[Congressional Record: December 3, 2007 (Senate)]
[Page S14703-S14705]


      By Mr. SPECTER:
  S. 2402. A bill to provide for the substitution of the United States 
in certain civil actions; to the Committee on the Judiciary.
  Mr. SPECTER. Mr. President, I seek recognition to introduce The 
Foreign Intelligence Surveillance Substitution Act of 2007 (pdf), to 
substitute the Federal Government for the telephone companies in 
litigation challenging the so-called Terrorist Surveillance Program. 
This is a very complex issue, and I have been discussing it at length 
with my colleagues on the Judiciary Committee. It does raise some very 
important questions, and I begin my analysis by acknowledging the good 
citizenship of the telephone companies for whatever it is that they 
have done. We still don't know all of what that is. But I do not 
believe that it is appropriate to grant what is called ``retroactive 
immunity'' because of what has occurred here.
  The legislation substitutes the U.S. in place of any electronic 
communication service company which provided communications in 
connection with an intelligence activity that was authorized by the 
President between September 11, 2001, and January 17, 2007, and 
designed to detect or prevent a terrorist attack against the U.S.
  In order for substitution to apply, the electronic communications 
service provider must have received a written request from the Attorney 
General or the head of an element of the intelligence community 
indicating that the activity was authorized by the President and 
determined to be lawful. If the provider assisted the Government beyond 
what was requested in writing, this legislation will leave the provider 
on the hook for any surplus assistance. On the other hand, the 
Government will be substituted if the Attorney General certifies that 
the electronic communications service provider did only what the 
Government asked. Once substitution occurs, Federal and State courts 
are directed to dismiss the providers from the action.
  This legislation provides that plaintiffs in these cases may continue 
to send third-party discovery requests such as Rule 45 subpoenas to the 
electronic communications service providers after they have been 
dismissed. Moreover, the bill provides that plaintiffs may also deem 
provider admissions as Government admissions in their case against the 
Government. My legislation provides that the Government will not have 
sovereign immunity in the 40 or so cases currently pending in the 
California Multi-District Litigation.
  This bill provides authority for the U.S. to remove actions from 
State court to Federal court. Notably, the legislation is intended to 
ensure that the Government can only assert those defenses the 
electronic communications companies may assert under current law. On 
the other hand, nothing in the bill is designed to increase or diminish 
the ability of the Government to assert the States Secret privilege. 
The legislation is carefully crafted so as not to disturb plaintiffs' 
standing to bring their claims against the Government.
  Now, recognizing the telephone companies are good citizens, I am 
prepared to see their involvement held to the minimum. We hear concerns 
about them being involved in litigation. Well, I don't know if there's 
much litigation

[[Page S14704]]

for them to be involved in once the Federal Government is substituted. 
Some express dismay over the continued burden of discovery. I am not 
convinced there will be much further discovery here. Some have 
expressed a reticence to having their service technicians, in-house 
counsel, and other employees called as witnesses. Yet, I don't know 
that they are necessarily going to be witnesses. We can't judge that 
  I believe there are very important--perhaps even constitutional--
privacy issues here that ought to be subjected to judicial review. We 
know that important litigation in the Federal court in San Francisco, 
Judge Walker has declined to dismiss a challenge to the Terrorist 
Surveillance Program on State secrets grounds.
  I don't think Congress can stand by, and in the face of what has 
happened, give carte blanche, a free ticket, grant retroactive immunity 
to suggest to future administrations that they can ignore separation of 
powers and they can ignore Congressional oversight and just run 
roughshod over the entire process without being held accountable. The 
better practice is to allow judicial proceedings to take their course 
and let the courts make their own determinations.
  I strongly encourage all of my colleagues, Republicans and Democrats 
alike, to carefully consider this bill as we begin to debate the 
related FISA Amendments Act of 2007.