities of the cars today, and could we anticipate bringing about a savings at the gas pump by virtue of a national speed limit? So we have to get the facts and put them together.

But I ask my colleagues, as they proceed to work on this issue--and I am all for the renewables, but that is long term. Offshore drilling: long term. We have to focus now on what measures we can take to help people now, if not long term.

I know colleagues are getting the same calls and the same letters I am receiving from those people who, frankly, feel very oppressed by this rapid development. Although it has increased basically a dollar a gallon in the last year, so much of it has come on in the last 120 days, unanticipated in speed and causing great hardship here at home.

I yield the floor.

Exhibit 1

U.S. SENATE,

Washington, DC, July 3, 2008.
Hon. SAMUEL W. BODMAN,
Secretary of Energy,
Washington, DC.

DEAR SECRETARY BODMAN: I write today with respect to the high cost of gasoline. Today, the average cost of a gallon of regular gasoline is more than $4.10. This is an increase of well over a dollar a gallon from a year ago.

As you know, each and every day, Americans struggle to cope with this rapid, record increase in fuel costs. Across the United States, individual Americans are taking their own initiatives to find ways to reduce gas consumption through driving less, altering daily routines, and even changing or cancelling family vacation plans.

To date, as far as I can determine, the federal government has taken few, if any, initiatives to join in this national effort to help address this ever increasing crisis.

I believe it is essential that we continue to modernize our energy infrastructure and develop a reliable, commonsense American energy strategy--one that includes new supplies from domestic exploration and extraction, encourages conservation, and promotes the use and advancement of clean, renewable energies.

I am among a group of many senators today who are working in a bipartisan fashion to find a solution. For the past several years, I have supported permitting the Commonwealth of Virginia to explore and extract energy offshore if its Governor and General Assembly so desire. This concept has just recently gained the support of the administration and a growing number of colleagues in Congress.

However, the truth is that new technologies and new sources of energy will not provide meaningful relief for years to come as new technologies are developed and as new sources of energy are discovered and extracted. We must be straight with the American public and not raise hopes that these efforts will provide immediate solutions and possible relief.

There are ways to give some immediate relief. In my view: new conservation efforts are the quickest way to see an immediate reduction in the price of gas at the pump. The American public is already doing its part through individual means of cutting back.

On a federal level, on May 22, 2008, Senator Bingaman and I introduced, and the Senate unanimously passed by voice vote, a sense-of-the-Senate resolution (S. Res. 577) that urged the President to initiate, among all federal departments and agencies of the executive branch, a reduction of their daily consumption of gasoline--if only by a small percentage.

To my knowledge, the administration has not responded to the Senate's action. In the absence of pending administration action, Congress should join with the public and make the concepts in the sense-of-the-Senate resolution a mandatory law.

Turning to another concept, I call to your attention action taken by the Congress and the executive branch during a similar petroleum shortage that occurred in 1973 and 1974. In January 1974, the President signed into law ``The Emergency Highway Energy Conservation Act'' (public Law 93-239), which passed both the House and Senate unanimously. This law was enacted in an effort to conserve fuel.

Specifically, the law put forth inducements for states to reduce speed limits to 55 miles per hour (mph) on all major highways. Failure to do so would jeopardize the ability of states to secure federal highway funds. The law was originally intended to be temporary, ceasing to be in effect if the President declared that there was no longer a fuel shortage or on or after June 30, 1975, whichever occurred first.

According to a Congressional Research Service report, the law resulted in reduced consumption of 167,000 barrels of petroleum a day, a roughly 2 percent reduction in the nation's highway fuel consumption. In addition, the National Academy of Sciences found that the law saved up to 4,000 lives per year from highway accidents. Given the significant increase in the number of vehicles on America's highway system from 1974 to 2008, one could assume that the amount of fuel that could be conserved today is far greater.

Given the fuel savings of the act, and the resulting significant decrease in highway fatalities attributable to the national speed limit, Congress made the national speed limit permanent in December 1974. In 1995, the law was repealed.

The purpose of this letter is to ask you to study this era of conservation, as I have, to determine whether the administration, with the support of Congress; should take similar action today.

According to the U.S. Department of Energy Web site, engineering data shows that fuel efficiency decreases rapidly above 60 mph. Specifically, for every 5 mph an individual drives over 60 mph, that individual essentially is paying an extra 30 cents per gallon in fuel costs.

As Congress continues to look for ways to ease this national problem, I put to you the following questions. I will share your responses with my colleagues.

(1) Given the significant technological improvements since 1974, at what speed is the typical vehicle traveling on America's highways today most fuel efficient?

(2) If a national speed limit was enacted similar to the 1974 law, but the speed limit under that law was consistent with most fuel efficient speed for the typical vehicle traveling on America's highways, what would be a reasonable projection for total fuel savings? And, what would be the savings for the average citizen who owns and operates a vehicle?

(3) If a new national speed limit was enacted consistent with the two questions listed above, how many fewer barrels of petroleum a day would Americans consume? Is it reasonable to believe that there would be a reduction in price at the pump? And, if so, what are the ranges you could project for cost reductions?

(4) If the federal government took the initiative to reduce its oil consumption, consistent the concepts of the sense-of-the-Senate resolution (S. Res. 577) how many fewer barrels of petroleum a day would be saved by the federal government?

Given that Congress, upon its return next week, will be vigorously considering all options, your response to this request could be of great help to my colleagues and me. Again, years ago, the Emergency Highway Energy Conservation Act worked. The administration's advice, after examining this era and these concepts, would be helpful.

With kind regards, I am

Sincerely,
JOHN WARNER.

--

U.S. SENATE,

Washington, DC, July 8, 2008.
Hon. GENE DODARO,
Acting Comptroller General of the United States, Government Accountability Office, Washington, DC.

DEAR MR. DODARO: I write today with respect to the high cost of gasoline. Today, the average cost of a gallon of regular gasoline is more than $4.10. This is an increase of well over a dollar a gallon from a year ago.

As you know, each and every day, Americans struggle to cope with this rapid, record increase in fuel costs. Across the United States, individual Americans are taking their own initiatives to find ways to reduce gas consumption through driving less, altering daily routines, and even changing or cancelling family vacation plans.

To date, as far as I can determine, the federal government has taken few, if any, initiatives to join in this national effort to help address this ever increasing crisis.

I believe it is essential that we continue to modernize our energy infrastructure and develop a reliable, commonsense American energy strategy--one that includes new supplies from domestic exploration and extraction, encourages conservation, and promotes the use and advancement of clean, renewable energies.

However, the truth is that new technologies and new sources of energy will not provide meaningful relief for years to come as new technologies are developed and as new sources of energy are discovered and extracted. We must be straight with the American public and not raise hopes that these efforts will provide immediate solutions and possible relief.

There are ways to give some immediate relief. In my view, new conservation efforts are the quickest way to see an immediate reduction in the price of gas at the pump. The American public is already doing its part through individual means of cutting back.

On a federal level, on May 2, 2008, Senator Bingaman and I introduced, and the Senate unanimously passed by voice vote, a sense-of-the-Senate resolution (S. Res. 577) that urged the President to initiate, among all federal departments and agencies of the executive branch, a reduction of their daily consumption of gasoline--if only by a small percentage.

To my knowledge, the administration has not responded to the Senate's action. In the absence of pending administration action, Congress should join with the public and make the concepts in the sense-of-the-Senate resolution a mandatory law.

Turning to another concept, I call to your attention action taken by the Congress and the executive branch during a similar petroleum shortage that occurred in 1973 and 1974. In January 1974, the President signed into law ``The Emergency Highway Energy Conservation Act'' (Public Law 93-239), which passed both the House and Senate unanimously. This law was enacted in an effort to conserve fuel.

Specifically, the law put forth inducements for states to reduce speed limits to 55 miles per hour (mph) on all major highways. Failure to do so would jeopardize the ability of states to secure federal highway funds. The law was originally intended to be temporary, ceasing to be in effect if the President declared that there was no longer a fuel shortage or on or after June 30, 1975, whichever occurred first.

According to a Congressional Research Service report, the law resulted in reduced consumption of 167,000 barrels of petroleum a day, a roughly 2 percent reduction in the nation's highway fuel consumption. In addition, the National Academy of Sciences found that the law saved up to 4,000 lives per year from highway accidents. Given the significant increase in the number of vehicles on America's Highway system from 1974 to 2008, one could assume that the amount of fuel that could be conserved today is far greater.

Given the fuel savings of the act, and the resulting significant decrease in highway fatalities attributable to the national speed limit, Congress made the national speed limit permanent in December 1974. In 1995, the law was repealed.

The purpose of this letter is to ask you to study this era of conservation, as I have, to determine whether the administration, with the support of Congress, should take similar action today.

According to the U.S. Department of Energy, engineering data shows that fuel efficiency decreases rapidly above 60 mph. Specifically, for every 5 mph an individual drives over 60 mph, that individual essentially is paying an extra 30 cents per gallon in fuel costs.

As Congress continues to look for ways to ease this national problem, I ask you to examine the following questions:

(1) Given the significant technological improvements in automobile design and function since 1974, at what speed is the typical vehicle traveling on America's highways today most fuel efficient?

(2) If a national speed limit was enacted similar to the 1974 law, but the speed limit under that law was consistent with most fuel efficient speed for the typical vehicle traveling on America's highways, what would be a reasonable projection for total fuel savings? And, what would be the savings for the average citizen who owns and operates a vehicle?

(3) If a new national speed limit was enacted consistent with the two questions listed above, how many fewer barrels of petroleum a day would Americans consume? Is it reasonable to believe that there would be a reduction in price at the pump? And, if so, what are the ranges you could project for cost reductions?

(4) If the federal government took the initiative to reduce its oil consumption, consistent the concepts of the sense-of-the-Senate resolution (S. Res. 577) how many fewer barrels of petroleum a day would be saved by the federal government?

Given that Congress is vigorously considering all options, your response to this request could be of great help to my colleagues and me.

With kind regards, I am

Sincerely,
JOHN WARNER.

BREAK IN TRANSCRIPT


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