[Congressional Record: February 11, 2008 (Senate)]
[Page S827-S844]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]
[DOCID:cr11fe08-24]
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FISA AMENDMENTS ACT OF 2007
The ACTING PRESIDENT pro tempore. Under the previous order, the
Senate will resume consideration of S. 2248, which the clerk will
report.
The bill clerk read as follows:
A bill (S. 2248) to amend the Foreign Intelligence
Surveillance Act of 1978, to modernize and streamline the
provisions of that Act, and for other purposes.
Pending:
Rockefeller-Bond amendment No. 3911, in the nature of a
substitute.
Whitehouse amendment No. 3920 (to amendment No. 3911), to
provide procedures for compliance reviews.
Feingold amendment No. 3979 (to amendment No. 3911), to
provide safeguards for communications involving persons
inside the United States.
Feingold-Dodd amendment No. 3912 (to amendment No. 3911),
to modify the requirements for certifications made prior to
the initiation of certain acquisitions.
Dodd amendment No. 3907 (to amendment No. 3911), to strike
the provisions providing immunity from civil liability to
electronic communication service providers for certain
assistance provided to the Government.
Bond-Rockefeller modified amendment No. 3938 (to amendment
No. 3911), to include prohibitions on the international
proliferation of weapons of mass destruction in the Foreign
Intelligence Surveillance Act of 1978.
Feinstein amendment No. 3910 (to amendment No. 3911), to
provide a statement of the exclusive means by which
electronic surveillance and interception of certain
communications may be conducted.
Feinstein amendment No. 3919 (to amendment No. 3911), to
provide for the review of certifications by the Foreign
Intelligence Surveillance Court.
Specter-Whitehouse amendment No. 3927 (to amendment No.
3911), to provide for the substitution of the United States
in certain civil actions.
Mr. KYL. Mr. President, today we are debating the amendments to the
Foreign Intelligence Surveillance Act. I am going to say a few words
about why Congress ought to provide legal relief to those private
entities that have aided the United States in our war against al-Qaida
and, in particular, one of the amendments that will be voted on
tomorrow.
I begin by quoting a passage in an opinion by Justice Cardozo, from
the time when he was the chief judge of the New York Court of Appeals.
In the 1928 decision Baggington v. Yellow Taxi Corp., this is what
Justice Cardozo had to say about the legal immunities that should be
provided to private parties that assist law enforcement efforts:
The rule that private citizens acting in good faith to
assist law enforcement are immune from suit ensures that the
citizenry may be called upon to enforce the justice of the
State, not faintly and with lagging steps, but honestly and
bravely and with whatever implements and facilities are
convenient and at hand.
We need to encourage citizen involvement in our efforts against al-
Qaida. We know that good intelligence is the best way to win the war
against those terrorists, and if we want to monitor al-Qaida, we need
access to the information which is available through the
telecommunications companies.
We asked them for help, and they provided that help at a critical
time, after 9/11. We need to know, for example, whether al-Qaida
terrorists are planning other attacks against us. When we ask parties
to assist us, such as those telecommunications companies that assisted
us after 9/11, we want them to reply not faintly and with lagging steps
but, rather, in Justice Cardozo's words: We want them to answer the
call honestly and bravely and with whatever implements and facilities
are conveniently at hand.
In today's technological world, what that means is that when we ask
these telecommunications companies for their support, they provide the
incredibly intricate and advanced technology at their disposal to
assist us in understanding what communications al-Qaida is having with
each other.
Now, tomorrow we are going to be voting on some amendments which, in
my view, weaken and in one case would actually strip the liability
protections the Intelligence Committee bill provides to such private
parties. I think these amendments are unwise.
Certainly, I urge my colleagues to reject them. Let me focus on one
of them today, one that relates to a subject called substitution. The
idea is that while it would be unfair to hold these telecommunications
companies responsible for coming to the aid of the Government in its
time of need, that they should be immune from liability, that we should
somehow substitute the U.S. Government in their place and that would
somehow balance the equities here of having the matter litigated and
yet protecting the telecommunication companies.
There are several reasons why this simply does not work. In the first
place, it would still be required to reveal the identity of the company
involved. Part of this entire matter is protecting the identity of the
company so it does not lose business around the world and so it is not
subject to the kind of abuse that would otherwise occur.
In addition to that, full discovery could be conducted. In other
words, depositions could be taken, interrogatories could be served. In
every respect, the company is not protected from the legal process, it
is simply not liable at the end of the day; it would only be the
Government that would be liable.
But the individuals of the company and the company itself would still
be subject to all the rigors of litigation which we are trying to
protect them from. The litigation does not go away. In addition to
that, a method has been set up to litigate this before the FISA Court,
which misunderstands what the FISA Court is. The FISA Court is not like
the Ninth Circuit Court of Appeals. The FISA Court is individual judges
called upon primarily to issue warrants that permit the Government to
engage in its intelligence operations.
So you do not have a court sitting the way you do in a typical
Federal district court or a circuit court. This FISA Court would
presumably have to litigate whether the companies are entitled to
substitution, so it is not a free substantiation but, rather, if they
can prove that they are entitled to the substitution.
Finally, the point of having this liability protection for the
Government's purpose is first and foremost because of the need to
protect its sources and methods of intelligence collection from the
enemy or from the public at large. Of course, if you still have the
litigation ongoing, if you still have the process, it is just that
Party A is liable rather than Party B.
You still have the threat that sources and methods could be
compromised, information relating to the activity could be disclosed,
as it has in the current debate. We should remind ourselves that what
we are debating publicly is a system of collection that has been, to
some extent, defined by public discussion of matters that were and
should have been totally classified.
We have given the enemy a great deal of information about how to
avoid the kind of collection that is vital to our efforts. That is the
kind of thing we are trying to prevent. So substitution, simply
substituting the Government as a party for the phone companies does not
solve that problem either. The bottom line is, that as with these other
amendments, the so-called substitution amendment is not a good
amendment, it should be rejected, and I hope at the end of the day we
will have been able to vote it down.
Let me conclude by repeating some of the things the Statement of
Administrative Policy stated in quoting the Intelligence Committee's
conclusions in its report.
Al-Qaida has not ceased to exist in years since the September 11
attacks. It still exists and it still seeks the wholesale murder of
American civilians. We know how devastating such attacks can be. And we
know that once an attack is underway--once a plane has been hijacked,
or a bomb has been assembled--it is too late. We need to stop al-Qaida
attacks before they are executed, before they are being carried out. We
need to act at a time when such attacks are still being planned or when
al-Qaida terrorists are still being prepared.
To gather this type of intelligence--the intelligence needed to stop
a terrorist attack--we will need the assistance of private parties.
Information about al-Qaida's communications, its travel, and other
activities often is in the hands of private parties. If we want to
monitor al-Qaida we will need access to information. And when
telecommunications companies or others are asked for their help in
tracking, for example, an al-Qaida cell that may be operating in this
country, we do not want those parties to reply ``faintly and with
lagging steps.'' Rather, in
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Justice Cardozo's words, we want them to answer the call for assistance
``honestly and bravely and with whatever implements and facilities are
convenient at hand.''
The Senate Intelligence Committee bill contains provisions that
ensure that results that future requests for assistance will be met
``honestly and bravely,'' rather than with fear of becoming embroiled
in litigation. Tomorrow the Senate will be voting on amendments that
seek to strip out or weaken the legal protections that the Intelligence
Committee bill provides to private parties that assist antiterrorism
investigations. These amendments are unwise, and I would strongly urge
my colleagues to reject them.
As the Statement of Administration Policy on the Judiciary Committee
bill notes, the failure to provide strong legal protections to private
parties would undermine U.S. efforts to respond to and stop al-Qaida in
two ways: first, it allows the continuation of litigation that has
already resulted in leaks that have done serious damage to U.S.
counterterrorism efforts. This litigation is inherently and inevitably
damaging to U.S. efforts to monitor al-Qaida's communications. As one
Intelligence Committee aide aptly characterized the situation, allowing
this litigation to go forward would be the equivalent of allowing the
legality of the Enigma code-breaking system to be litigated during
World War II.
In addition, the failure to provide protection to third parties who
have assisted the United States would undermine the willingness of such
parties to cooperate with the Government in the future. And such
cooperation is essential to U.S. efforts to track al-Qaida. As the SAP
on this bill further explains:
In contrast to the Senate Intelligence Committee bill, the Senate
Judiciary Committee substitute would not protect electronic
communication service providers who are alleged to have assisted the
Government with communications intelligence activities in the aftermath
of September 11th from potentially debilitating lawsuits. Providing
liability protection to these companies is a just result. In its
Conference Report, the Senate Intelligence Committee ``concluded that
the providers . . . had a good faith basis for responding to the
requests for assistance they received.''
The Committee further recognized that ``the Intelligence Community
cannot obtain the intelligence it needs without assistance from these
companies.'' Companies in the future may be less willing to assist the
Government if they face the threat of private lawsuits each time they
are alleged to have provided assistance.
The Senate Intelligence Committee concluded that: ``The possible
reduction in intelligence that might result from this delay is simply
unacceptable for the safety of our Nation.'' Allowing continued
litigation also risks the disclosure of highly classified information
regarding intelligence sources and methods. In addition to providing an
advantage to our adversaries by revealing sources and methods during
the course of litigation, the potential disclosure of classified
information puts both the facilities and personnel of electronic
communication service providers and our country's continued ability to
protect our homeland at risk. It is imperative that Congress provide
liability protection to those who cooperated with this country in its
hour of need.
The ramifications of the Judiciary Committee's decision to afford no
relief to private parties that cooperated in good faith with the U.S.
Government in the immediate aftermath of the attacks of September 11
could extend well beyond the particular issues and activities that have
been of primary interest and concern to the Committee. The Intelligence
Community, as well as law enforcement and homeland security agencies,
continue to rely on the voluntary cooperation and assistance of private
parties. A decision by the Senate to abandon those who may have
provided assistance after September 11 will invariably be noted by
those who may someday be called upon again to help the Nation.
Many members of the Senate Majority insist that there be stringent
congressional oversight of these intelligence-collection programs. No
one disputes that point. All agree that we need oversight over the
intelligence agencies. That is why this Congress and previous
Congresses have agreed on a bipartisan basis to create robust oversight
of U.S. intelligence gathering, even when such intelligence gathering
is directed at foreign targets. The agencies executing wiretaps and
conducting other surveillance must report their activities to Congress
and to others, so that opportunities for domestic political abuse of
these authorities are eliminated.
I conclude by asking: what is the Senate's goal? Do we want to allow
our intelligence agencies to be able to obtain the assistance of
telecommunications companies and other private parties when those
agencies are investigating al-Qaida? If so, then we need to create a
legal environment in which those companies will be willing to
cooperate--an environment in which their patriotic desire to assist the
United States does not conflict with their duties to their shareholders
to avoid expensive litigation.
We need to write the laws to ensure against the domestic political
abuse of surveillance authority, and we have done that. The question
now is whether we want to give our intelligence agents the tools that
they need to track al-Qaida. We should do so, and in order to do so, we
must defeat amendments that would weaken the bill's legal protections
for private parties who assist the government's efforts against al-
Qaida.
To conclude, we obviously want to write our laws to ensure that in
intelligence collection, and any kind of this activity, the rights of
American citizens are fully protected, that we protect against domestic
political abuse of surveillance authority. We have done that.
The question now is whether we want to give our intelligence agencies
the tools they need to track al-Qaida and other terrorists. We should
do so, and in order to do so, we have to defeat amendments that would
weaken the Intelligence Committee bill, which lays out a good process
for balancing the equities involved and ensuring that we have provided
not only the Government agencies what they need to do the job we have
asked them to do but also to protect the private parties whom the
Government has asked to volunteer to help and which up to now they have
been able to do because they felt that what they did would be protected
from liability.
Without that liability protection, the kind of negative results would
occur which I have identified.
So I hope that when this substantiation amendment comes before us,
we will vote it down and that we will also reject the other amendments
which are designed to weaken the Intelligence Committee FISA bill.
Mr. HATCH. Would the Senator from California yield for a unanimous
consent request?
Mrs. FEINSTEIN. I will yield.
Mr. HATCH. I ask unanimous consent that I be permitted to speak
immediately following the Senator from California.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Amendment No. 3910
Mrs. FEINSTEIN. Mr. President, I rise to speak on two of the
amendments in the list of amendments to be voted on tomorrow. The first
is amendment 3910. That relates to making the Foreign Intelligence
Surveillance Act the exclusive authority for conducting electronic
surveillance. This is cosponsored by Chairman Rockefeller, Chairman
Leahy, by Senators Nelson of Florida, Whitehouse, Wyden, Hagel,
Menendez, Snowe, Specter, Salazar, and I ask unanimous consent to add
Senator Cantwell to that list.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. FEINSTEIN. For the information of my colleagues, I do not intend
to modify this amendment, and so I will be seeking a vote on the
amendment as it is currently drafted.
I voted in support of the FISA bill as a member of the Intelligence
Committee. But I made clear in that committee, as well as in statements
called additional views, which are attached to the report of the bill,
that I coauthored with Senators Snowe and Hagel that changes were
necessary.
In the Judiciary Committee, we were able to secure improvements to
the Intelligence Committee's bill that I believed were needed. Most
importantly,
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the Judiciary Committee added strong exclusivity language similar to
the amendment I have now before the Senate.
Unfortunately, the Judiciary package was not adopted on the floor. So
the amendments we present are designed to restore the exclusivity
language I believe is vital to FISA and goes to the heart of the debate
on this bill, which is whether this President or any other President
must follow the law.
With strong exclusivity language, which is what we try to add, we
establish a legislative record that the language and the intent of the
Congress compels a President now and in the future to conduct
electronic surveillance of Americans for foreign intelligence purposes
within the parameters and confines of this legislation.
The amendment makes the following important changes to the bill:
First, it reinforces the existing FISA exclusivity language in title
18 of the U.S. Code by restating what has been true in the statute
since 1978--that FISA is the exclusive means for conducting electronic
surveillance, period. So legislative intent is clear.
Second, the amendment answers the so-called AUMF; that is, the
authorization to use military force loophole used by the President to
circumvent FISA.
What is that? The administration has argued that the authorization of
military force against al-Qaida and the Taliban implicitly authorized
warrantless electronic surveillance. This is an argument embroidered on
fiction, made up from nothing.
Nonetheless, the executive has chosen to use it.
Under our amendment, it will be clear that only an express statutory
authorization for electronic surveillance in future legislation shall
constitute an additional authority outside of FISA. In other words, if
you are going to conduct surveillance outside of FISA, there has to be
a law that specifically enables you to do so. Otherwise, you stay
within FISA.
Third, the amendment makes a change to the penalty section of FISA.
Currently, FISA says it is a criminal penalty to conduct electronic
surveillance except as authorized by statute. This amendment specifies
that it is a criminal penalty to conduct electronic surveillance except
as authorized by FISA or another express statutory authorization. This
means that future surveillance conducted under an AUMF or other general
legislation would bring on a criminal penalty. So follow the law or
else there is a criminal penalty.
Fourth, the amendment requires more clarity in a certification the
Government provides to a telecommunications company when it requests
assistance for surveillance and there is no court order. Henceforth,
the Government will be required to specify the specific statute upon
which the authority rests for a request for assistance.
I believe our amendment will strengthen the exclusivity of FISA. I
believe it is critical. Without this strong language, we run the risk
that there will be future violations of FISA, just as there have been
present violations of FISA. History tells us that this is very
possible.
Let me go into the history for a minute because it is interesting how
eerily similar events of the past were to events of today. Let me tell
this body a little bit about something called Operation Shamrock.
In its landmark 1976 report, the Church Committee disclosed, among
other abuses, the existence of an Operation titled ``Shamrock.'' What
was Shamrock? It was a program run by the NSA and its predecessor
organizations from August of 1945 until May of 1975. That is, for 30
years, the Government received copies of millions of international
telegrams that were sent to, from, or transiting the United States. The
telegrams were provided by major communications companies of the day--
RCA Global and ITT World Communications--without a warrant and in
secret. A third company, Western Union International, provided a lower
level of assistance as well.
It is estimated that at the height of the program, approximately
150,000 communications per month were reviewed by NSA analysts. So
telegrams coming into the country and going out of the country all went
through NSA.
According to the Church Committee report, the companies agreed to
participate in the program, despite warnings from their lawyers,
provided they received the personal assurance of the Attorney General
and later the President that they would be protected from lawsuit.
The NSA analyzed the communications of Americans in these telegrams
and disseminated intelligence from these communications in its
reporting.
If all of this history sounds eerily familiar, it should. The
parallels between Shamrock and the Terrorist Surveillance Program are
uncanny, especially when one considers that FISA was passed in 1978 as
a direct result of the Church Committee's report. Yet here we are, same
place, again today.
Almost immediately after the Church Committee's report was unveiled,
Congress went to work on what is now the Foreign Intelligence
Surveillance Act to put an end to warrantless surveillance of
Americans. FISA states that when you target surveillance on Americans,
you need a court order, period.
Some of my colleagues argue that FISA was not the exclusive authority
since 1978 and that the President has inherent article II authorities
to go around FISA.
On the first point, the legislative history and congressional intent
from 1978 is clear: Congress clearly intended for FISA to be the
exclusive authority under which the executive branch may conduct
electronic surveillance.
Let me read what the Congress wrote in 1978 in report language
accompanying the bill:
[d]espite any inherent power of the President--
That means despite any article II authority--
to authorize warrantless electronic surveillance in the
absence of legislation, by this bill and chapter 119 of title
18, Congress will have legislated with regard to electronic
surveillance in the United States, that legislation with its
procedures and safeguards, prohibits the President,
notwithstanding any inherent powers, from violating the terms
of that legislation.
That is the report language written in 1978.
The congressional debate also took on the Supreme Court's decision in
the Keith case in which the Court ruled that since Congress hadn't
enacted legislation in this area at that time, then it simply left
the Presidential powers where it found them. Right? Wrong. In response
to the Court's decision, the 1978 congressional report stated the
following:
The Foreign Intelligence Surveillance Act, however, does
not simply leave Presidential powers where it finds them. To
the contrary, this bill would substitute a clear legislative
authorization pursuant to statutory, not constitutional,
standards.
Clear. Distinct. Definitive.
It is important that the record here today clearly reiterates that in
1978 there was an unambiguous position that FISA was the exclusive
authority under which electronic surveillance of Americans could be
conducted. This was in the bill language and the report language as
passed by the 95th Congress.
But FISA's exclusivity was recognized not just by the Congress. The
executive branch also agreed that FISA was controlling and that any and
all electronic surveillance would be conducted under the law.
President Carter at the time issued a signing statement to the bill.
This wasn't a signing statement like we see today. It was not used to
express the President's disagreement with the law or his intent not to
follow part of the law. Rather, President Carter used his statement to
explain his understanding of what the law meant.
Here it is in direct quote:
The bill requires, for the first time, a prior judicial
warrant for all electronic surveillance for foreign
intelligence or counterintelligence purposes in the United
States in which communications of U.S. persons might be
intercepted.
Again, clear, distinct, definitive.
By issuing this statement, President Carter and the executive branch
affirmed not only Congress's intent to limit when the executive branch
could conduct surveillance, but it ratified that Congress had the power
to define the parameters of executive authority in this area.
So there was an abuse--Operation Shamrock--similar to this incident
with the telecoms today, followed by a clear act of Congress in passing
FISA,
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followed by a clear statement of the executive affirming the meaning of
FISA. Together, these acts were taken to end the exercise of unchecked
executive authority. Here we are, back in 1978 today.
Despite the 1978 language and Congress's clear willingness to amend
FISA to make it apply to the new war against terrorism early in its
tenure, the Bush administration decided that it would act outside the
law. This was a conscious decision. Not one part of FISA was ever tried
to be put under the auspices of the FISA law and the Foreign
Intelligence Surveillance Court. That was both wrong and unnecessary.
To justify this mistake, the Department of Justice developed a new
convoluted argument that Congress had authorized the President to go
around FISA by passing the authorization for use of military force
against al-Qaida and the Taliban. Can anybody really believe that?
This, too, was wrong. I was there. I sat in most meetings. I defy
anybody in this body to come forward and tell me privately or publicly
that going around FISA was ever contemplated by the AUMF. In fact, it
was not. It was never even considered.
Apparently not confident of its AUMF argument, the administration
decided to also assert a broad theory of Executive power, premised on
Article II of the Constitution. These are the powers of the President.
Under this argument, the Bush administration asserted that despite
congressional action, the President has the authority to act
unilaterally and outside of the law if he so chooses, simply by virtue
of his role as Commander in Chief. While Presidents throughout history
all tried to expand their power, this new twist would place the
President of the United States outside the law. Taken to its logical
conclusion, if the Congress cannot enact statutes that the President
must follow, then he is above the law. I disagree with that position. I
do not believe anyone can be above the rule of law. But I am not the
only one.
Justice Jackson described it best in his Youngstown opinion. In 1952,
against the backdrop of the Korean war, the Supreme Court addressed the
issue of when congressional and executive authorities collide in the
Youngstown Sheet and Tube Company v. Sawyer. The question presented in
Youngstown was whether President Truman was acting within his
constitutional powers when he issued an order directing the Secretary
of Commerce to take possession of and operate most of the Nation's
steel mills. In other words, the Government was going to take over the
steel mills.
The Truman administration argued that the President was acting within
his inherent power as Commander in Chief in seizing the steel mills,
since a proposed strike by steelworkers would have limited the Nation's
ability to produce the weapons needed for the Korean war.
The Bush administration today is making the very same argument. It is
asserting that the President's constitutional authorities as Commander
in Chief trump the law. However, in a 6-to-3 decision in Youngstown,
the Supreme Court held that President Truman exceeded his
constitutional authority. Justice Jackson authored the famous
concurring opinion, setting forth the three zones into which
Presidential actions fall.
The first zone: When the President acts consistently with the will of
Congress, the President's power is at its greatest.
Two: When the President acts in an area in which Congress has not
expressed itself, there is an open question as to the scope of
congressional and Presidential authority. So we know the first two.
The third zone: When the President acts in contravention of the will
of Congress, Presidential power is at its lowest.
That is where we are right now. Clearly, President Bush acted outside
of the scope of the law. According to Youngstown, his power is at its
lowest. The only way to test that is to bring a case before the Supreme
Court again. But the fact the Court ruled against Truman in a situation
of war--in a situation where a strike would have shut down the steel
mills, when Truman tried to use his commander in chief authority to
seize the steel mills, the Court said: You cannot do that, and then it
went on to define the different zones of Presidential authority. It is
a big opinion, and it is one which is often quoted in our judicial
hearings on Supreme Court nominees.
Justice Jackson also wrote:
When the President takes measures incompatible with the
expressed or implied will of Congress--
Which is this case--
his power is at its lowest ebb, for then he can rely only on
his constitutional powers, minus any constitutional powers of
Congress over the matter.
Now, this is key, this last part: Although Justice Jackson's opinion
was not binding at the time, the Supreme Court has since adopted it as
a touchstone for understanding the dimensions of Presidential power.
The Youngstown case is as important today as it was then.
That is why I am proposing this amendment. I want to make it crystal
clear, and my cosponsors want to make it crystal clear, that Congress
has acted to prohibit electronic surveillance on U.S. persons for
foreign intelligence purposes outside of FISA, and this amendment does
that.
One day this issue is going to be before the Court, and on that day I
want the Justices to be able to go back and see the legislative intent;
the legislative intent as it was in the Judiciary Committee, the
legislative intent as it is here on the floor, and the legislative
intent of this amendment to strengthen the exclusivity parts of FISA.
What we have here is a case of history repeating itself: abuse
followed by a clear statement from Congress, then another abuse with
the Terrorist Surveillance Program. It too should be followed by a
clear statement from Congress.
Now is the time for the Congress of the United States to reassert its
constitutional authorities and pass a law that clearly and
unambiguously prohibits warrantless surveillance outside of FISA. Now
is the time to say that no President, now or in the future, can operate
outside of this law.
I mentioned that in 2001 the President chose to go outside of FISA.
In January of 2007, after the Intelligence Committee learned about the
full dimensions of the law, guess what. The executive branch brought it
to the Court and bit by bit put the program under the Foreign
Intelligence Surveillance Court. Today, the entire program is within
the parameters of the Foreign Intelligence Surveillance Court.
What I am saying to this body is it was a terrible misjudgment not to
do so in 2001, because I believe the Foreign Intelligence Surveillance
Court would have given permission to the program. So I believe this
amendment is absolutely crucial, and I very much hope it will pass
tomorrow.
Now, if I may, I wish to speak in support of my amendment to replace
the full immunity in the underlying bill with a system of FISA Court
review. This is amendment No. 3919. I am joined in this amendment by
Senators Bill Nelson, Ben Cardin, and Ken Salazar. I ask unanimous
consent to add Senator Whitehouse as a cosponsor, and I know that
Senator Whitehouse wishes to come to the floor to speak to this
amendment.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mrs. FEINSTEIN. This amendment is about allowing a court to review
the request for immunity for the telecommunications companies, but in a
way that is carefully tailored to meet this unique set of suits. It
allows for the good faith defense if the companies reasonably believed
the assistance they provided the Government was legal.
As Members know, the FISA Court comprises 11 Federal district court
judges appointed by the Chief Justice. It has heard thousands of
applications for FISA warrants and has recently made determinations on
the executive's procedures under the Protect America Act. In January of
2007, the Court put the entire Terrorist Surveillance Program under its
jurisdiction. Its judges and its staff are experts in surveillance law,
and the Court protects national security secrets.
Let me describe the amendment briefly. Under this amendment, the FISA
Court is directed to conduct a tailored, three-part review.
Part one: The FISA Court will determine whether a telecommunications
company actually provided the assistance to the Federal Government as
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part of the Terrorist Surveillance Program. If not, those cases are
dismissed. So if you didn't give help and you have litigation pending,
the case is dismissed, period.
Second: If assistance was provided, the Court would review the
request letters sent from the Government to the companies every 30 to
45 days. The FISA Court would then have to determine whether these
letters, in fact, met the requirements of the applicable law. There is
law on this. It is part of FISA. It is 18 U.S.C. 2511. If they met the
requirements, the cases against the companies are dismissed.
Now, let me tell my colleagues what the law says. Sections
2511(2)(a)(ii)(A) and (ii)(B) state that companies are allowed to
provide assistance to the Government if they receive a certification in
writing by a specified person (usually the Attorney General or a law
enforcement officer specifically designated by the Attorney General).
The certification is required to state that no warrant or court order
is required by law, that all statutory requirements have been met, and
that the specified assistance is required by the Government. Now that
is what the law says. It is short, it is succinct, it is to the point.
The question is: Do the specifics of the actual documents requesting
assistance meet the letter of this law with respect to contents and
timing. If they did, the companies would be shielded from lawsuits.
Why? Because that is the law. That is what the law says. No one would
want us not to follow the law.
Finally, in any case where the defendant company did provide
assistance but did not have a certification that complied with the
requirements I have read, the FISA Court would assess whether the
company acted in good faith, as has been provided under common law.
There are several cases of common law that describe what is called
the good faith defense--the U.S. v. Barker, Smith v. Nixon, Halperin v.
Kissinger, and Jacobson v. Bell Telephone. So there is common law on
the subject.
There would be at least three lines of defense for defendant
companies in this situation. They could argue that the assistance was
lawful under the statutes other than 18 U.S.C. 2511--the law I have
cited; that they believed, perhaps wrongly, that the letters from the
Government were lawful certifications; or that complying with the
request for assistance was lawful because the President had article II
authority to conduct this surveillance. They could make their
arguments, and the plaintiffs, against the defendant companies, could
make their arguments.
In this case, the FISA Court would then determine whether the company
acted in good faith and whether it had an objectively reasonable belief
that compliance with the Government's written request or directives for
assistance were lawful. If the Court finds that the company met this
standard, the lawsuits would be dismissed.
I believe this very narrow three-part test strikes the right balance
between the competing interests in the immunity debate. This amendment
neither dismisses the cases wholesale, nor does it allow the cases to
proceed if the companies had an objectively reasonable belief that
their compliance was lawful.
Let me point out for a moment some of the history relevant to this
issue.
First: Requests for assistance from the Government to the telecoms
came about 1 month following the worst terrorist attack against our
Nation. That is fact. There was an ongoing acute national threat. That
is a fact. The administration was warning that more attacks might be
imminent. That was fact. And we now know that there was a plot to
launch a second wave of attacks against the west coast.
Two: Certain telecom companies received letters every 30 to 45 days
from very senior Government officials. That is fact. I have read them.
The letters said the President had authorized their assistance. That is
fact. They also said the Attorney General had confirmed the legality of
the program. That is fact. These assurances were from the highest
levels of the Government.
Third: Only a very small number of people in these companies had the
security clearances to be allowed to read the letters, and they could
not consult others with respect to their legal responsibility, nor are
these telecommunication company executives expert in separation of
powers law--either article II legal arguments or the flawed AUMF
argument.
Fourth: As I mentioned, common law has historically provided that if
the Government asks a private party for help and makes such assurances
that help is legal, the person or company should be allowed to provide
assistance without fear of being held liable. That is true. Common law
does this. One would think this would be especially true in the case of
protecting our Nation's security.
Fifth, taking no legislative action on the pending cases ignores the
fact that these companies face serious, potentially extraordinarily
costly litigation but are unable at the present time to defend
themselves in court. The Government has invoked the state secrets
defense.
Now, this is a sort of insidious defense. It places the companies in
a fundamentally unfair place. Individuals and groups have made
allegations to which companies cannot respond. They cannot answer
charges, nor can they respond to what they believe are misstatements of
fact and untruths.
Bottom line, they cannot correct false allegations or misstatements,
they cannot give testimony before the court, and they cannot defend
themselves in public or in private.
While I have concerns about striking immunity altogether or
substituting the Government for the companies, I don't believe full
immunity is the best option without having a court review the
certification and the good-faith defense.
Currently, under FISA there is a procedure that allows the Government
to receive assistance from telecommunications companies. As I have
already described, title 18 of the U.S. Code, section 2511, states that
the Government must provide a court order or a certification in writing
that states:
No warrant or court order is required by law, that all
statutory requirements have been met, and that the specified
assistance is required, setting forth the period of time
during which the provision of the information, facilities, or
technical assistance is authorized and specifying the
information, facilities, or technical assistance required. .
. .
That is it. Under the law, these are the circumstances under which a
telecommunications company may provide information and services to the
Government. Unfortunately, the administration chose not to go to the
FISA Court in the fall of 2001 for a warrant. I will never understand
why. Instead, it asserted that Article II of the Constitution allowed
the President to act outside of FISA.
However, as I said, by January of 2007--more than 5 years later--the
entire Terrorist Surveillance Program was, in fact, brought under the
FISA Court's jurisdiction. So, ultimately, the administration agreed
that the program can and should be conducted under the law.
Senators Nelson, Cardin, Salazar, Whitehouse, and I believe the
question of whether telecommunications companies should receive
immunity should hinge on whether the letters the Government sent to
these companies met the requirements of 18 U.S.C. 2511 or, if not, if
the companies had an objectionably reasonable belief their assistance
was lawful, and what that objective belief was.
In other words, we should not grant immunity if companies were
willingly and knowingly violating the law.
So the best way to answer this question is to allow an independent
court, skilled in intelligence matters, to review the applicable law
and determine whether the requirements of the law or the common law
principle were, in fact, met. If they were, the companies would receive
immunity; if not, they would not. But a court would make that decision,
not a body, some of whom have seen the letters but most of whom have
not. But it would be a court that is skilled in this particular kind of
law.
I want to briefly comment on procedure. I very much regret that this
amendment faces a 60-vote threshold when the other two amendments
relating to telecom immunity face majority votes. Clearly, someone was
afraid this might get a majority vote and, therefore, they put on a 60-
vote requirement.
This, I believe, is prejudicial, and it places a higher burden on
this amendment. And the irony is, this amendment could be an acceptable
solution
[[Page S832]]
for the other House, which has passed a bill that doesn't contain any
provisions for immunity and has said they would not provide any
provision for immunity. This is the way to handle that particular
issue.
I, therefore, urge my colleagues to support this amendment both on
the merits and so that we can finish the FISA legislation. I hope the
conferees will take a strong vote on this amendment--whether it reaches
60 Senators to vote aye or not--as a signal that it is a good solution
when the legislation goes to conference.
Mr. President, I ask for the yeas and nays on both of these
amendments.
The ACTING PRESIDENT pro tempore. Is there objection to asking for
the yeas and nays on the two amendments at this time?
Without objection, it is so ordered.
Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
The ACTING PRESIDENT pro tempore. The Senator from Utah is
recognized.
Mr. HATCH. Mr. President, for the last 6 months I have come to the
floor on numerous occasions to offer my support of the limited immunity
provisions in the Rockefeller-Bond bill.
In addition to my views on this subject, there are countless
Americans who have expressed their support for the immunity provision.
In fact, I ask unanimous consent to have printed in the Record a
letter sent to the Senate leadership last month, which is signed by 21
State attorneys general, which expresses their strong support for the
immunity provision included in this bill.
There being no objection, the material was ordered to be printed in
the Record, as follows:
December 11, 2007.
RE FISA Amendments Act of 2007 (S. 2248).
Hon. Harry Reid,
Senate Majority Leader,
Washington, DC.
Hon. Mitch McConnell,
Senate Minority Leader,
Washington, DC.
Dear Majority Leader Reid and Minority Leader McConnell: We
understand that the Senate will soon consider S. 2248, the
FISA Amendments Act of 2007, as recently reported by the
Senate Select Committee on Intelligence. Among other things,
the bill would directly address the extensive litigation that
communications carriers face based on allegations that they
responded to requests from the government regarding certain
intelligence-gathering programs. For a number of reasons, we
support these carefully crafted provisions of the bill that
the Intelligence Committee adopted on a bi-partisan basis.
First, protecting carriers from this unprecedented legal
exposure is essential to domestic and national security.
State, local and federal law enforcement and intelligence
agencies rely heavily on timely and responsive assistance
from communications providers and other private parties;
indeed, this assistance is utterly essential to the agencies'
functions. If carriers and other private parties run the risk
of facing massive litigation every time they assist the
government or law enforcement, they will lack incentives to
cooperate, with potentially devastating consequences for
public safety.
Second, the provisions of the bill are consistent with
existing, long-standing law and policy. Congress has long
provided legal immunity for carriers when, in reliance on
government assurances of legality or otherwise in good faith,
they cooperate with law enforcement and intelligence
agencies. But because the government has invoked the ``state
secrets privilege'' with respect to the subject matter of the
cases, the carriers are disabled from mounting an effective
defense, they are not permitted to invoke the very immunities
written into the law for their benefit, and they cannot rebut
the media storm that has damaged the companies' reputations
and customer relationships. The immunity provisions of S.
2248 would overcome this paradox, but not simply by
dismissing the pending cases outright. Instead, they would
establish a thoughtful, multi-step process involving
independent review by the Attorney General and the courts
that, only when completed, would lead to dismissal of the
claims.
Third, cases against the carriers are neither proper nor
necessary avenues to assess the legality of the government's
intelligence-gathering programs. Government entities or
officials are already parties in over a dozen suits
challenging the legality of the alleged programs, and the
immunity provisions in S. 2248 would have no impact on these
claims. In short, Congress should not, in a rush to hold the
government accountable for alleged wrongdoing, burden these
carriers with the substantial reputational damage and
potentially ruinous liability that could flow from these
suits. If these alleged programs were legally infirm, the
government, not private actors who acted in good faith and
for patriotic reasons, should answer for them.
For these reasons, we urge that any FISA-reform legislation
adopted by the Senate include the carrier-immunity provisions
currently contained in S. 2248.
Hon. W.A. Drew Edmondson, Attorney General of Oklahoma;
Hon. J.B. Van Hollen, Attorney General of Wisconsin;
Hon. John Suthers, Attorney General of Colorado; Hon.
Patrick Lynch, Attorney General of Rhode Island; Hon.
Bill McCollum, Attorney General of Florida; Troy King,
Attorney General of Alabama; Hon. Dustin McDaniel,
Attorney General of Arkansas; Hon. Thurbert E. Baker,
Attorney General of Georgia; Hon. Paul Morrison,
Attorney General of Kansas; Hon. Kelly Ayotte, Attorney
General of New Hampshire.
Hon. Jon Bruning, Attorney General of Nebraska; Hon.
Wayne Stenehjem, Attorney General of North Dakota; Hon.
Roy Cooper, Attorney General of North Carolina; Hon.
Henry McMaster, Attorney General of South Carolina;
Hon. Tom Corbett, Attorney General of Pennsylvania;
Hon. Greg Abbott, Attorney General of Texas; Hon. Larry
Long, Attorney General of South Dakota; Hon. Bob
McDonnell, Attorney General of Virginia; Hon. Mark
Shurtleff, Attorney General of Utah; Hon. Darrell
McGraw, Attorney General of West Virginia; Hon. Bob
McKenna, Attorney General of Washington.
Mr. HATCH. Mr. President, here is the list of the attorneys general
who signed this letter endorsing the immunity provision in the original
Rockefeller-Bond bill. They are attorneys general from the States of
Wisconsin, Rhode Island, Oklahoma, Colorado, Florida, Alabama,
Arkansas, Georgia, Kansas, Utah, Texas, New Hampshire, Virginia, North
Dakota, North Carolina, South Carolina, Pennsylvania, South Dakota,
Nebraska, West Virginia, and Washington.
In addition, I ask unanimous consent to have printed in the Record
four letters sent from law enforcement organizations, all in support of
the immunity provision of the bill.
There being no objection, the material was ordered to be printed in
the Record, as follows:
National Sheriff's Association,
Alexandria, VA, November 13, 2007.
Hon. Patrick J. Leahy
Chairman, Committee on the Judiciary, U.S. Senate,
Washington, DC.
Hon. Arlen Specter,
Ranking Member, Committee on the Judiciary, U.S. Senate,
Washington, DC.
Dear Chairman Leahy and Ranking Member Specter: On behalf
of the National Sheriffs' Association (NSA), I am writing to
urge you to support Section 202 of the FISA Amendments Act of
2007 (S. 2448). This extension of retroactive immunity under
the terms referenced in this section would have a significant
impact on the cooperative relationship between the government
and the private companies to safeguard public safety.
As you know, the electronic surveillance for law
enforcement and intelligence functions depends in great part
on the cooperation of the private companies that operate the
nation's telecommunication system. Section 202 would provide
much needed liability relief to electronic communication
service providers that assisted the intelligence community to
implement the President's surveillance program in the
aftermath of September 11, 2001. The provision of retroactive
immunity would help ensure that these providers who acted in
good faith to cooperate with the government when provided
with lawful requests in the future.
The nation's sheriffs recognize the critical role that
electronic communication service providers play in assisting
intelligence officials in national security activities.
However, given the scope of the current civil damages suits,
we are gravely concerned that, without retroactive immunity,
the private sector might be unwilling to cooperate with
lawful government requests in the future. The possible
reduction in intelligence that might result from protracted
litigation is unacceptable for the security of our citizens.
As the Senate considers the FISA Amendments Act of 2007, we
strongly urge you to help preserve the cooperative
relationship between law enforcement and the private sector
by supporting Section 202.
Sincerely,
Sheriff Craig Webre,
President.
____
The National Troopers Coalition,
Washington, DC, November 12, 2007.
Hon. Patrick J. Leahy,
Chairman, Senate Judiciary Committee, Washington, DC.
Hon. Arlen Specter,
Ranking Member, Senate Judiciary Committee, Washington, DC.
Dear Chairman Leahy and Ranking Member Specter: As the
Senate Judiciary Committee gets set to consider legislation
that would update the Foreign Intelligence Surveillance Act
(FISA), the National Troopers Coalition wishes to express its
support for Section 202 of the FISA Amendments Act of 2007.
This section is of particular importance to the NTC and law
enforcement in general
[[Page S833]]
because it will have a significant impact on the cooperative
relationship between government and the private sector in
relation to public safety.
Section 202 provides much needed relief from mass tort
litigation relief to telecommunications companies that helped
protect our nation after the horrific attacks of September
11, 2001. Should this narrow provision not be adopted, we
believe that all levels of law enforcement will suffer by
losing the cooperation of vital allies in our ongoing fight
againt crime. The chilling effect will be that businesses may
feel compelled to avoid the risk of litigation by declining
to cooperate with law enforcement even though they have every
reason to believe the request is lawful.
In the weeks following the 9/11 attacks, some
telecommunications companies were apparently asked by the
President for their assistance with intelligence activities,
aimed at preventing similar attacks in the future. These
companies were assured that their compliance was necessary
and deemed lawful by the Attorney General. Upon complying
with the government's request, and providing information that
would keep the American people safe, these companies now face
the prospect of years of litigation, even though they cannot
defend themselves in court due to the highly classified
nature of the governmental program they were assured was
legal. This is disheartening, to say the least.
The nation's State Troopers understand the vital role that
private businesses play in emergency situations and criminal
investigations, and we are concerned that if these companies
continue to be dragged through costly litigation for having
responded in these circumstances, it will deter their
voluntary cooperation with law enforcement authorities in the
future. When it comes to protecting the public from
terrorists, sophisticated international gangs and on-line
predators, government counts on its private sector partners
for help. We cannot afford to send the message that if you
cooperate with law enforcement you will be sued.
As the Senate considers this legislation, we strongly urge
you to help preserve the cooperative relationship between law
enforcement and private businesses by supporting Section 202.
Sincerely,
Dennis J. Hallion,
Chairman.
____
National Narcotic Officers'
Association's Coalition,
West Covina, CA, November 14, 2007.
Re Support for Section 202 of the FISA Amendments Act of 2007
Hon. Patrick Leahy,
Chairman, Senate Committee on the Judiciary, Washington, DC.
Hon. Arlen Specter,
Ranking Member, Senate Committee on the Judiciary,
Washington, DC.
Dear Chairman Leahy and Ranking Member Spector: I am
writing on behalf of the forty-four state narcotic officers'
associations and the more than 69,000 law enforcement
officers represented by the National Narcotic Officers'
Associations' Coalition (NNOAC) to encourage your strong
support for Section 202 of the FISA Amendments Act of 2007.
Section 202 provides much-needed relief from mass tort
litigation towards telecommunications companies that helped
protect our nation after the horrific attacks of September
11, 2001. Should this provision not be adopted, we believe
that federal, state and local law enforcement will suffer by
losing important voluntary cooperation of allies in our
national fight against crime. Private corporations and
business may decide to avoid the risk of litigation by
declining to cooperate with law enforcement--even if they
have every reason to believe the request for their help is
lawful and just.
The NNOAC understands and appreciates the vital role that
private businesses play in emergency situations and criminal
investigations. Our membership is very concerned that if
these corporate entities continue to be dragged through
costly litigation for having responded during dire
circumstances--like the terrorist attacks occurring on
September 11, 2001--it will have a chilling effect on the
private sector's voluntary cooperation with law enforcement
in the future. The United States government cannot afford to
send the message to corporate America that if you cooperate
with law enforcement and the office of the United States
Attorney General, you will get sued.
Thank you for your consideration of this important
provision and your continued support towards law enforcement.
I am happy to discuss this issue further.
Sincerely,
Ronald E. Brooks,
President.
____
International Association
of Chiefs of Police,
Alexandria, VA, November 15, 2007.
Hon. Patrick Leahy,
Chair, Committee on the Judiciary, U.S. Senate, Washington,
DC.
Dear Chairman Leahy: As President of the International
Association of Chiefs of Police (IACP), I am writing to
express my support for Section 202 of the FISA Amendments Act
of 2007. This section is of particular importance to law
enforcement because it will have a significant impact on the
vital cooperative relationship between government and the
private sector that is necessary to promote and protect
public safety.
As you know, Section 202 provides relief from litigation to
telecommunications companies that responded to the
government's request for assistance following the horrific
attacks of September 11, 2001. It is my belief that failure
to adopt this provision could jeopardize the cooperation of
vital allies in our ongoing fight against crime and
terrorism. Businesses often feel compelled to avoid the risk
of litigation by declining to cooperate with law enforcement
even though they have every reason to believe the request is
lawful.
Police chiefs understand the vital role that private
businesses often play in emergency situations and criminal
investigations, and we are concerned that if these companies
are faced with the threat of litigation for responding in
these circumstances, it will have a chilling effect on their
voluntary cooperation with law enforcement authorities in the
future.
At this critical time in history, when federal, state,
tribal and local law enforcement agencies are striving to
protect the public from terrorists, sophisticated
international gangs, online predators, and other violent
criminals, it is extremely important that we be able to rely
on the private sector for much needed assistance.
Therefore, as the Senate considers this legislation, I urge
you to help preserve the cooperative relationship between law
enforcement and private businesses by supporting Section 202.
Thank you for your attention to this important matter and
for your efforts on behalf of law enforcement.
Sincerely,
Ronald C. Ruecker,
President.
Mr. HATCH. Mr. President, The first letter is from the National
Sheriffs Association on behalf of 20,000 nationwide sheriffs. It states
in part:
The Nation's sheriffs recognize the critical role that
electronic communication service providers play in assisting
intelligence officials on national security activities. We
are gravely concerned that, without retroactive immunity, the
private sector might be unwilling to cooperate with lawful
Government requests in the future. The possible reduction in
intelligence that might result from protracted litigation is
unacceptable to the security of our citizens. We strongly
urge you to help preserve the cooperative relationship
between law enforcement and the private sector by supporting
the immunity provision of this bill.
The other letters include one from the National Troopers Coalition,
on behalf of its 40,000 members, one from the International Association
of Chiefs of Police, on behalf of its 21,000 members, and one from the
National Narcotics Officers' Association's Coalition on behalf of its
69,000 members. All of these letters support the retroactive immunity
provision.
I have to tell you, when 150,000 law enforcement personnel with
tremendous experience and expertise say they support telecom
retroactive immunity, we should be listening and we should be giving
this great weight. They know firsthand the dangers we face and they
know what is at stake.
Let me talk a little about the Feinstein amendment No. 3910 on
exclusive means. S. 2248 already has an exclusive means provision that
is identical to the first part of the distinguished Senator's
amendment. That provision simply restates Congress's intent back in
1978, when FISA was enacted, to place the President at his lowest ebb
of authority in conducting warrantless foreign intelligence
surveillance.
The current provision in S. 2248 was acceptable to all sides in the
Intelligence Committee because it maintains the status quo with respect
to the dispute over the President's constitutional authority to
authorize warrantless surveillance.
Unfortunately, the amendment of the distinguished Senator from
California is a significant expansion of the bipartisan provision that
we enacted in the Intelligence Committee bill. Her amendment goes
further by stating that only an express statutory authorization for
electronic surveillance, other than FISA or the criminal wiretap
statutes, shall constitute additional exclusive means.
This attempts to prohibit the President's exercise of his judicially
recognized article II authority to issue warrantless electronic
surveillance directives.
During the next attack on our country or in the face of an imminent
threat, the Congress may not be in a position to legislate an express
authorization of additional means. We may get intelligence information
about an imminent threat during a lengthy recess, over a holiday. Air
travel may be inhibited.
The bottom line is, we don't know what tomorrow will bring. Yet this
[[Page S834]]
provision of the distinguished Senator from California would raise
unnecessary legal concerns that might impede effective action by the
executive branch to protect this country.
This amendment would also make members of the intelligence community
who conduct electronic surveillance at the direction of the President
subject to the FISA criminal penalty provisions of a $10,000 fine and
imprisonment for not more than 5 years.
Virtually all of these people are not partisan people. They are
people who continue on regardless of what administration is involved.
They are there to do the job to protect us. They are not partisans. We
should not treat them as such, and certainly we should not be saying
that if they make a mistake, they are subject to a criminal provision
of a $10,000 fine or imprisonment of not more than 5 years. Also, it is
likely these criminal penalties would apply to any service provider who
assisted the Government in conducting such electronic surveillance.
That makes it even tougher to get their cooperation. Up until now they
have been willing to cooperate because they realize how important this
work is, and they have the request of high-level officials in the
Government. That should be enough to protect them. They are doing it
patriotically, to protect our country. They should not be hampered nor
should their general counsels have to make a decision that the U.S.
Government will have to go to court, with all of the delays involved in
that, in order to do what it takes to protect the people in this
country.
Regardless of what the skeptics and critics have said about the
President's Terrorist Surveillance Program, the Constitution trumps the
FISA statute. If a Government employee acts under the color of the
President's lawful exercise of his constitutional authority, that
employee should not be subject to a criminal penalty.
In my opinion, the current restatement of exclusive means is fair and
keeps the playing field level, and it is enough. Ultimately, the
Supreme Court may decide whether Congress has the authority to limit
the President's authority to intercept enemy communications. Until
then, it is my hope that we don't try to tilt the balance in a way that
we may someday come to regret.
I urge my colleagues to vote against this exclusive means amendment.
The next Feinstein amendment is No. 3919. This amendment alters the
immunity provision of the Rockefeller-Bond bill. I will oppose this
amendment.
As has been said countless times, the immunity provision in this
legislation was created after months of extensive debate and
negotiation between the Congress and the intelligence community.
I cannot emphasize enough the painstaking work that the Intelligence
Committee undertook in order to create this immunity provision. The
chairman of the Senate Select Committee on Intelligence stated the
following in the Intelligence Committee report:
The [Intelligence] Committee did not endorse the immunity
provision lightly. It was the informed judgment of the
Committee after months in which we carefully reviewed the
facts in the matter. The Committee reached the conclusion
that the immunity remedy was appropriate in this case after
holding numerous hearings and briefings on the subject and
conducting a thorough examination of the letters sent by the
U.S. Government to the telecommunications companies.
The administration wanted more than what is in this bill, and they
did not get it. In a bipartisan way, we came together to come up with
this bill, and it should not be tampered with now on the floor.
Let's look at what this means in relation to ongoing litigation.
Since this immunity compromise provides no immunity for Government
agencies or officials, the following seven cases will continue to be
unaffected by this legislation. The immunity provision of the Senate
Select Committee on Intelligence bill still allows TSP challenges in
the al-Haramain Islamic Foundation, Inc. v. George W. Bush case, the
ACLU v. National Security Agency case, the Center for Constitutional
Rights v. George W. Bush case, the Guzzi v. George W. Bush case, the
Henderson v. Keith Alexander case, the Shubert v. George W. Bush case,
and the Tooley v. George W. Bush case.
I wish to draw attention to the first case. The al-Haramain Islamic
Foundation has been designated by the Department of the Treasury as a
``specially designated global terrorist'' for providing support to al-
Qaida and was similarly designated by the United Nations Security
Council. If there ever was a case that should be dismissed, this is
it--a terrorist organization providing support to al-Qaida sues the
President for listening to their terrorist conversations. Unbelievable.
And yet since the immunity provision in this bill is silent on the
issue, the case will go on.
I highlight this case to remind people the provision in the bill
already represents a compromise. The provision in the original bill
passed by a 13-to-2 bipartisan vote out of the Intelligence Committee
on which I serve. Despite repeated attempts to tweak this compromise,
it remains the most appropriate and just mechanism for the resolution
of this issue.
Just like the faulty ideas of Government indemnification and
Government substitution, the Foreign Intelligence Surveillance Court
review of certifications is yet another alternative that fails to
improve on the original bipartisan immunity compromise we have in the
bill before us.
I will oppose any provisions which weaken the immunity compromise.
This amendment we are debating will do exactly that. Rather than rely
on the carefully crafted language, this amendment introduces radically
new ideas which completely change the dynamics of the immunity
provision of the bipartisan bill. Rather than allowing the presiding
district judge to review the Attorney's General certification called
for in this bill, this amendment unnecessarily expands the Foreign
Intelligence Surveillance Court jurisdiction into areas unheard of when
this court was created nearly 30 years ago and equally unheard of in
the year 2008.
Let's remember what it is that the Foreign Intelligence Surveillance
Court was created to do:
A court which shall have jurisdiction to hear applications
for and grant orders approving electronic surveillance.
That is the mission of the FISC. So the FISC hears applications for
and grants orders approving electronic surveillance. That is it. That
is all they were created to do and rightly so. These are judges from
all over the country who serve on the FISC at special times and do read
these briefs, do read these legal matters that come before them, and
then do exactly that, ``a court which shall have jurisdiction to hear
applications for and grant orders approving electronic surveillance.''
Yet this legislation will completely alter the nature of this court
by transforming it into a trial court for adversarial litigation. This
completely alters the intention of FISA from 1978 which carefully
created this court. The role of the FISC, or Federal Intelligence
Surveillance Court, has been greatly misunderstood during this debate.
I suggest we pay close attention to the recent opinion from the FISC,
which is only the third public opinion in the history of the FISC, and
that is over a 30-year period. The importance of this quote has been
emphasized many times by Senator Bond, and this is what the FISC said:
Although the FISC handles a great deal of classified
material, FISC judges do not make classification decisions
and are not intended to become national security experts.
Furthermore, even if a typical FISC judge had more expertise
in national security matters than a typical district court
judge, that expertise would not be equal to that of the
executive branch which is constitutionally entrusted with
protecting the national security.
I understand there are certain Senators in this body who dislike
President Bush. That is their right. But on the other hand, there may
come a time when a President of their party may have to protect our
country. They ought to think it through because they are taking away
the tools that are necessary to protect our country in a zeal to go
beyond what the FISC was ever designated to do.
Going beyond the fact this amendment would turn the role of the FISA
Court on its head, let's look at what the FISC is asked to do in this
amendment. According to the language, liability protection would only
occur in three limited instances: One, the statutory defense in 18
U.S.C. 2511(2)(a)(ii)
[[Page S835]]
has been met. Two, the assistance of electronic surveillance service
providers was undertaken on good faith and pursuant to an ``objectively
reasonable belief'' that compliance with the Government's directive was
lawful. And three, assistance was not provided.
Regarding the first instance in which litigation would be dismissed,
we need to realize 18 U.S.C. 2511 is not the only statute that allows
the Government to receive information from telecommunications
companies. There are numerous statutes which authorize the Government
to receive information from private businesses. Here is a list not
meant to include all such statutes. Look at this list:
18 U.S.C. 2516; 18 U.S.C. 2518, 18 U.S.C. 2512(2)(a)(ii), 18 U.S.C.
2511(3)(b)(iv), 50 U.S.C. 1802(a), 50 U.S.C. 1804, 50 U.S.C. 1805, 50
U.S.C. 1811, 50 U.S.C. 1861, 18 U.S.C. 2702(b)(5), 18 U.S.C.
2702(c)(5), 18 U.S.C. 2702(b)(8), 18 U.S.C. 2702(c)(4), 18 U.S.C.
2703(a), 18 U.S.C. 2709, 50 U.S.C. 1842, 18 U.S.C. 3127, 50 U.S.C.
1843, and 50 U.S.C. 1844, to mention a few.
Regarding the second narrow instance of dismissal of litigation, the
phrase ``objectively reasonable belief'' is not defined in the
legislation. What does this mean? How can it not be given a definition
if the court is supposed to rely on it? Are we going to turn it over to
the court to define it? Again, that is not the mission of the court.
The court is not skilled in intelligence matters, except to the extent
they have to know about it to be able to approve the various requests
that are made of them, and there is no way it is going to be as skilled
as the intelligence community.
So this amendment would grant the FISC new jurisdiction to review
past conduct of private businesses utilizing a standard which did not
exist at the time of the supposed activity and a standard which is not
even defined in the legislation which creates it. Wow.
In addition, this amendment would allow plaintiffs and defendants to
appear before the Federal Intelligence Surveillance Court. But we
should know the FISC is not a trial court. It has never had plaintiffs
in ongoing civil litigation appear before it in its nearly 30 years of
existence.
There are approximately 40 civil cases which are ongoing out of this
matter. Would all these plaintiffs appear before FISC? How would
classified information, therefore, be protected? This amendment would
create an entirely new role for the FISC, thus abandoning the very
formula by which the FISC was created in the first place. Remember, the
FISC was created to be a specialized court. Yet the expansion of FISC
jurisdiction and duty required by this amendment brings us down a road
where the FISC could be transformed from a specialized court to an
appendage of the Federal district court. That precedent set by this
amendment could forever alter the role of the FISC.
Quite simply, the FISC is not a trial court, nor should it be. Quite
simply, the FISC is not a forum for adversarial litigation, nor should
it be.
This amendment extends the rationale that the answer to any question
during this debate is ``have the FISC look at it.'' The role of the
FISC is vitally important, but the FISC is not the answer to every
question during this debate. Misguided attempts to expand the FISC to
be the purported solution to any alleged problem with terrorist
tracking are impractical, imperceptive, and inappropriate.
We are long past the time for guesswork, and we need to support the
tried-and-true bipartisan immunity provision as appropriate remedy to a
critical problem. I reiterate my strenuous objection to this amendment,
and I urge my colleagues not to support an amendment which introduces
far too many unanswered questions into a debate which needs none.
Amendment No. 3912
With regard to amendment No. 3912 regarding bulk collection, this
amendment did pass out of the Judiciary Committee, but it passed on a
10-to-9 party-line vote after only four minutes of discussion. This
Judiciary substitute was tabled by the full Senate by a 60-to-36 vote,
and this amendment is one of the reasons it was.
There is confusion about the need for this amendment. Does it
preclude bulk collection or not? The text of the amendment seems to
indicate that no bulk collection is permitted. Yet the author of the
amendment states there is an exception for military operations. I have
read the amendment, and I don't see any exception listed. Perhaps he is
referencing comments in the Judiciary Committee report. But committee
reports are not law.
The Attorney General and Director of National Intelligence have
carefully reviewed this amendment, and they have stated that if this
amendment is in a bill which is presented to the President, they will
recommend that the President veto the bill, and I agree with that
recommendation.
Amendment No. 3979
With regard to the Feingold amendment No. 3979 on sequestration of
U.S. person communications, I am very concerned about the substance of
this amendment, as are many of my colleagues. In addition, the Attorney
General and Director of National Intelligence have thoroughly reviewed
this amendment, and they recently sent a letter to the Senate stating:
This amendment would eviscerate critical core authorities
of the Protect America Act and S. 2248. Our prior letter and
Statement of Administration Policy explained how this type of
amendment increases the danger to the Nation and returns the
intelligence community to a pre-September 11th posture that
was heavily criticized in congressional reviews. It would
have a devastating impact on foreign intelligence
surveillance operations. It has never been the case that the
mere fact that a person overseas happens to communicate with
an American triggers a need for court approval. Indeed, if
court approval were mandated in such circumstances, there
would be grave consequences for the intelligence communities'
efforts to collect foreign intelligence.
The last part of this has been underlined.
Accordingly, if this amendment is part of a bill that is
presented to the President, we, as well as the President's
other senior advisors, will recommend that he veto the bill.
Unlike many of the amendments we have debated here on the Senate
floor, this amendment did not receive a vote in either the Intelligence
or Judiciary Committees. Not that that is limiting, but the amendment
itself is not a healthy one on its face. Yet this amendment is among
the most drastic in terms of affecting the efficiency and effectiveness
of our intelligence collection processes. This amendment imposes
tremendous restrictions in which the intelligence community is limited
in what information they can receive and how this information can be
shared.
That is what I think we were shocked to find when 9/11 occurred, that
our various intelligence community organizations--FBI, CIA, et cetera--
were not sharing information. Now that we have solved that problem, why
go back?
The massive reorganization of our collection techniques which would
be required by this amendment is certainly obvious. The author of the
amendment has recognized this as well, previously stating:
I do understand this amendment imposes a new framework that
may take some time to implement.
We need to remember the purpose of this bill is, and always has been,
to enable the intelligence community to target foreign terrorists and
spies overseas. But in order to make sure we are not missing valuable
intelligence, we need to get all of a target's communications, not only
when that target is talking with other people overseas, and that may
mean intercepting calls with people inside the United States. In fact,
those may be the most important calls to try to prevent an attack in
the United States.
I understand there is concern about the impact of foreign targeting
on U.S. persons. But we have a lot of protections built into this new
bill that came out of the Intelligence Committee on a 13-to-2
bipartisan vote. I have been to this floor on numerous occasions and
highlighted how the Foreign Intelligence Surveillance Court's role in
all aspects of foreign intelligence collection is being greatly
expanded by this bill, far beyond the 1978 FISA statute.
In addition, the Senate agreed to an amendment by Senator Kennedy
that would make it clear you cannot use authorities in this bill to
require communications where the sender and all intended recipients are
known to be in the United States. We shouldn't go any farther.
The intelligence community must use minimization procedures. Our
analysts are familiar with these procedures. They have used them for a
long
[[Page S836]]
time without any known abuses. Yet the scope of this amendment seems to
represent no confidence in the minimization procedures used by the U.S.
Government. Keep in mind, these minimization procedures were enacted
over 30 years ago, and this bill will authorize the FISC to review and
approve them for the first time.
This bill goes farther than ever before in our history in striking a
balance between intelligence collection and protection of civil
liberties. Personally, I am proud of this bill. I think all in the
Intelligence Committee should have stuck with it, and we should not be
trying to amend it at this point, especially with amendments that
aren't going to work and will diminish our ability to get the
intelligence we need to protect our citizens. Now I believe that in
this bill we are protecting the civil liberties of ordinary Americans,
but we also need to make sure our intelligence community isn't blind to
information which may ultimately prove to be critical.
Section (a)(1) of this amendment would not allow the collection of
certain communications if the Government knows before acquisition a
communication is to or from a person reasonably believed to be in the
United States. The Government knows when it targets foreign citizens in
foreign countries that they might call or be called by U.S. persons.
These are called ``incidental communications.'' Under the limitations
in this amendment, the Government could not initiate the collection in
the first place under many circumstances. This essentially undoes the
authority granted in section 703 of this bill and will cause us to go
deaf to our enemies.
The Director of National Intelligence has told us before that speed
and agility are essential in tracking terrorists and preventing
terrorist attacks. Yet even if collection could somehow begin under the
dangerous restrictions in this amendment, analysts would have to go
through hoop after hoop after hoop to use information that has foreign
intelligence value. Remember, if it doesn't have foreign intelligence
value, any U.S. person information would already have been minimized.
I do not understand why we would set up unnecessary roadblocks and
slow this process down when we already have so many substantial
protections in place. The Director of National Intelligence has stated
this amendment would cause significant operational problems for the
intelligence community that could lead to intelligence gaps. I affirm
this statement. Knowing this, it would be irresponsible to handcuff our
intelligence community with these additional restrictions.
I urge my colleagues to join me in opposing this dangerous amendment.
I emphasize again: We have brilliant, knowledgeable, well-trained,
decent, honorable people who are here, no matter who is President, in
the business of protecting our citizens from terrorist acts. And this
bill, which passed 13 to 2 on a bipartisan vote out of the Intelligence
Committee, provides more checks on these good people than the FISA Act
of 1978 did, and that act has worked very well through all those years.
The reason we are doing this bill is because we are in a new age, with
new methods of communication that simply were not covered by the 1978
act, to put it in simple terms.
This is a complex thing, and I think we have to be very careful if we
go beyond what the Intelligence Committee bill has said we should do.
It was a bill worked out after months of hearings and work by the
Intelligence Committee. I believe, in the Senate, I have probably been
on the Intelligence Committee longer than anybody else, and I want to
protect our people too. I want to protect them in a multiplicity of
ways. But one of the most important ways we can protect them in this
day of Islamic fascism is to give them the tools to do it and not
restrict and hamper them from doing it--keeping in mind that they are
honest, non-partisan citizens who are more interested in protecting
Americans and getting the information we need to protect everybody than
the partisans and sometimes uninformed people make them out to be.
Yes, any administration can put the top-level people in, but it is
those who collect this information on a daily basis, minimize this
information when it needs to be minimized, and work to do it in an
honorable fashion who do the work. We should not be tying their hands
and hampering them from getting the work done in this day and age when
we have so many problems, and it looks to me as if we are going to have
them for many years to come.
Mr. President, I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Rhode Island.
Amendment No. 3919
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
[[Page S837]]
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.
The PRESIDING OFFICER (Ms. Klobuchar). The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. FEINGOLD. I ask unanimous consent that the order for the quorum
call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendment No. 3979
Mr. FEINGOLD. Madam President, today I want to address several of the
pending amendments to the FISA legislation, and I will indicate the
amendment number of each one as I discuss it. First is what we call the
Feingold-Webb-Tester amendment No. 3979. I wish to address some of the
arguments that have been made in opposition to Feingold-Webb-Tester and
to set the record straight about what the amendment does. The Senator
from Missouri has suggested it would cut off all foreign intelligence
collection because the Government would not be able to determine in
advance whether communications are foreign to foreign. This is
preposterous. The whole point of the amendment is to allow the
Government to acquire all communications of foreign targets when it
does not know in advance whether they are purely foreign or have one
end in the United States.
The administration also argues we should not pass the Feingold-Webb-
Tester amendment because it would be difficult and time consuming to
implement. That is no reason to oppose the amendment. I understand the
amendment imposes a new framework, and that is precisely why the
amendment grants the Government up to a year before it goes into
effect.
I also wish to make clear that the amendment does not force the
Government to determine the location of every person and every e-mail
the Government acquires, contrary to what has been suggested. The
amendment only requires that the Government determine whether one end
of a communication is in the United States where reasonably
practicable, based on procedures approved by the FISA Court. In some
instances, that would be easy to do, while in others it would not be
feasible at all. The court-approved procedures will take those
differences into account.
It is also not true that the amendment would harm our nonterrorism
foreign intelligence operations. This amendment leaves intact the
warrantless acquisition of any foreign-to-foreign communications and
any communications where the Government doesn't know in advance whether
they are to or from people in the United States. Even for
communications where the Government knows they involve Americans in the
United States, no court order is actually required for communications
relating to terrorism or anyone's safety.
This is much broader than the pre-Protect America Act law. None of
this would have been possible 7 months ago. Let's not forget the
justification for this legislation has always been about terrorism and
foreign-to-foreign communications. Last month, the Vice President
defended the Protect America Act by talking about ``one foreign citizen
abroad making a telephone call to another foreign citizen abroad about
terrorism.'' The Feingold-Webb-Tester amendment allows those calls to
be monitored without a warrant.
The Feingold-Webb-Tester amendment allows the Government to get the
information it needs about terrorists and about purely foreign
communications, while providing additional checks and balances for
communications between people in the United States and their overseas
family members, friends, and business colleagues. I urge my colleagues
to support the Feingold-Webb-Tester amendment.
Let me next turn to Amendment No. 3912, which has been referred to as
the bulk collection amendment. I wish to again stress the importance of
my amendment prohibiting the bulk collection of Americans'
international communications. The bill we are debating is supposedly
intended to permit monitoring of foreign-to-foreign communications and
the tracking of terrorists overseas without a warrant. It is not
supposed to allow the Government to collect all communications into or
out of the United States, but
[[Page S838]]
that is exactly what the Government could seek to do with these
authorities, which is why this amendment is critical. I have yet to
hear any real arguments against it.
The DNI's recent letter opposing the amendment fails to come up with
any substantive arguments. Instead, it describes hypothetical
situations that clearly wouldn't be affected by the amendment. In order
to protect the international communications of innocent Americans at
home, the amendment simply requires that the Government is seeking
foreign intelligence information from its targets. In the only examples
cited in the letter--a neighborhood or group of buildings or geographic
area that the U.S. military is about to invade--clearly, the Government
has that purpose. The notion that the Government could not make a good-
faith certification to the court that it is seeking foreign
intelligence, which is all this amendment requires, is simply
ludicrous. What is telling about the DNI's letter, besides that it
includes no real arguments against the amendment, is what it does not
say. It does not refute the danger this amendment is intended to
address: the bulk collection of all communications between the United
States and Europe or Canada or South America or, indeed, the world.
The DNI has testified that the PAA would authorize that kind of
massive, indiscriminate collection of Americans' communications, and
the administration has never denied that this bill could, too, unless
we pass this amendment. In fact, this letter does nothing to reassure
the American people the Government could not and would not collect all
their international communications. Worse, the letter argues that a
prohibition on that kind of massive collection would not ``appreciably
enhanc[e] the privacy interests of Americans.'' If the DNI does not
think the privacy interests of Americans would be affected by the
collection of all their international communications, potentially
vacuuming up their communications not just with foreigners overseas but
with Americans overseas as well, then that is all the more reason to be
concerned.
Serious constitutional issues are at stake. The administration is
effectively telling us it intends to ignore them.
Let me also respond to a statement by the chairman of the
Intelligence Committee last week that a dragnet of all international
communications of Americans would probably violate the fourth
amendment. I am pleased to hear the chairman acknowledge that the
surveillance the administration would like to conduct would violate the
constitutional rights of Americans, but how could we possibly expect
this administration--an administration that has already demonstrated
indifference to Americans' privacy and has already said that bulk
collection would be ``desirable''--to hold back. Nor should we rely on
the FISA Court to stop this, as the chairman has suggested. If Congress
believes something is unconstitutional, we have absolutely no business
authorizing it. We have been warned, and now we need to act by passing
my modest bulk collection amendment.
I reserve the remainder of my time on amendment No. 3902.
As to the Dodd-Feingold immunity amendment No. 3907, I am pleased to
join my colleague in offering this amendment to strike the immunity
provision. I ask unanimous consent that I be yielded 15 minutes to
speak on the Dodd amendment and that the time be charged to the
proponents of the amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. FEINGOLD. I thank the Senator from Connecticut.
Amendment No. 3907
I strongly support Senator Dodd's amendment to strike the immunity
provision from this bill. I thank him for his leadership on the issue.
I offered a similar amendment in the Judiciary Committee, and I
supported a similar amendment in the Intelligence Committee when it was
offered by the Senator from Florida, Mr. Nelson. Congress should not be
giving automatic retroactive immunity to companies that allegedly
cooperated with the President's illegal NSA wiretapping program. This
provision of the bill is both unnecessary and unjustified, and it will
undermine the rule of law. Retroactive immunity is unnecessary because
current law already provides immunity from lawsuits for companies that
cooperate with the Government's request for assistance, as long as they
receive either a court order or a certification from the Attorney
General that no court order is needed and the request meets all
statutory requirements.
Companies do not need to do their own analysis of the court order or
the certification to determine whether the Government is, in fact,
acting lawfully. But if requests are not properly documented, FISA
instructs the telephone companies to refuse the Government's request
and subjects them to liability if they instead decide to cooperate.
This framework, which has been in place for 30 years, protects
companies that act at the request of the Government, while also
protecting the privacy of Americans' communications. Some supporters of
retroactively expanding this provision argue that the telephone
companies should not be penalized if they relied on high-level
Government assurance that the requested assistance was lawful. As
superficially appealing as that argument may sound, it utterly ignores
the history of the FISA statute.
Telephone companies have a long history of receiving requests for
assistance from the Government. That is because telephone companies
have access to a wealth of private information about Americans,
information that can be a very useful tool for law enforcement. But
that very same access to private communications means telephone
companies are in a unique position of responsibility and public trust.
Yet before FISA, there were basically no rules to help the phone
companies resolve this tension, between the Government's request for
assistance in foreign intelligence investigations and the companies'
responsibilities to their customers. This legal vacuum resulted in
serious Government abuse and overreaching.
The Judiciary Committee has heard testimony about this system from
Mort Halperin, a former Nixon administration official who was himself
the subject of a warrantless wiretap and was involved in the drafting
of the FISA law in the 1970s. He testified that before FISA:
Government communication with the telephone company . . .
could not have been more casual. A designated official of the
FBI called a designated official of [the company] and passed
on the phone number. Within minutes all of the calls from
that number were being routed to the local FBI field office
and monitored.
Not surprisingly, this casual ad hoc system failed to protect
Americans' privacy. The abuses that took place are well documented and
quite shocking. With the willing cooperation of the telephone
companies, the FBI conducted surveillance of peaceful antiwar
protesters, journalists, steel company executives, and even Martin
Luther King, Jr., an American hero whose life we recently celebrated.
So Congress decided to take action. Based on the history of and
potential for Government abuses, Congress decided it was not
appropriate for telephone companies to simply assume that any
Government request for assistance to conduct electronic surveillance
was legal.
Let me repeat that. A primary purpose of FISA was to make clear once
and for all that the telephone companies should not blindly cooperate
with Government requests for assistance. At the same time, however,
Congress did not want to saddle telephone companies with the
responsibility of determining whether the Government's request for
assistance was a lawful one. That approach would leave the companies in
a permanent state of legal uncertainty about their obligations. So
Congress devised a system that would take the guesswork out of it
completely. Under that system, which is still in place today, the
companies' legal obligations and liability depends entirely on whether
the Government has presented the company with a court order or a
certification stating that certain basic requirements have been met.
If the proper documentation is submitted, the company must cooperate
with the request and will be immune from liability. If the proper
documentation has not been submitted, the
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company must refuse the Government's request or be subject to possible
liability in the courts.
AT&T, which was the only telephone company in existence at the time
in the 1970s, was at the table when FISA was drafted. As Mr. Halperin
described in his testimony, the company:
received the clarity that it sought and deserved. The rule,
spelled out clearly in several places in the legislation and
well understood by all, was this: If [the phone company]
received a copy of a warrant or certification under the
statute, it was required to cooperate. If it did not receive
authorization by means outlined in the statute, it was to
refuse to cooperate and was to be subjected to state and
federal civil and criminal penalties for unlawful acquisition
of electronic communications.
The telephone companies and the Government have been operating under
this simple framework for 30 years. Companies have experienced, highly
trained and highly compensated lawyers who know this law inside and
out. In view of this history, it is inconceivable that any telephone
companies that allegedly cooperated with the administration's
warrantless wiretapping program did not know what their obligations
were. It is just as implausible that those companies believed they were
entitled to simply assume the lawfulness of a Government request for
assistance. This whole effort to obtain retroactive immunity is based
on an assumption that does not hold water.
Quite frankly, the claim that any telephone company that cooperates
with a Government request for assistance is simply acting out of the
sense of patriotic duty doesn't fare much better. Recently, we learned
that telecommunications companies actually have cut off wiretaps when
the Government failed to promptly pay its bills.
The Department of Justice Office of Inspector General released a
report last month finding that ``late payments have resulted in
telecommunications carriers actually disconnecting phone lines
established to deliver surveillance to the FBI, resulting in lost
evidence.'' Since when does patriotic duty come with a price tag?
Evidently, assisting the Government's criminal intelligence
investigation efforts fell somewhere below collecting a paycheck on the
companies' lines of priorities.
Some of my colleagues have argued the telephone companies alleged to
have cooperated with the program had a good-faith belief their actions
were in accordance with the law. But there is an entire statute in
addition to the certification provision that already provides telephone
companies with a precisely defined good-faith defense. Under this
provision, which is found in section 2520 of title 18, if the company
is relying in good faith on a court order or other statutory
legislative authorization, they have a complete defense to liability.
This is a generous defense, but as generous as it is, it is not
unlimited. The court must find that the telephone company determined in
good faith that there was a judicial, legislative, or statutory
authorization for the requested assistance.
I also wish to address the argument that retroactive immunity is
necessary because the telephone companies can't defend themselves in
court. When I hear this argument, I can't help but think that this
administration has staged the perfect crime: enlist private companies
to allegedly provide assistance in an illegal Government program, then
prevent any judicial inquiry into the program by claiming a privilege--
the so-called state secrets privilege--that not only shields your own
actions from scrutiny but enables the companies to evade judicial
scrutiny as well by claiming that they are defenseless. All the
administration needs to get away with this is Congress's blessing.
That is exactly why immunity is the wrong solution. Think about what
we would be doing. We would be saying that in matters of national
security, you can break the law with impunity because the courts can't
handle national security materials. This is outrageous. Do we really
want to create a law-free zone for crimes that involve national
security matters? If the Government's use of the state secrets
privilege is interfering with holding companies accountable for alleged
violations of the law, the solution isn't to shrug and just give up on
accountability; the solution is to address the privilege head-on and
make sure it doesn't become a license to evade the laws we have passed.
In any event, the notion that the Federal courts can't handle
national security matters is insulting to the judges this body has seen
fit to confirm, and it is contrary to the facts. Cases involving
classified information are decided routinely by the Federal courts.
That is why we have a statute--the Classified Information Procedures
Act--to govern how courts handle classified materials. Pursuant to that
statute, courts have in place procedures that have successfully
protected classified information for many years. There is no need to
create a ``classified materials'' exception to our justice system.
That brings me to another issue. I have been discussing why
retroactive immunity is unnecessary and unjustified, but it goes beyond
that. Granting companies that allegedly cooperated with an illegal
program this new form of automatic retroactive immunity undermines the
law that has been on the books for decades, a law that was designed to
prevent exactly the type of actions that allegedly occurred here.
Remember, telephone companies already have absolute immunity if they
complied with the applicable law, and they have an affirmative defense
if they believed in good faith that they were complying with that law.
So the retroactive immunity provision we are debating here is necessary
only if we want to extend immunity to companies that did not comply
with the applicable law and did not even have a good-faith belief that
they were complying with it. So much for the rule of law. Even worse,
granting retroactive immunity under these circumstances will undermine
any new laws we pass regarding Government surveillance. If we want
companies to follow the law in the future, it certainly sends a
terrible message, and sets a terrible precedent, to give them a ``get
out of jail free'' card for allegedly ignoring the law in the past.
I find it particularly troubling when some of my colleagues argue
that we should grant immunity in order to encourage the telephone
companies to cooperate with the Government in the future. Let's take a
close look at that argument.
Telephone companies are already legally obligated to cooperate with a
court order, and as I have mentioned, they already have absolute
immunity for cooperating with requests that are properly certified. So
the only thing we would be encouraging by granting immunity here is
cooperation with requests that violate the law. That is exactly the
kind of cooperation FISA was supposed to prevent.
Let's remember why: These companies have access to our most private
conversations, and Americans depend on them to respect and defend the
privacy of these communications unless there is clear legal authority
for sharing them. They depend on us to make sure the companies are held
accountable for betrayals of that public trust. Instead, this immunity
provision would invite the telephone companies to betray that trust by
encouraging cooperation with a legal Government program.
Since 9/11, I have heard it said many times that what separates us
from our enemies is respect for the rule of law. Unfortunately, the
rule of law has taken it on the chin from this administration. Over and
over, the President and his advisers have claimed the right to ignore
the will of Congress if and when they see fit. Now they are claiming
the same right for any entity that assists them in that effort. It is
time for Congress to state clearly and unequivocally: When we pass a
law, we mean what we say, and we except the law to be followed. That
goes for the President, it goes for the Attorney General, and it goes
for the telephone companies. The rule of law is not less important
after 9/11. We can and we must defeat al-Qaida without breaking the law
or sacrificing Americans' basic rights.
We have a choice. The Senate can stand up for the rule of law and let
these cases go forward in the courts or we can decide to give our
blessing to an administration that broke the law and the companies that
allegedly helped it, and we can signal that we stand ready to bail them
out the next time they decide to ignore the law. I urge my colleagues
not to take that step. Support the rule of law by voting in favor of
the Dodd-Feingold amendment No. 3907.
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I again thank my colleague from Connecticut for his tremendous
leadership on this issue. It has been extremely helpful in this effort.
I sincerely thank him.
I ask unanimous consent that my remaining time be reserved.
Madam President, I yield the floor.
The PRESIDING OFFICER. The Senator from Connecticut is recognized.
Mr. DODD. Madam President, before our colleague from Wisconsin leaves
the floor, let me thank him for his leadership on this issue, along
with many others associated with this piece of legislation: the reverse
targeting and the bulk collection issues which he has raised, which
seem so obvious and so clear that you wonder why they even have to be a
subject of debate. The clear reaction, in fact, from leading
authorities, including those of the intelligence agencies, has been to
state categorically that the very actions he wants to exclude from this
legislation are prohibited under law. Reverse targeting is
unconstitutional, and bulk collection is unattainable. But some in the
administration have said: Were bulk collection possible, we believe we
have the right to do it. The idea of bulk collection without following
the rule of law should violate the sensibilities of every single Member
of this body.
This debate and this discussion are very important. This has gone on
now since back in December--actually, before then. The Senator from
Wisconsin sits on both the Judiciary Committee and the Intelligence
Committee, and so he has been deeply involved in these issues for a
long time.
What I wish to state at the outset is that these amendments we are
offering should not be the subject of some sort of political divide
between Democrats, Republicans, liberals, conservatives, moderates, or
whatever definitions one wants to apply to the people who serve here.
This is about the rule of law. It is about the Constitution of the
United States, and the idea that this issue and debate should somehow
be divided along those lines ought to be offensive to every single
Member of this body. Every single one of us, on the day we raise our
right hand and take the oath of office, swear to uphold the
Constitution of the United States. That is nothing less than what we
are engaged in with this debate.
We have been asked to subscribe to the false dichotomy that in order
for us to be more secure as a nation, we must give up some of our
rights. The Senator from Wisconsin and the Senator from Connecticut
believe very firmly that quite the opposite is true: that if you begin
to give up rights, you become less secure, as a people and as a nation.
Our deep concern is that that is exactly the path we seem to be
following these days with the refusal to adopt the Feingold amendments
in dealing with reverse targeting and bulk collections. It is what I am
fearful may be the case when we try to strike title II of the Foreign
Intelligence Surveillance Act and prohibit the retroactive immunity
being sought by the administration and by a handful of telephone
companies.
Let me remind our colleagues that when this proposal was first made
to the Intelligence Committee, the proposal was to grant immunity to
anyone involved in the collection of this information, including those
who allegedly authorized it at the executive branch. So while I am
critical of what is in the Intelligence Committee bill that has been
brought to us by my friend from West Virginia and my friend from
Missouri, Senator Rockefeller and Senator Bond, I wish to begin by
thanking them for having rejected the administration's earlier request
that there be broad-based immunity granted to everyone involved in
warrantless wiretapping. But it is instructive to know what the
administration wanted at the outset: complete immunity for everyone
associated with this vacuum-cleaning operation, who eavesdropped on
millions of phone conversations, e-mails, and faxes over the last 5
years.
Why were they seeking immunity for everyone involved in this? I think
the answer becomes abundantly clear. There is a great concern that the
courts may conclude that, in fact, what was done was illegal and that
those who participated in it might be held liable.
Again, I thank the Intelligence Committee for narrowing this request.
However, title II of this bill would still provide telecommunications
corporations retroactive immunity for their warrantless and possibly--
possibly--illegal spying on their very customers.
Much more than a few companies and a few lawsuits are at stake. Equal
justice is at stake--justice that does not place some corporations
outside of the rule of law.
Openness is at stake--an open debate on security and liberty, and an
end to warrantless wiretapping of Americans.
Senator Feingold laid out the history of FISA in eloquent terms this
afternoon, going back to the 1970s and describing the genesis of this
law that has been amended, I might add, many, many times over the last
30 years. It has been amended periodically to conform to the emerging
technologies, the emerging abilities of those who would do us harm, and
the emerging strategies that would allow us to collect the information
that would minimize their ability to do just that.
So over the years, this body has been asked to modify that law.
Almost without exception, I think it is important to point out, this
body has amended that law almost unanimously, because all of us
recognize that it is critically important that we have the ability to
determine who would do us harm, how they would do that harm, and to
stop it before it happens. There is not a single Member of this body
who is not deeply committed to that goal. We all understand and are
deeply committed to the idea that we ought to do everything we can to
protect ourselves. But we also understand, and have since the 1970s,
the importance not only of gathering the information from those who
would do us injury but simultaneously doing that which is also critical
for our survival as a nation; that is, protecting the liberties and
rights of this country.
They are what makes us unique as a nation. We were really the first
Nation that insisted that we were a nation of laws and not men. It was
a unique idea in the annals of recorded history; but at the founding of
this great Republic, we declared that we were going to do things
differently. In fact, many have argued over the years that if we were
looking for pure efficiency, this is the last form of government we
would have designed. But the Framers of our Constitution were
interested in other things than just efficiency. Had efficiency been
the goal, they certainly would have thought of a more streamlined
system. But they set up a system that not only determined what we did
but how we did things: establishing coequal branches of Government--an
executive, legislative, and judicial branch--coequal branches of
Government, and insisting that there be checks and balances, because
the Framers had been through a system in which a king and a handful of
people decided the fate of not only their own nation but the colonies
they controlled. So they set up this cumbersome, less efficient system
because they were deeply determined to protect the rule of law that
never allowed one individual or a handful of individuals decide the
fate of a nation.
So it is important to understand the genesis of this tension which
has existed in our country for more than 200 years: protecting our
security and protecting our liberties. I am not suggesting that it is
always easy to strike the perfect balance, but over the years we have
tried as a nation, from one generation to the next, to try to keep that
balance, that tension, in place so that not one side or the other would
dominate. In our time, the challenge is to balance our need to gather
information with the protection of privacy and the rights that all
Americans seek, regardless of geography or ideology.
That has been the tension that confronts us and that is what brings
me to this debate, calling upon my colleagues to support the amendment
Senator Feingold is offering to strike title II of this legislation.
Retroactive immunity stands against the very principles Senator
Feingold has outlined, which I have tried to describe. Under
retroactive immunity, the law will forbid some of our fellow citizens
from having their day in court.
On what basis are we asked to pass retroactive immunity? On trust.
There are classified documents, we are told, that prove the case beyond
the shadow of a doubt; but, of course, we are in the allowed to see
them. I have served in
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this body for 27 years. Yet I am not allowed to see these documents.
Retroactive immunity allows the President to stand up and say: Trust
me, I know what I am talking about, and you don't.
There is only one way to settle the issue at stake today. Not simply
on trust, not the opinion of a handful of individuals--as much as we
may admire or like them--but in our courts. We are not judges. We are
members of a legislative body.
Real judges and juries--whose courts ought to be our pride, not our
embarrassment--deserve to do their jobs and decide these cases. By
striking this title of the bill, we would allow them to.
That is all we are asking. Let's have the courts decide. We are not
here to assign guilt or innocence. That is not our job as legislators.
We are here to hold open the courthouse door, to ensure a fair hearing
to American citizens seeking redress. I, for one, will accept whatever
verdict results.
This is not a Democratic or Republican issue; this is a rule-of-law
issue. It is about striking the right balance between liberty and
security. I have absolutely rejected, as I said a few moments ago, the
false dichotomy that tells us to choose one over the other. And If a
Democratic President were seeking to grant retroactive immunity, I
would object as stridently and passionately as I am this afternoon.
This should not be a partisan issue. We should all be in favor of
allowing our courts to perform their constitutional responsibility to
determine whether these companies should be held accountable.
I believe that when surveillance is fully under the rule of law,
Americans will only be more secure. To claim otherwise is an insult to
our intelligence, our common sense, and our proud tradition of law.
I don't know how many colleagues have seen the movie called ``A Man
For All Seasons.'' It is the story of St. Thomas More, who was the only
individual in history that I know of who achieved the trifecta of being
a lawyer, a politician, and a saint--a rare combination in any
generation. In the movie, St. Thomas More was asked if he would be
willing to cut down every law in England to get his hands on the devil.
More answered: Absolutely not. He said:
When the last law was down, and the Devil turned 'round on
you, where would you hide, the laws all being flat? This
country is planted thick with laws, from coast to coast--
Man's laws, not God's! And if you cut them down . . . do you
really think you could stand upright in the winds that would
blow then?
Those laws know no secrecy, Madam President, they know no
distinctions for power or wealth. They live, that is, in openness. And
when that openness has been defended, when the facts are in light,
where they belong, I welcome all my colleagues' ideas in the great and
ongoing debate on security and liberty in this century--a debate in the
open, and open to us all.
It can begin by adopting this amendment striking retroactive
immunity. We can allow the courts to do their jobs to determine whether
what happened was legal.
There are those who would argue the telecoms' actions were legal--but
none of us know that for sure. If we don't adopt this amendment, we
will never know. Whatever happened will be buried for all of history.
We will have set the precedent that on the mere word or request of the
administration--or any future administration--that telecommunications
companies, or others who can collect millions of volumes of data about
us, will be allowed to turn it over to the federal government. Maybe
the next time it will be medical records or financial records that all
of us would like to think are held private--maybe those records, under
some argument, will be handed over.
When does this stop? When do we say there is a legal means by which
we do this? That has been what FISA has tried to establish for the last
three decades--to strike that balance between liberty and security. If
we set a precedent with the rejection of this amendment, we open the
door, regretfully, for not only this administration but future ones to
engage in the very practice that would deprive us of that balance
between liberty and security.
So when the vote occurs tomorrow on this amendment that Senator
Feingold and I have offered, I urge my colleagues to step out of their
partisan roles and consider the example we are setting.
I am also deeply disappointed that the President suggested he would
veto the FISA legislation if this amendment passes. The idea that an
American President would suggest that we ought to put aside the Foreign
Intelligence Surveillance Act merely to protect a handful of companies
who seek immunity, and to deny us the opportunity to determine whether
what they did was legal, seems to go far beyond what we need to be
doing at this hour, where our security is at risk, as we all know.
The best way to handle this, in my view, is to accept and adopt this
amendment and send the FISA bill to the President for signature. I
believe that despite his warnings to the contrary, he will sign this
into law. I don't want to believe an American President would put us at
risk and deny these courts the ability to grant warrants and court
orders to gather the information we need to keep us secure, all to
protect a few corporations from lawsuits.
I have said this repeatedly over the past several months, but it
deserves repeating. Not all the telephone companies complied with that
request. If they all had, it might strengthen their arguments. But in
the end, this is a Republic: the President cannot order us to break the
law. And the argument that orders from on high excuse illegal behavior
has been thoroughly debunked.
Remember, when one telecom, Qwest, asked for a court order to justify
cooperation with the President's surveillance program, it never
received one. That ought to be instructive. Why wasn't the court order
forthcoming? Why didn't the Administration go to the FISA Courts, which
were created exactly for that purpose? Why did some companies say no
when others said yes?
For all of these reasons, and the ones eloquently posed by Senator
Feingold, we urge our colleagues to accept this amendment. Let the
courts do their work and determine the legality or illegality of these
actions.
If we are able to do that, I think we will strengthen our country and
come closer to maintaining that balance between security and the rule
of law that generations throughout our Nation's history have struggled
with, doing their utmost to maintain that healthy balance.
To reject this amendment, I think, destroys that balance, does great
damage to it. I think we will regret that in the years to come.
With that, I yield the floor to others who may want to be heard on
this amendment. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. LEVIN. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER (Ms. Stabenow). Without objection, it is so
ordered.
Amendment No. 3927
Mr. LEVIN. Madam President, one of the amendments before us is the
Specter-Whitehouse amendment to title II of the FISA Amendments Act of
2007. I urge our colleagues to support the Specter-Whitehouse amendment
for the following reasons:
Title II of the bill, as currently written, provides retroactive
immunity for telecommunications providers who disclosed communications
and other confidential information about their customers at the behest
of administration officials. These provisions in the bill before the
Senate require the immediate dismissal of any lawsuit against a
telecommunications provider based on such disclosure if the Attorney
General certifies that an appropriate Government official indicated in
writing to the provider that the activity was, one, authorized by the
President, and, two, determined to be lawful. It is the words
``determined to be lawful'' that create the problem. Determined by
whom?
The way the bill is written, a determination of the Department of
Justice or intelligence community officials is sufficient to ensure
immunity even if the courts would conclude that the activity was
illegal. Dismissal would be
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required even if a court would conclude that the disclosure violated
the constitutional rights of individuals whose personal information was
illegally disclosed. It would be required even if innocent American
citizens were damaged by the disclosure or by the compromise of
confidential personal information.
The provision in the bill before us granting retroactive immunity is
not necessary, it is not wise, and it is not fair. Retroactive immunity
is not necessary to ensure the future cooperation of the
telecommunications providers who receive legitimate requests for
information from the intelligence community. In fact, Congress has
already ensured such cooperation in the Protect America Act adopted
last August which authorizes the Attorney General or the Director of
National Intelligence to direct telecommunications providers to
disclose certain information, and that law provides prospective
immunity to telecommunications who cooperate with such directives.
Title I of the bill before us appropriately continues to provide
prospective immunity to telecommunications providers. Title I states:
Notwithstanding any other law, no cause of action shall lie
in any court against any electronic communication service
provider for providing any information, facilities, or
assistance in accordance with a directive issued by the
Attorney General or the Director of National Intelligence
pursuant to the act.
In light of this prospective immunity, which is appropriately in the
bill, retroactive immunity is not necessary to ensure the future
cooperation of telecommunications providers with legitimate requests
for information from the intelligence community.
A retroactive immunity is not wise either because it precludes any
judicial review of these important issues. If private parties engaged
in illegal activities at the request of senior executive branch
officials, that may be an appropriate mitigating factor to be
considered in the courts. But to simply grant immunity retroactively
may encourage others to engage in illegal activities in the future.
That is a bad precedent because it should never be an excuse in a free
society that you acted illegally because Government officials asked you
to do so.
That leaves the question of equity for telecommunications providers
who may have cooperated with administration officials in good faith
with the assurance that such cooperation was legal and that they were
helping to safeguard our national security.
If one had to choose between a known equitable interest of the
telecommunications providers who was prevailed upon in the aftermath of
9/11 to assist the Government by disclosing private customer
communications without first conforming with the clear requirement of
the FISA law for a warrant approved by the FISA Court before doing so,
if--if--one had to choose between that equitable interest and the
perhaps uncertain claims of plaintiffs whose conversations may have
been eavesdropped upon without their knowledge and with little, if any,
provable damage, one might reach the conclusion that retroactive
immunity was an appropriate remedy for the telephone companies.
But we do not have to make that choice. We can recognize both the
equitable interest of the companies and the possible claims of our
citizens, and we can also avoid the terrible precedent of giving
retroactive immunity to law violators. We can do that by adopting the
Specter-Whitehouse amendment.
How can we protect the telecommunications providers from legal
liability if they acted in good faith at the request of the
administration without taking the extraordinary step of retroactively
eliminating any remedy for possible violations of the Constitution and
the laws of the United States? The Specter-Whitehouse amendment before
us would accomplish that by immunizing telecommunications providers who
acted in good faith based on the assurances of appropriate
administration officials from legal liability and at the same time
substituting the United States for the telecommunications providers as
the defendant in lawsuits based on the actions of those providers. That
substitution would safeguard telecommunications providers from
liability just as effectively as the retroactive immunity language in
title II of the bill.
But unlike the retroactive immunity language of title II the Specter-
Whitehouse amendment would not leave persons who can prove they were
victims of unlawful or unconstitutional actions without a remedy. On
the contrary, the Specter-Whitehouse amendment would ensure that any
such innocent victims retain whatever legal rights they have under
applicable law, except that the U.S. Government would be substituted
for the telecommunications providers as the defendant in such lawsuits.
And it is appropriate that the Government be liable rather than the
telecommunications providers since the disclosures were allegedly made
by the providers in these cases at the request of senior executive
branch officials based on appeals to help safeguard U.S. security and
assurances that the providers would be protected from liability
regardless of the requirements of law.
The argument has been made that we must provide retroactive immunity
to the telecommunications providers to ensure the cases against them
are immediately dismissed because if the cases are permitted to
proceed, vital national security information will be disclosed. Some
have even taken the position that the mere existence of this
litigation, even without the disclosure of any information, will
somehow help the terrorists. But the President has already disclosed
the existence of the collection program at issue. It has been discussed
in Congress and in the press. The Director of National Intelligence has
publicly discussed the program.
Nor will the continuation into the future of cases against
telecommunications providers or the U.S. Government, should the
Government be substituted as the Specter-Whitehouse amendment would
provide as a defendant, that would not make public sensitive collection
methods. That is because the courts have numerous tools at their
disposal to safeguard sensitive classified information from disclosure
during the course of a trial and courts have used these tools
throughout our history. Federal courts utilize these tools without
compromising the national security when our Government chooses to
prosecute terrorists or spies.
Indeed, the recently enacted Military Commissions Act provides the
same tools for the protection of classified information in cases
brought against alleged terrorists in the military justice system. U.S.
citizens who are allegedly damaged at the Government's behest surely
should be given as much protection as alleged terrorists.
The administration's willingness to utilize these procedures to
safeguard sensitive classified information in the prosecution of
alleged terrorists, but not in suits brought for the protection of the
rights of American citizens, gives the appearance that retroactive
immunity is being sought under this bill as it now stands, not to
protect classified information but, rather, to protect the
administration itself.
The bottom line is we can protect telecommunications providers from
liability for unlawful or unconstitutional disclosures made in good
faith reliance on written assurances by high-ranking executive branch
officials without retroactively depriving alleged victims of such
disclosures of any remedy, if they can demonstrate they have been
damaged by illegal practices. The Specter-Whitehouse amendment would
enable us to deal fairly with both telecommunications providers and
with persons who can prove they were damaged by illegal disclosures of
their personal information. I urge our colleagues to support the
Specter-Whitehouse amendment as the fair way of protecting both
telecommunications providers but also protecting what should be a very
basic principle of our Constitution--you cannot and should not
needlessly remove a remedy from people who have been injured. To do
that retroactively runs contrary to everything we believe in this
Constitution about the rights of American citizens to be protected and
to have remedies when they are wronged.
amendment no. 3941
Mr. FEINGOLD. Madam President, last week the Senate adopted, by voice
vote, amendment No. 3941 offered by the vice chairman of the
Intelligence Committee, which would require the FISA Court to rule on
challenges to the Government's directives within a specified timeframe.
I opposed the
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amendment because it unnecessarily restricts the court's ability to
consider important constitutional and statutory issues related to this
legislation. The amendment limits the time for the court's
consideration of challenges to directives issued under this law to a
mere 30 days, unless ``necessary to comport with the due process clause
of the Fifth Amendment.'' There would be no other basis for the court
to extend its deliberations to a 31st day.
This amendment could have serious unintended consequences. There may
be many decisions that the court can, in fact, make in a relatively
short period of time. But there may also be issues that the court will
have to consider that could take longer. There have been many questions
raised about the meaning of many of the provisions of this bill. The
court will certainly be required to address some of these complex
statutory interpretation issues. There have also been serious
constitutional concerns raised about this bill that the court will need
to consider.
This is new legislation that radically changes how surveillance is
conducted, and there are numerous complex issues that the court will be
called on to resolve. And, unlike this body, the court will have to
consider in detail the legality and constitutionality of the law as it
is implemented, which could involve extensive factual development, as
well as review of relevant precedent.
There are many other reasons why the court would want to extend its
deliberations that would not implicate fifth amendment due process
rights. A party may seek more time to prepare its pleadings. The court
may request more information. The Government may wish to prioritize
other more pressing issues or may have a host of strategic reasons for
seeking delay; or a crisis or national emergency could require the
immediate attention of the intelligence personnel and lawyers assigned
to present the Government's case to the court and could occupy the
court's time and attention. Under those circumstances, we would surely
want the court to focus its attention on the emergency at hand. But if
there were also a pending challenge to a directive that the court must
decide in just 30 days, it could be faced in a terrible dilemma. And
only permitting the court to extend its consideration of a challenge if
a refusal to do so rises to the level of a violation of the fifth
amendment is far too restrictive.
I would also think there might be some concern that if the court does
not have enough time to decide whether to enforce a directive issued by
the Government, it could very well simply decide not to.
The Judicial Conference of the United States has made many of these
same arguments in a letter sent today to Senators Reid and McConnell.
The conference warns that the amendment could limit the court's ability
to consider complex issues or could force the court to divert its
attention from other pressing matters. Indeed, the letter warns that
``the national security significance of the cases before the FISC means
there is a chance this provision could force the FISC by statute to
forego consideration of another matter of paramount importance.''
This amendment could seriously shortchange the court's ability to
determine whether the Government is acting legally or whether the bill
is constitutional, on its face or as implemented in a particular
situation. For that reason, I opposed this amendment.
amendment no. 3913
Mr. LEAHY. Madam President, the bill we are now considering will
provide an enormous expansion of the government's ability to conduct
warrantless surveillance. I support providing our intelligence agencies
with the flexibility they need to surveil foreign targets that may be
intending us harm, but we must be similarly vigilant in making certain
that this surveillance is limited to its intended scope.
I commend Senator Feingold in crafting an amendment that would
prohibit what is known as ``reverse targeting'' and would ensure that
this new surveillance is directed only toward its overseas targets and
not toward surveillance of innocent Americans without a court order.
The Intelligence Committee's bill, S. 2248, requires the government to
seek an order from the FISA Court only when ``the'' purpose of the
government's acquisition is the targeting of Americans inside of the
United States. I fear that the government will read into this language
a loophole and it may justify eavesdropping on American's private
communications, without any court order, as long as they have some
interest in an overseas ``target,'' even if a significant purpose of
the interception is to collect the communications of a person in the
United States. Is this fear legitimate? I think so, given this
administration's history of convoluted, disingenuous legal
interpretation. We must be clear in our language, because we know what
they will do if we are not.
Senator Feingold's provision would clarify that if the government
intercepts the communications of a person overseas but ``a significant
purpose'' of the surveillance is to collect the communications of the
U.S. person with whom the person overseas is communicating, the
government must get a court order. This is an important distinction. In
light of the sweeping powers we are granting to the government to
conduct surveillance without up front court review, we must also cabin
the scope of the government's power to eavesdrop on the communications
of innocent Americans.
amendment no. 3915
The authorities and procedures in S. 2248 would permit the FISA
Court to review government targeting and minimization procedures. If,
however, the Court finds certain aspects of those procedures to be
inadequate--even grossly inadequate--S. 2248 provides no authority to
restrict the use of information already collected using those
procedures. That means that the government would be free to access,
use, and share information about private communications that was
collected in violation of the law.
Senator Feingold's amendment would ensure that the Court has the
authority to stop a continuation, and perhaps escalation, of the harm
caused by the government's use of illegal procedures. This provision
would limit the government's use and dissemination of illegally
obtained information if the FISA Court later determines that the
procedures were not reasonably designed to target people outside of the
United States or to adequately minimize the use of information about
U.S. persons. It is important to note that, under this provision, if
the government acts to address the Court's concerns and correct these
procedures it would then be free to use and disseminate the information
it acquired.
This is not a novel application of law under FISA. FISA's existing
emergency provision holds that if the government begins emergency
surveillance without a warrant, and the FISA Court then determines the
surveillance to be unlawful, the government cannot use and disseminate
the information it acquired except under very limited circumstances.
Senator Feingold's amendment simply applies these reasonable safeguards
to the new and broadly expanded authority we are now giving to the
government. This provision represents a crucial safeguard for the
protection of Americans' privacy rights.
amendment no. 3927
I strongly oppose the blanket grant of retroactive immunity in the
Intelligence Committee bill. This administration violated FISA by
conducting warrantless surveillance for more than 5 years. They got
caught. If they had not, they would probably still be doing it. In the
wake of the public disclosure of the President's illegal surveillance
of Americans, the administration and the telephone companies are being
sued by citizens who believe their privacy and constitutional rights
have been violated. Now, the administration is trying to force Congress
to terminate those lawsuits in order to insulate itself from
accountability. We should not allow this to happen.
The administration knows that these lawsuits may be the only way that
it will ever be called to account for its flagrant disrespect for the
rule of law. In running its illegal program of warrantless
surveillance, the administration, relying on legal opinions prepared in
secret and shown to only a tiny group of like-minded officials, ensured
the administration received the advice they wanted. Jack Goldsmith, who
came in briefly to head the Justice Department's Office of Legal
Counsel described the program as a ``legal
[[Page S844]]
mess.'' This administration does not want a court to have the chance to
look at this legal mess. Retroactive immunity would assure that they
get their wish.
The Judiciary Committee and Intelligence Committee tried for well
over a year and a half to obtain access to the information that our
members needed to evaluate the administration's arguments for immunity.
Indeed, over a year ago Chairman Specter was prepared to proceed to
subpoena information from the telephone companies in light of the
administration's stonewalling. It was only just before the Intelligence
and Judiciary Committees' consideration of this bill that committee
members finally obtained access to a limited number of these documents.
Senators who have reviewed the information have drawn very different
conclusions.
Now this matter is before all Senators and it is well past time for
all Members to have access to the information they need to make
informed judgments about the provisions of these bills. The majority
leader wrote to the administration stating that Members of the Senate
need that access. We have had no response--the administration has
ignored the request. It is clear that they do not want to allow
Senators to appropriately evaluate these documents and draw their own
conclusions.
There are reports in the press that at least one telecommunications
carrier refused to comply with the administration's request to
cooperate with the warrantless wiretapping. All Senators should have
the opportunity to know these facts, so they can make an informed
judgment about whether there were legitimate legal concerns that other
cooperating telecommunications companies should have raised. Indeed, if
other carriers had been more careful in their legal analysis, and had
raised these concerns, would the administration have had a greater
incentive to come to the Congress and get the law changed? Would we
have been spared five long years of illegal behavior by this
administration?
I have drawn very different conclusions than Senator Rockefeller
about retroactive immunity. I agree with Senator Specter and many
others that blanket retroactive immunity, which would end ongoing
lawsuits by legislative fiat, undermines accountability. Senator
Specter has been working diligently first as the chairman of the
Judiciary Committee and now as its ranking member to obtain judicial
review of the legality of the warrantless wiretapping of Americans from
2001 into last year. The check and balance the judiciary provides in
our constitutional democracy has an important role to play and should
be protected. Judicial review can and should provide a measure of
accountability.
We hear from the administration and some of our colleagues that we
must grant immunity or the telephone companies will no longer cooperate
with the Government. Senators should understand that even if we do not
grant retroactive immunity, telecommunications carriers will still have
immunity for actions they take in the future. Their cooperation in the
future will still be required by legal orders and they will not be
subject to liability for doing what the law requires. If they follow
the law, they have immunity.
We have heard some people argue that the telephone companies should
get immunity because they complied with the Government's requests to
engage in warrantless surveillance out of patriotism. I do not doubt
the patriotism of the executives and employees of these companies, but
this month we learned that these companies cut off wiretaps, including
wiretaps of terrorists, because the FBI failed to pay its telephone
bills. How can this administration talk repeatedly, on the one hand,
about the importance of FISA surveillance, and on the other hand, fail
to pay its phone bills and jeopardize this critical surveillance. But
beyond that, the fact that carriers were willing to cut off
surveillance when they were not paid--presumably some of the same
carriers that agreed to conduct warrantless surveillance--undercuts the
argument about their patriotic motives.
As one former FBI special agent has said, ``It sounds as though the
telecoms believe it when the FBI says the warrant is in the mail, but
not when they say the check is in the mail.''
I believe the rule of law is important in protecting the rights of
Americans from unlawful surveillance. I do not believe that Congress
can or should seek to take those rights and those claims from those
already harmed. Moreover, ending ongoing litigation eliminates perhaps
the only viable avenue of accountability for the Government's illegal
actions. Therefore, I say again: I oppose blanket retroactive immunity.
I do support and will vote for the amendment that Senators Specter
and Whitehouse will offer on ``substitution.'' This amendment would
place the Government in the shoes of the private defendants that acted
at its behest and let it assume full responsibility for illegal
conduct. The Specter-Whitehouse amendment contains an explicit waiver
of sovereign immunity, which will allow the lawsuits to proceed against
the United States, and it makes other changes designed to assure that
the Government does not have advantages as a defendant that the
carriers would not have. While I see no need to deal with the issue of
lawsuits against the providers in this Congress, I believe that
substitution is a fairer means of dealing with these lawsuits than full
retroactive immunity, because it would give the plaintiffs their day in
court, and it would allow for a measure of accountability for the
administration's actions in the years following 9/11.
This administration violated FISA by conducting warrantless
surveillance for more than 5 years. They got caught, and the
telecommunications carriers got sued. Now, the administration insists
that those lawsuits be terminated by Congress, so that it does not have
to answer for its actions. Retroactive immunity does more than let the
carriers off the hook. It shields this administration from any
accountability for conducting surveillance outside of the law. It would
stop dead in their tracks the lawsuits that are now working their way
through the courts, and leave Americans whose privacy rights have been
violated with no chance to be made whole. These lawsuits are perhaps
the only avenue that exists for an outside review of the Government's
actions. That kind of assessment is critical if our Government is to be
held accountable. That is why I do not support legislation to terminate
these legal challenges and I will vote to strike it.
Madam President, I yield the floor, and I suggest the absence of a
quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. REID. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Whitehouse). Without objection, it is so
ordered.
____________________
[Congressional Record: February 11, 2008 (Senate)]
[Page S845]
FISA AMENDMENTS ACT OF 2007--Continued
Mr. REID. Mr. President, I ask unanimous consent that the Senate
resume consideration of S. 2248.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. REID. Mr. President, I just finished a conference with the
distinguished Republican leader, and we both believe this is the best
way to go. We will, at some time, finish the intelligence conference
report one way or the other, and following that, we will likely move to
the Indian health bill to try to complete that.
We have had a productive day. It is my understanding there are only
two speakers left on the FISA legislation, and that is Senator Dodd and
Senator Specter. If there are others, they should notify the cloakroom
forthwith.
We have eight votes we are going to do tomorrow, and staff is working
on a consent to get to those votes. If we finish them, regardless, it
would be better if we do this by consent. We are going to start the
votes early in the morning. There will be no morning business tomorrow.
We have eight votes to do tomorrow and complete a lot of talk on this
bill, and that way we can send it to the House very quickly and they
will come back and tell us something, we hope, by the end of the week.
We all hope it is not necessary that we have an extension, but time
will tell.
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. REID. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. REID. Mr. President, I ask unanimous consent that when the Senate
resumes S. 2248 on Tuesday morning, February 12, the sequence of votes
on remaining amendments occur in the following order: Whitehouse 3920,
subject to a 60-vote threshold; Feinstein 3910, subject to a 60-vote
threshold; Feingold 3979; Dodd 3907; Feingold 3912; Bond-Rockefeller
3938, as modified; Specter-Whitehouse 3927; Feinstein 3919, with a 60-
vote threshold; and that each leader control a total of 10 minutes of
debate time to be used prior to any of the votes; that the provisions
of the previous order governing debate limitations and vote limitations
remain in effect.
We are going to do as many of these as we can before the weekly party
conferences. With a little bit of luck, we can finish all of them.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. REID. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. DURBIN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________
[Congressional Record: February 11, 2008 (Senate)]
[Page S862-S878]
FISA
Amendment No. 3927
Mr. SPECTER. Mr. President, I have sought recognition to comment on a
pending amendment sponsored by Senator Whitehouse and myself. I am
delighted to see Senator Whitehouse occupying the chair. I have a
receptive, though a limited, audience.
I begin by thanking the Senate personnel for staying late. Monday is
a day when I customarily travel the State--Scranton, Harrisburg--and
arrive late in the day. I am pleased to see Senator Dodd is also
speaking so that my late arrival is not the sole cause. But we do have
to work late because the majority leader has scheduled votes on these
issues tomorrow. I wanted an opportunity to supplement earlier
statements which I made on this issue because I believe it is an
important issue on which the Senate needs to focus.
The legislation and oversight and judicial review since 9/11 have
provided a historic confrontation among the three branches of
Government on the basic doctrine of separation of powers. When I say it
is historic, I do not believe that is an overstatement. There is no
doubt that the events of 9/11 require a vigorous response by the United
States to fight terrorism. The brutal, heinous murder of 3,000
Americans and the continuing threat of al-Qaida worldwide require that
we fight terrorism with great vigor. At the same time, it is important
that constitutional rights be maintained. The fact is that the Congress
has been very ineffective in limiting the expansion of Executive power.
Only the courts have been able to maintain a balance.
The specific issue involves the effort to give the telephone
companies retroactive immunity and foreclose some 40 lawsuits in some
Federal court which are pending at the present time. There is no doubt
that the information reportedly obtained by the telephone companies for
national security is vital and needs to be maintained. But there is a
way to keep that information flowing and still maintain the
constitutional balance by implementing the amendment which Senator
Whitehouse, the Presiding Officer, and I have introduced, the essence
of which is to substitute the U.S. Government as the party defendant.
In that situation, the Government would have the identical defenses
the telephone companies now have--no more, no less. For example,
customarily the Federal Government has the defense of sovereign
immunity. You can't sue the Federal Government unless the Government
consents or unless the Congress of the United States says
[[Page S863]]
you can sue the Government. The Congress of the United States is the
final determiner of that; of course, with Presidential signature or
with an override, if the President vetoes.
So in this situation, the Government being substituted for the
telephone companies would not have the governmental immunity defense
because the telephone companies do not have it. The Government would
have the state secrets defense because it has intervened in the cases
against the telephone companies to assert the defense of state secrets,
so that if state secrets are involved, that may block the plaintiffs'
cases. Under our amendment the Government would continue to have the
availability of a state secrets defense.
I doubt very much there will be any monetary awards in these cases,
but that is not for me to decide. That is for the judicial process to
decide, to run its course.
When I say the legislative branch has not been successful in
oversight in limiting the expansion of Executive power, I do so because
of what has happened with the terrorist surveillance program.
The Foreign Intelligence Surveillance Act is an explicit statute
which is the law of the land, explicitly stating that wiretapping can
occur only with judicial authority. The tradition is for the Government
to present an affidavit containing probable cause to warrant the
wiretap that goes before a judge. The judge reviews it. If probable
cause is present, then there may be an invasion of privacy under our
Constitution with that constitutional safeguard of a neutral
magistrate.
The President has taken the position that he does not have to be
bound by the Foreign Intelligence Surveillance Act because of his
article II powers under the Constitution. He is arguing that the
statute cannot affect the President's constitutional authority, and he
is correct as a principle of law. But the question is whether he has
that authority. And the terrorist surveillance program was secret from
the time it was put into effect shortly after 9/11/2001 until mid-
December 2005, when the Senate was in the midst of the final day of
debate on the PATRIOT Act re-authorization, which was to give the law
enforcement authorities broader power.
I chaired the Judiciary Committee at that time and was arguing to
move ahead with the PATRIOT Act re-authorization when that morning the
news came across that there had been a secret program in effect. That
scuttled our efforts to get the PATRIOT Act passed that day, with the
comment being made that some were prepared to vote for the PATRIOT Act
re-authorization until they found out about this secret program they
hadn't known about.
A long time has passed since December 2005. That matter is still tied
up in the courts. But the courts, at least, are available to make a
decision on that ultimately--it may take some time, but to make a
decision on it.
Similarly, the administration, the President has ignored the National
Security Act of 1947 which explicitly states that the executive branch
must give notice to the intelligence committees of the House and Senate
where programs are carried out like the terrorist surveillance program.
The President did not follow that statute. Again, the underlying
contention is that he has power under article II so that he doesn't
have to follow the statute.
Finally, he did make those matters available. He did so on the eve of
the confirmation of General Hayden as head of the Central Intelligence
Agency. So finally, under political pressure--he couldn't get General
Hayden confirmed unless he made them available--he did so.
We have had other illustrations. We have had the signing statements
where the President issues a statement when he signs legislation into
law which modifies what Congress has passed.
I will be very specific. The Constitution provides that each House
passes legislation. There is a conference submitted to the President.
He either signs it or vetoes it. But when the President got the PATRIOT
Act re-authorization with provisions which had been negotiated as to
Judiciary Committee oversight on how those law enforcement powers could
be carried out, the President issued a signing statement--and this had
been negotiated between the Judiciary Committee and the President's
employees--the President issued a signing statement and changed the
thrust of the statute.
In a widely publicized matter involving interrogation techniques, the
Senate passed, on a 90-to-9 vote, limitations on Executive power in the
Detainee Treatment Act. There was a meeting between President Bush and
Senator McCain, author of the provision, limiting executive authority.
We passed the bill, and the President signed it but with reservation
that his executive authority under article II did not deprive him of
authority to handle the situation as he chose. But in the midst of all
this, the courts have been effective. The courts have limited Executive
power.
In the case of Hamdan v. Rumsfeld, the Supreme Court held that the
President's military commissions violated the Uniform Code of Military
Justice and lacked any congressional authorization. In short, the Court
held the President cannot establish a military commission to try Hamdan
unless Congress granted him the authority to do so.
In Hamdi v. Rumsfeld, the Supreme Court said that due process
requires a citizen held as an enemy combatant be given a meaningful
opportunity to contest the factual basis for that detention before a
neutral decisionmaker.
In the celebrated case of Rasul v. Bush, the Supreme Court held that
the Federal habeas corpus statute gave district courts jurisdiction to
hear challenges by aliens held at Guantanamo Bay.
In Doe v. Gonzales in September of last year, the U.S. District Court
for the Southern District of New York struck down the permanent gag
orders issued with national security letters as a violation of the
First Amendment.
In Hepting v. AT&T, Chief Judge Vaughn Walker of the Northern
District of California held that the publicly available information
concerning the terrorist surveillance program was not subject to the
state secrets defense.
In the very heavily publicized case of Padilla, the fourth circuit
initially held that the executive had the authority to hold Padilla as
an enemy combatant in September of 2005. Then when Padilla petitioned
the Supreme Court for certiorari, it looked as if that might be
overturned. The Government moved for authorization to transfer Padilla
and to vacate the decision. They anticipated an unfavorable decision
and they tried to moot it out; that is, render it meaningless. Judge
Luttig, writing for the fourth circuit, was very strong in rejecting
the Government's position, saying this:
Because we believe that the transfer of Padilla and the
withdrawal of our opinion at the government's request while
the Supreme Court is reviewing this court's decision of
September 9 would compound what is, in the absence of
explanation, at least an appearance that the government may
be attempting to avoid consideration of our decision by the
Supreme Court, and also because we believe that this case
presents an issue of such especial national importance as to
warrant final consideration by that court--
That is, the Supreme Court--
we deny both the motion and the suggestion.
Pretty strong language, telling the Government what they can and what
they can't do.
The Government is not going to listen to the Congress, but the
Government listens to the court.
When the issue arose as to the destruction of the CIA tapes, Senator
Leahy and I wrote the Attorney General asking for information as to
what had happened, and the Attorney General wrote back and said: We are
not going to give you any information at this time. But we got no
information. Then the word was that it was political, what was being
done. Then a Federal district court ordered the Government to file a
report with the court as to what had happened on the destruction of the
CIA tapes. Well, nobody said the court decision was political. You
can't challenge the judicial decision except to take an appeal, and
that is the process we follow.
I recently made a trip to Pakistan. Congressman Patrick Kennedy and I
went to Pakistan to take a look at what was going on there because
Pakistan is so important. The country has nuclear weapons but a very
unstable government. We met with President Musharraf. We were scheduled
to meet with Benazir Bhutto at 9 p.m. on December 27. While we were
preparing for
[[Page S864]]
the meeting--she had scheduled it at 9 o'clock in the evening because
she had a full day of campaign activities. While we were preparing for
the meeting, we found out about 6:30, 7 o'clock, she had been
assassinated, which was a terrible blow, not only on a personal level.
I had come to know her to some extent when she was Prime Minister of
Pakistan. But she had the potential as an extraordinary political
figure to unify Pakistan. She had a remarkable educational background.
She was educated at Harvard, also at Oxford; very glamorous, movie star
beautiful, a great political figure with a chance to unify the country.
Now we start from scratch.
Congressman Kennedy and I questioned President Musharraf about what
he was doing. He had gotten $10 million since 9/11 to act against al-
Qaida. Why hadn't Osama bin Laden been captured? There were a lot of
indications that the money was not being used for the purpose for which
it was appropriated. President Musharraf said to Congressman Kennedy
and me that he didn't like the conditionality, and we pointed out to
him that is the way we function. We don't give $10 million for use by
President Musharraf any way he likes. Then we raised a question about
what President Musharraf was doing with the Supreme Court. He held the
Chief Justice in house arrest. He dismissed many of the justices. He
appointed a favorable Supreme Court. Well, the United States is not
Pakistan. In Pakistan, the chief executive, President Musharraf, tells
the Supreme Court what to do. He suspends the Chief Justice. He fires
half of the court.
In the United States, under our checks and balances, the President of
the United States listens to what the Supreme Court of the United
States says. A fundamental of our society is the separation of powers.
That is the very basis of how we function in the United States, with
the executive having certain powers, the Congress having certain
powers, and the Court having certain powers. Regrettably, the evidence
is conclusive that the Congress has been ineffective in congressional
oversight. The protocol is the chairman of the Judiciary Committee and
the ranking member are told about what is happening on serious
constitutional issues. I was chairman of the Judiciary Committee when
the terrorist surveillance program was in operation, and neither the
ranking member, Senator Leahy, nor I, were told about what was going
on. The President is taking the position that he is not bound by
statute, and he may be right. He may be right, but in our society, the
courts have to make that decision.
I believe it would be a serious step to close down the courts where
some 40 cases are pending. Let them go through the judicial process.
Now if we had a choice of having the benefit of what the telephone
companies are doing and closing down the courts, that might be one
thing. But Senator Whitehouse and I have structured an amendment,
cosponsored by other Senators, to have both of those benefits
operative. We can maintain the telephone companies providing whatever
information they are providing, and at the same time keep the courts
open by substituting the Government as the party defendant.
We are continuing in the midst of an historic confrontation. It is
testing the mettle of our constitutional process. It is testing the
mettle of our constitutional process because of the importance of being
vigorous in fighting al-Qaida. The telephone companies have been good
citizens and they ought not to be held liable for whatever it is they
have done. But the Government can step in, and if there are verdicts
which, as I say, I very much doubt, it is a cost of national defense.
It ought to be paid by the Treasury of the United States, and the
courts ought to be kept open.
Senator Dodd is about to address the Chamber. I know he is opposed to
granting retroactive immunity, and he has a very powerful argument, and
may the Record show he is nodding in the affirmative. That is what we
lawyers do when we have a little support, even if it is only a nod of
the head or a gesture. I greatly admire what Senator Dodd is doing here
and what he has done since he was elected to the Senate in 1980. He and
Senator Alan Dixon came to the Senate at the same time as two newly
elected Senators on the Democratic side of the aisle. They were
outnumbered by Republican Senators who were elected, 16 of us for that
election, 16 to 2. But now Senator Dodd has narrowed the odds and only
Senator Grassley and I remain of those 16, so it is only 2 to 1. Of
course, when it was 2 to 16 it was a fair fight, and when it is 1 to 2,
Senator Dodd may have the advantage. Who knows. I say that only in
jest. But we are about to hear some strong arguments and some real
oratory on these issues.
But we don't have to make a choice between having the information and
having the courts open. You can do both if the amendment which Senator
Whitehouse and I have offered is adopted.
I thank the Chair and yield the floor and defer to my distinguished
colleague from Connecticut.
The PRESIDING OFFICER. The Senator from Connecticut is recognized.
Mr. DODD. Mr. President, first, let me thank my good friend from
Pennsylvania, whom I always enjoy listening to. I enjoyed particularly
hearing his comments about President Musharraf and Benazir Bhutto, who
I had the privilege and pleasure of knowing for some time over the last
20 years. As do all of us here, I care deeply about what happens in
Pakistan, and I admire remarkable leadership. I was stricken by her
loss and the tragic way in which she lost her life in her effort to
bring democracy to her country. So I associate myself with the remarks
of Senator Specter who was there, I know. In fact, I listened with
great interest to his comments and thoughts at the time when he and
Congressman Patrick Kennedy were there on a mission together. So I once
again thank him.
I know he talked about our arrival some 27 years ago, when the two of
us arrived here, and it is true there were 16 Republicans and two
Democrats. I always like to point out that there are two fine
Republicans still here, Senator Grassley and Senator Specter, and 50
percent of the Democrats who were elected that year are still in this
Chamber. So I remain of the two of us, Alan Dixon being the other
Member.
I look up and I see the Presiding Officer. Any time I get up to
address this issue, the distinguished Senator from Rhode Island is the
Presiding Officer. He has heard my thoughts on this issue now since
December. I think it has been almost 20 hours I have spoken on the
subject matter of the Foreign Intelligence Surveillance Act and the
issue of retroactive immunity. I will be trying to convince my
colleagues to vote against cloture tomorrow so we can force the
committees to go back and adopt the Judiciary Committee approach rather
than the one adopted by the Intelligence Committee which gives
retroactive immunity to the telecom industry.
I note as well that the House, the other body, in its consideration
of this matter, agreed with the Judiciary Committee and did not include
retroactive immunity in their Foreign Intelligence Surveillance Act
amendments. The House reached the conclusion that the retroactive
immunity was not warranted, that the courts should be given the
opportunity to decide the legality or illegality of the telecom
industry's decision to agree to the administration's request to allow
the unfettered surveillance of millions of telephone calls, faxes, and
e-mails.
Senator Feingold of Wisconsin and I have offered an amendment to
strike section 2 of the bill, which would then put the legislation
roughly on parity with the House-passed legislation and deliver that to
the President. The President has said: If you do that, I will veto the
bill, which I regret deeply. The idea that you veto all of the other
amendments dealing with foreign intelligence because you didn't provide
retroactive immunity to a handful of telephone companies is rather
breathtaking when you consider the vulnerability that can pose and the
inability of us to collect the important surveillance, the intelligence
we need to keep our country secure and safe.
Mr. President, I am not normally accustomed to engaging in lengthy
conversations about any subject. Certainly it is the privilege and
right of every Senator to engage in extended debate on a subject about
which they care passionately. I cannot think of another occasion in the
last 20 years, 25 years, when I have engaged in extended debate on any
subject matter. It doesn't suggest there haven't been moments
[[Page S865]]
when I thought it was warranted, and others certainly provided that
opportunity or we resolved the matters prior to using that tool that
has been available to every Member of this Chamber since the founding
of our Republic. But I care deeply about this issue. It is not just a
passing issue; it is not just one section of a bill.
It goes far beyond the words or language of even the companies
involved here. It goes to the very heart of who we are as a nation, as
a people. Our willingness or ability to understand the value and
importance of the rule of law is an issue that transcends any other
issue we grapple with, the understanding of how important it is to
protect and defend the rule of law, our Constitution, to guarantee the
rights and liberties of every citizen of our country.
Tonight, I will engage in a rather lengthy conversation about this
issue, with my apologies to the staff and others who have to spend time
listening to this conversation. But I want people to know how important
this issue is. This is very important. It doesn't get any more
important than this one as to whether millions of Americans' telephone
conversations, e-mails, and faxes over the past 5 years were listened
to, eavesdropping that would still be ongoing were it not for disclosed
reports by journalists and a whistleblower that revealed this program.
It would still be ongoing, without a court order and without a warrant.
That is dangerous.
The very rationale which gave birth to the FISA some three decades
ago was specifically designed to deal with the very fact situation that
causes me to rise and talk about this subject matter this evening. FISA
intended to balance two legitimate issues--gathering information to
keep us secure, while protecting the rights and liberties of every
single American citizen against an unwarranted invasion of their
privacy. It has never been easy to maintain that balance. It is never
perfect, as I said earlier this afternoon, but it ought to be our
common goal, regardless of party and ideology, to do our very best to
strike that balance. That is what this issue is, and that is why it is
so important.
If we set the precedent by a vote tomorrow that keeps this provision
in the bill, and it remains so in the conference with the House of
Representatives, we will be setting a precedent which, I suspect,
future administrations may point to under a different fact situation,
at a different hour, at a different time, when they may decide it is
not in their interest to go to a FISA Court. The next request by an
administration to provide information may be medical or financial or
highly personal information, and they will point to a time when the
Senate was given the opportunity to insist that a series of telephone
companies go to the courts of this country to determine whether they
did the legal thing by turning over information, and the Senate said:
No, we are going to grant retroactive immunity.
We will never determine whether you had the right to do so, and
implicitly it would sanction the activity by our refusal to strike the
language granting the immunity. That is what is at stake in the vote
tomorrow, if we are unable to defeat cloture.
That is why I am determined to do everything I can to convince my
colleagues of an alternative course. So I urge my colleagues, in the
strongest terms that I can, to vote to strip the retroactive immunity
from this bill and, if it is not stripped, to vote against cloture.
Not only would this bill ratify a domestic spying regime that has
already concentrated far too much unaccountable power in the
President's hands, in its current form it places above the law the
telecommunications companies that may have violated the privacy and
trust of millions of American citizens.
In December, I opposed retroactive immunity on the Senate floor for
some 10 hours in this Chamber. In the weeks since then, I have
continued to speak out against it.
Unwarranted domestic spying didn't happen in a panic or short-term
emergency--not for a week or a month or even a year. If it had, I might
not be here this evening. But the spying went on, relentlessly, for
more than five years. And if the press didn't expose it, I imagine it
would still be happening today.
I might not be here either if it had been the first offense of a new
administration. Maybe not if it even had been the second or third, I
might add. I am here this evening because after offense after offense
after offense, my frustration has found its breaking point. I am here
this evening because of a pattern of continual abuses against civil
liberties and the rule of law. When faced with that pattern, we should
not act in the interest of the Democratic Party or the Republican
Party. We should act in the interest of the Constitution of the United
States because we are, above anything else, its temporary custodians.
If these abuses had been committed by a President of my own party, I
would have opposed them just as passionately as I do this evening.
I am here tonight because of the latest link in that long chain of
abuse. It is alleged that giant telecom corporations worked with our
Government to compile America's private domestic communications records
into a database of enormous scale and scope. Secretly and without a
warrant, these corporations are alleged to have spied on their own
American customers.
Here is only one of the most egregious examples: According to the
Electronic Frontier Foundation:
Clear, firsthand whistleblower documentary evidence
[states] . . . that for year on end, every e-mail, every text
message, and every phone call carried over the massive fiber
optic links of sixteen separate companies routed through
AT&T's Internet hub in San Francisco--hundreds of millions of
private, domestic communications--have been . . . copied in
their entirety by AT&T and knowingly diverted wholesale by
means of multiple ``splitters'' into a secret room controlled
exclusively by the NSA.
The phone calls of millions of Americans diverted into a secret room
controlled by the NSA. That allegation still needs to be proven in a
court of law. But before that happens, there is an even simpler
question: What do you see in it?
If you only see cables and computers there, the whole thing seems
almost harmless. Certainly nothing to get worked up about--a routine
security sweep and a routine piece of legislation authorizing it. If
that is what you see in the NSA's secret room, I imagine you will vote
to extend that immunity.
If you see a vast dragnet for millions of Americans' private
conversations, conducted by a Government agency without a warrant, then
I believe you will recognize what is at stake. You will see that what
is at stake is the sanctity of the law and the sanctity of our privacy
as American citizens. You will then oppose this retroactive immunity.
Maybe that sounds overdramatic to some of my colleagues. They will
ask: What does it matter, at the end of the day, if a few corporations
are sued? They will say: This is a small issue, an isolated case. The
law is still safe and sound.
I find that view profoundly wrong. But I will give them this: As long
as they keep this small, they win. As long as they keep this case
isolated and technical, they win. As long as it is about a few
lawsuits, and nothing more, they win. They are counting on the American
people to see nothing bigger than that.
I am counting on them to see more and to fear less. So much more is
at stake than a few phone calls, a few companies, and a few lawsuits.
Mr. President, equal justice is at stake--justice that makes no
exceptions. Openness is at stake--an open debate on security and
liberty, and an end to warrantless, groundless spying. Retroactive
immunity stands against those principles.
It doesn't say: I trust the American people; I trust the courts and
judges and juries to come to just decisions. Retroactive immunity says:
Trust me.
There are classified documents, we are told, that prove the case for
retroactive immunity beyond a shadow of a doubt. But we are not allowed
to see them. I have served in this body for more than a quarter
century, and I am not allowed to see these documents at all. I am told
to trust somebody, believe people when they stand up and tell you
exactly what is here. Neither are the majority of my colleagues allowed
to see them. We are left entirely in the dark to draw the conclusion
that there is nothing to be concerned about. The courts don't need to
look at this.
Obviously, I cannot speak for my colleagues, but I would never take
``trust
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me'' for an answer--not even in the best of times.
``Trust me.'' It is the offer to hide ourselves in the waiting arms
of the rule of men. I cannot put it better than this:
``Trust me'' government is government that asks that we
concentrate our hopes and dreams on one man; that we trust
him to do what's best for us. My view of government places
trust not in one person or one party, but in those values
that transcend persons and parties.
Those words were spoken by Ronald Reagan in 1980, the former
President of the United States. Those words are every bit as true
today, even if some have chosen to forget them. But times of threat and
fear blur our view of transcendent values; and those who would exploit
those times urge us to save our skins at any cost.
The rule of law has rarely been so fragile. It has really seemed less
compelling. What, after all, does the law give us? It has no parades,
no slogans; it lives in books and precedents. It cannot entertain us or
captivate us or soothe our deepest fears. When set against everything
the rule of men has to offer, the rule of law is mute.
That is the precise advantage seized upon, in all times, by the law's
enemies.
It is a universal truth that the loss of liberty at home is
to be charged to the provisions against danger . . . from
abroad.
Those are the words of James Madison, and they are worthy of
repetition.
It is a universal truth that the loss of liberty at home is
to be charged to the provisions against danger . . . from
abroad.
James Madison, the father of the Constitution, made that prediction
more than two centuries ago. With the passage of this bill, his words
would be one step closer to coming true. So it has never been more
essential that we lend our voices to the law and speak on its behalf.
This is our defining question, the question that confronts every
generation of Americans since the founding of our Republic: the rule of
law, or the rule of men?
How many times must we get the wrong answer?
To those who say this is just about a few telecoms, I answer that
this is about contempt for the rule of law, large and small.
This is about the Justice Department turning our Nation's highest law
enforcement officers into patronage plums, and turning the impartial
work of indictments and trials into the machinations of politics.
This is about Alberto Gonzales coming before Congress to give us
testimony that was, at best, wrong, and, at worst, perjury.
This is about Congress handing the President the power to designate
any individual he wants an ``unlawful enemy combatant,'' hold that
individual indefinitely, and take away his or her rights to habeas
corpus--the 700-year-old right to challenge your detention. If you
think the Military Commissions Act struck at the heart of the
Constitution, well, it struck at the Magna Carta while it was at it.
If you think this only threatens a few of us, you should understand
that the writ of habeas corpus belongs to all of us. It allows anyone
to challenge their detention. Rolling back habeas corpus endangers us
all. Without a day in court, how can you prove that you are entitled to
a trial? How can you prove that you are innocent? In fact, without a
day in court, how can you let anybody know what you have been detained
for at all?
The Military Commission Act also gave President Bush the power some
say he wanted most of all: the power to get information out of
suspected terrorists--by almost any means. The power to use evidence
potentially gained from torture.
This is about torture--officially sanctioned torture. As a result of
decisions made at the highest levels of our Government, America is
making itself known to the world with stories like this one: A prisoner
at Guantanamo--to take one example out of hundreds--was deprived of
sleep for over 55 days, a month and 3 weeks. Some nights he was doused
with water or blasted with air conditioning. After week after week of
this delirious, shivering wakefulness, on the verge of death from
hypothermia, doctors strapped him to a chair--doctors, healers who took
the Hippocratic oath to ``do no harm''--pumped him full of three bags
of medical saline, brought him back from death, and sent him back to
his interrogators.
To the generation coming of age around the world in this decade, that
is America. Not Normandy, not the Marshall Plan, not Nuremberg.
Guantanamo.
This is about the CIA destroying tapes containing the evidence of
harsh interrogations--about the administration covering its tracks in a
way more suited to a banana republic than to the home of freedom.
This is about waterboarding, a technique invented by the Spanish
Inquisition, perfected by the Khmer Rouge, and in between, banned--
originally banned for excessive cruelty--by the Gestapo!
Waterboarding's not torture? Listen to the words of Malcolm Nance, a
26-year expert in intelligence and counterterrorism, a combat veteran,
and former Chief of Training at the U.S. Navy Survival, Evasion,
Resistance and Escape School.
To those who say that this is just about a few telecoms, I answer:
This is about contempt for the law, large and small.
This is about the Justice Department turning our Nation's highest law
enforcement offices into patronage plums, and turning the impartial
work of indictments and trials into the machinations of politics.
This is about Alberto Gonzales coming before Congress to give us
testimony that was at best, wrong--and at worst, perjury.
This is about Congress handing the President the power to designate
any individual he wants an ``unlawful enemy combatant,'' hold him
indefinitely, and take away his right to habeas corpus--the 700-year-
old right to challenge your detention. If you think that the Military
Commissions Act struck at the heart of the Constitution, you would be
understating things--it struck at the Magna Carta while it was at it.
And if you think that this only threatens a few of us, you should
understand that the writ of habeas corpus belongs to all of us--it
allows anyone to challenge their detention. Rolling back habeas rights
endangers us all: Without a day in court, how can you prove that you
are entitled to a trial? How can you prove that you are innocent? In
fact, without a day in court, how can you let anyone know that you have
been detained at all?
While training American soldiers to resist interrogation, he writes:
I have personally led, witnessed and supervised
waterboarding of hundreds of people. . . . Unless you have
been strapped down to the board, have endured the agonizing
feeling of the water overpowering your gag reflex, and then
feel your throat open and allow pint after pint of water to
involuntarily fill your lungs, you will not know the meaning
of the word. . . .
It does not simulate drowning, as the lungs are actually
filling with water. The victim is drowning. How much the
victim is to drown depends on the desired result . . . and
the obstinacy of the subject.
Waterboarding is slow motion suffocation . . . usually the
person goes into hysterics on the board. . . . When done
right it is controlled death.
In spite of all that, last week the White House declared that
waterboarding is not torture, that waterboarding is legal, and that, if
it chooses, America will waterboard again.
This is about Michael Mukasey coming before the Senate and defending
the President's power to openly break the law. When he came to the
Senate before his confirmation, Mr. Mukasey was asked bluntly and
plainly: Is waterboarding constitutional? Mr. Mukasey replied with a
head-scratching tautology:
If waterboarding is torture, torture is not constitutional.
Surely we can expect a little more insight from someone so famously
well versed in national security law. But Mr. Mukasey pressed on with
the obstinacy of a witness pleading the Fifth:
If it's torture. . . . If it amounts to torture, it is not
constitutional.
And that is the best this noted jurist, this legal scholar, this
longtime judge had to offer on the defining moral issue of this
Presidency: claims of ignorance. Word games.
And again last month, he refused categorically to denounce
waterboarding. In fact, Mr. Mukasey was asked the easiest question we
have in a democracy: Can the President openly break
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the law? Can he--as we know he has done already--order warrantless
wiretapping, ignore the will of Congress, and then hide behind nebulous
powers he claims to find in the Constitution?
Mr. Mukasey's response: The President has ``the authority to defend
the country.''
And in one swoop, the Attorney General conceded to the President
nearly unlimited power, as long as he finds a lawyer willing to stuff
his actions into the boundless rubric of ``defending the country.''
Unlimited power to defend the country, to protect us as one man sees
fit, even if that means listening to our phone calls, even if that
means holding some of us indefinitely.
This is about extraordinary rendition--outsourced torture. It is
about men this administration prefer we did not know exist. But we do
know.
One was a Syrian immigrant raising his family in Canada as a citizen.
He wrote computer code for a company called Math Works. He was planning
to start his own tech business. On a trip through New York's JFK
Airport, he was arrested by U.S. Federal agents. They shackled him and
bundled him into a private CIA plane which flew him across the Atlantic
Ocean to Syria.
This man spent the next 10 months and 10 days in a Syrian prison. His
cell was 3 feet wide, the size of a grave. Some 300 days passed alone
in that cell, with a bowl for his toilet and another bowl for his
water, and the door only opened so he could go wash himself once a
week, though it may have been more or less because the cell was dark
and he lost track of time.
The door only opened for one reason: for interrogators who asked him,
again and again, about al-Qaida. Here is how it was described:
The interrogator said, ``Do you know what this is?'' I
said, ``Yes, it's a cable,'' and he told me, ``Open your
right hand.'' I opened my right hand, and he hit me like
crazy. It was so painful, and of course I started crying, and
then he told me to open my left hand, and I opened it, and he
missed, then hit my wrist. And then he asked me questions. If
he does not think you are telling the truth, then he hits
again.
The jail and the torturers were Syrian, but America sent this man
there with full knowledge of what would happen to him because it was
part of a longstanding secret program of ``extraordinary rendition.''
America was convinced that he was a terrorist and wanted the truth
beaten out of him.
No charges were ever filed against him. His adopted nation's
government--Canada, one of our strongest NATO allies--cleared him of
all wrongdoing after a yearlong investigation and awarded him more than
$10 million in government compensation for his immense pain and
suffering--but not before he was tortured for 10 months in a cell the
size of a grave. Our own Government, I note, has refused to even
acknowledge that his case exists.
It is about a German citizen living in the city of Ulm with his wife
and four children. On a bus trip through Eastern Europe, he was pulled
off at a border crossing by armed guards and held for 3 weeks in a
hotel room where he was beaten regularly. At the end of 3 weeks, he was
drugged and shipped on a cargo plane to Kabul, Afghanistan.
For 5 months he was held in the Salt Pit, a secret American prison
staffed by Afghan guards. All he had to drink was stagnant water from a
filthy bottle. Again and again, masked men interrogated him about al-
Qaida. And finally, he says, they raped him.
He was released in May of 2004. Scientific testing confirmed his
story of malnourishment, and the Chancellor of Germany publicly
acknowledged that he was wrongfully held. What was his crime? Having
the same name as a suspected terrorist. Again, our own Government has
refused to even acknowledge this case exists.
There are not enough words in the world to cover the facts. If you
would like to define torture out of existence, be my guest. If you
would rather use a Washington euphemism--``tough questioning,''
``enhanced interrogation''--feel free. Feel free to talk about
``fraternity hazing'' such as Rush Limbaugh did, or to use a favorite
term of Vice President Cheney, ``a dunk in the water,'' as he described
waterboarding. Call it whatever you like. And when you are through with
all of your evasions, the facts will still be waiting for you--the fact
of waterboarding, ``controlled death,'' the fact of ``outsourced
torture,'' the fact of secret prisons, the fact of month-long sleep
deprivation, the fact of the President's personal power to hold
whomever he likes for as long as he would like.
Have I gone wildly off the topic? Have I brought up a dozen unrelated
issues? I don't think, Mr. President--I don't think I have at all.
We are deceiving our ourselves when we talk about the U.S. attorneys
issue, the habeas issue, the torture issue, the rendition issue, the
secrecy issue. As if each one were an isolated case! As if each one
were an accident! When we speak of them as isolated, we are keeping our
politics cripplingly small, and as long as we keep them small, the rule
of men is winning. There is only one issue here--only one. It is the
law issue, the rule of law. Does the President serve the law or does
the law serve the President?
Each insult to our Constitution comes from the same source. Each
springs from the same mindset. And if we attack this contempt for the
law at any point, we will wound it at all points.
That is why I am here this evening. Retroactive immunity is on the
table today, but also at issue is the entire ideology that justifies
it, the same ideology behind torture and executive lawlessness.
Immunity is a disgrace in itself, but it is far worse in what it
represents. It tells us that some believe in the courts only so long as
the verdict goes their way. It puts secrecy above sunshine and fiat
above the law.
Did the telecoms break the law? That I don't know. Pass immunity and,
of course, we will never know. A handful of favored corporations will
remain unchallenged. Their arguments will never be heard in a court of
law. The truth behind this unprecedented domestic spying will never see
the light of day.
``Law'' is a word that we barely hear from the supporters of
immunity. They offer neither a deliberation about America's difficult
choices in an age of terrorism nor a shared attempt to set for our
times the excruciating balance between security and liberty. They
merely promise a false debate on a false choice: security or liberty,
but never both.
I think differently, and I hope others do as well. I think that
America's founding truth is unambiguous: security and liberty, one and
inseparable, and never one without the other.
Secure in that truth, I offer a challenge to immunity supporters. You
want to put a handful of corporations above the law. Could you please
explain how your immunity makes any one of us any safer at all?
The truth is that a working balance between security and liberty has
already been struck. In fact, it has been settled for decades. For
three decades, in fact, FISA, the Foreign Intelligence Surveillance
Act, has prevented executive lawbreaking and protected Americans, and
that balance stands today.
In the wake of the Watergate scandal, the Senate convened the Church
Committee, a panel of distinguished members determined to investigate
executive abuses of power. Unsurprisingly, they found that when
Congress and the courts substitute ``trust me'' for real oversight,
massive lawbreaking can result.
They found evidence of U.S. Army spying on the civilian population,
Federal dossiers on citizens' political activities, a CIA and FBI
program that had opened hundreds of thousands of Americans' letters
without warning or warrant. In sum, Americans had sustained a severe
blow to their fourth amendment rights ``to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures. . . .''
But at the same time, the Senators of the Church Committee understood
that surveillance needed to go forward to protect the American people.
Surveillance itself was not the problem. Unchecked, unregulated,
unwarranted surveillance was. What surveillance needed, in a word, was
legitimacy. And in America, as the Founders understood, power becomes
legitimate when it is shared, when Congress and the courts check that
attitude which so often crops up in the executive branch--``if the
President does it, it's not illegal.''
The Church Committee's final report, ``Intelligence Activities and
the Rights of Americans,'' put the case powerfully
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indeed. Allow me to quote from that final report:
The critical question before the Committee was to determine
how the fundamental liberties of the people can be maintained
in the course of the Government's effort to protect their
security.
The delicate balance between these basic goals of our
system of government is often difficult to strike, but it
can, and must, be achieved.
We reject the view that the traditional American principles
of justice and fair play have no place in our struggle
against the enemies of freedom. Moreover, our investigation
has established that the targets of intelligence activity
have ranged far beyond persons who could properly be
characterized as enemies of freedom. . . .
We have seen segments of our Government, in their attitudes
and action, adopt tactics unworthy of a democracy, and
occasionally reminiscent of the tactics of totalitarian
regimes.
We have seen a consistent pattern in which programs
initiated with limited goals, such as preventing criminal
violence or identifying foreign spies, were expanded to what
witnesses characterized as ``vacuum cleaners,'' sweeping in
information about lawful activities of American citizens.
The Senators concluded:
Unless new and tighter controls are established by
legislation, domestic intelligence activities threaten to
undermine our democratic society and fundamentally alter its
nature.
What a strange echo, what an incredibly strange echo, we hear in
those words. The words I just read could have been written yesterday.
Three decades ago our predecessors in this Chamber understood that when
domestic spying goes too far, it threatens to kill just what it
promises to protect: an America secure in its liberty. That lesson was
crystal clear more than 30 years ago. Why is it so cloudy tonight? Why
is it so cloudy on the eve of an important vote?
And before we entertain the argument that ``everything has changed''
since those words were written, remember: The men who wrote them had
witnessed World War and Cold War. They had seen the Nazi and Soviet
threats and were living every day under the cloud of a nuclear
holocaust.
Mr. President, I ask this: Who will chair the commission
investigating the secrets of warrantless spying years from today? Will
it be a young Senator sitting in this body today? Will it be someone
not yet elected? What will that Senator say when he or she comes to our
actions, reads in the records of 2008 how we let outrage after outrage
after outrage slide with nothing more than a promise to stop the next
one? I imagine that Senator will ask of us: Why didn't they do
anything? Why didn't they fight back? Why didn't they stand up? Why
didn't they vote down retroactive immunity? What were they thinking?
What more do you need to know? How many instances of abuse do you have
to learn about? When do you stop? When do you say enough is enough? In
February of 2008, when no one could doubt any more what the
administration was doing, why did they sit on their hands? Why did they
sit on their hands? Why did they pass by as if nothing had ever
happened and grant retroactive immunity?
Since the time of the Church Commission the threats facing our Nation
have multiplied and grown in complexity, but the lesson has been
immutable: Warrantless spying threatens to undermine our democratic
society, unless legislation brings it under control. In other words,
the power to invade privacy must be used sparingly, guarded jealously,
and shared equally between the branches of Government.
Or the case can be made pragmatically, as my friend Harold Koh, dean
of Yale Law School, recently argued:
The engagement of the three branches tends to yield not
just more thoughtful law, but a more broadly supported public
policy.
Three decades ago, Congress embodied that solution in the Foreign
Intelligence Surveillance Act, or FISA. FISA confirmed the President's
power to conduct surveillance of international conversations involving
anyone in the United States, provided--provided--that the Federal FISA
Court issued a warrant ensuring that wiretapping was aimed at
safeguarding our security and nothing else.
The President's own Director of National Intelligence, Mike
McConnell, explained the rationale in an interview this summer. The
United States, he said:
. . . did not want to allow the intelligence community to
conduct electronic surveillance of Americans for foreign
intelligence unless you had a warrant, so that was required.
As originally written in 1978, and as amended many times since, FISA
has accomplished its mission. It has been a valuable tool for
conducting surveillance of terrorists and those who would harm our
beloved Nation. And every time Presidents have come to Congress openly
to ask for more leeway under FISA, Congress has worked with them.
Congress has negotiated it together. Congress and Presidents have
struck a balance that safeguards America while doing its utmost to
protect Americans' privacy.
This summer, Congress made a technical correction to FISA, enabling
the President to wiretap without a warrant conversations between two
foreign targets, even if those conversations are routed through
American corporate computers. For other reasons, I felt this summer's
legislation went too far, and I opposed it, but the point is Congress
once again proved its willingness to work with the President on foreign
intelligence surveillance.
Isn't that enough?
This past October and November, as we have seen, the Senate
Intelligence and Judiciary Committees worked with the President to
further refine FISA and ensure, in a true emergency, the FISA Court
would do nothing to slow down intelligence gathering.
Isn't that enough?
As for the FISA court? Between 1978 and 2004, according to the
Washington Post, the FISA Court approved 18,748 warrants and rejected
5. Let me repeat that. The FISA Court, according to the Washington
Post, approved 18,748 warrants and rejected 5. The FISA Court has sided
with the executive branch 99.9 percent of the time.
Isn't that enough?
Is anything lacking? Have we forgotten something? Isn't all this
enough to keep us safe?
We all know the answer we received. This complex, fine-tuned
machinery, crafted over three decades by 3 branches of Government, 4
Presidents, and 12 Congresses was ignored. It was a system primed to
bless nearly any eavesdropping a President could conceive, and spying
still happened illegally.
If the shock of that decision has yet to sink in, think of it this
way: President Bush ignored not just a Federal court but a secret
Federal court. Not just a secret Federal court but a secret Federal
court prepared to sign off on his actions 99.9 percent of the time. A
more compliant court has never been conceived. Still, that wasn't good
enough.
So I will ask the Senate candidly, and candidly it already knows the
answer: Is this about security or about power? Why are some fighting so
hard for retroactive immunity? The answer, I believe, is immunity means
secrecy, and secrecy means power.
It is no coincidence to me that the man who proclaimed ``If the
President does it, it is not illegal''--Richard Nixon--was the same man
who raised executive secrecy to an art form. The Senators of the Church
Committee expressed succinctly the deep flaw in the Nixonian executive:
``Abuse thrives on secrecy.'' And in the exhaustive catalogue of their
report, they proved it.
In this push for immunity, secrecy is at its center. We find proof in
immunity's original version: a proposal to protect not just telecoms
but everyone involved in the wiretapping program. In their original
proposal, that is what they wanted, to immunize themselves and
absolutely everyone involved in this program. Not just the companies
but everyone from the executive branch on down. They wanted to immunize
every single human being.
Think about it. It speaks to their fear and perhaps their guilt--
their guilt that they had broken the law and their fear in the years to
come they would be found liable or convicted. They knew better than
anyone else what they had done, and they must have had good reason to
be afraid. Thankfully, immunity for the President is not part of the
bill before us, and on previous occasions I have commended Senator
Rockefeller and Senator Bond and the committee members for not agreeing
to the administration's request for granting immunity for every single
person. But remember, they made the request. That is what they wanted.
While it is not in the bill, it ought to be instructive. If anybody
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wonders what this is all about, when you go back and remember that this
administration requested of this committee that every single human
being involved in the surveillance program be immunized and protected
by the act of Congress, that is instructive. That is enlightening as to
what the true intent of this administration has been when it comes to
this program.
As I said: Thankfully, immunity for the executive branch is not part
of the bill before us, but the original proposal tells us something
very important. This is, and always has been, a self-preservation bill.
Otherwise, why not have a trial and get it over with? If the proponents
of retroactive immunity are right, the corporations would win in a
walk. After all, in the official telling, the telecom industry was
ordered to help the President spy without a warrant and they
patriotically complied. We have even heard on this floor the comparison
between the telecom corporations to the men and women laying their
lives on the line in Iraq.
But ignore that. Ignore for a moment the fact that in America we obey
the laws, not the President's orders. Ignore that not even the
President has the right to secure a bully into breaking the law. Ignore
that the telecoms were not unanimous; one, Qwest, wanted to see the
legal basis for the order, never received it, and so refused to comply.
Ignore that a judge presiding over the case ruled:
AT&T cannot seriously contend that a reasonable entity in
its position could have believed that the alleged domestic
dragnet was legal.
Ignore all of that. If the order the telecoms received was legally
binding, then they have an easy case to prove. The corporations only
need to show a judge the authority and the assurances they were given
and they will be in and out of court in less than 5 minutes.
If the telecoms are as defensible as the President says, why doesn't
the President let them defend themselves? If the case is so easy to
make, why doesn't he let them make it? It can't be that he is afraid of
leaks. Our Federal court system has dealt for decades with the most
delicate national security matters, building up expertise and
protecting classified information behind closed doors--ex parte, in
camera. We can expect no less in these cases. No intelligence sources
need be compromised. No state secrets need to be exposed. After
litigation, at both the district court and circuit court level, no
state secrets have been exposed.
In fact, Federal District Court Judge Vaughn Walker, a Republican
appointee, I might add, has already ruled the issue can go to trial
without putting state secrets in jeopardy. He reasonably concluded that
the existence of a terrorist surveillance program is hardly a secret at
all, and I quote him.
The government has already disclosed the general contours
of the ``terrorist surveillance program,'' which requires the
assistance of a telecommunications provider.
As the state secrets privilege is invoked to stall these high-profile
cases, it is useful to consider that privilege's history. In fact, it
was tainted at its birth by a President of my own party, Harry Truman.
In 1952, President Truman successfully invoked the new privilege to
prevent public exposure of a report on a plane crash that killed three
Air Force contractors.
When the report was finally declassified some 50 years later, decades
after anyone in the Truman administration was within its reach, it
contained no secrets at all; only facts about repeated maintenance
failures that would have seriously embarrassed some important people.
And so the state secrets privilege began its career not to protect our
Nation but to protect the powerful.
In his opinion, Judge Walker argued that, even when it is reasonably
grounded:
the state secrets privilege still has its limits. While the
court recognizes and respects the executive's constitutional
duty to protect the Nation from threats, the court also takes
seriously its constitutional duty to adjudicate the disputes
that come before it. To defer to a blanket assertion of
secrecy here would be to abdicate that duty, particularly
because the very subject matter of this litigation has been
so publicly aired. The compromise between liberty and
security remains a difficult one. But dismissing this case at
the outset would sacrifice liberty for no apparent
enhancement of security.
And that ought to be the epitaph for the last 6 years--sacrificing
liberty for no apparent enhancement of security. Worse than selling our
soul, we are giving it away for free.
It is equally wrong to claim that failing to grant this retroactive
immunity will make the telecoms less likely to cooperate with
surveillance in the future. The truth is, that since the 1970s, the
Foreign Intelligence Surveillance Act has compelled telecommunications
companies to cooperate with surveillance, when it is warranted. What is
more, it immunizes them. It has done that for 25 years.
So cooperation in warranted wiretapping is not at stake today.
Collusion in warrantless wiretapping is. The warrant makes all the
difference in the world because it is precisely the court's blessing
that brings Presidential power under the rule of law.
In sum, we know that giving the telecoms their day in court, giving
the American people their day in court, would not jeopardize an ounce
of our security. And it could only expose one secret: The extent to
which the rule of law has been trampled upon. That is the choice at
stake this evening and tomorrow when we vote on this matter: Will the
secrets of the last years remain closed in the dark or will they be
open to the generations to come, to our successors in this Chamber, so
they can prepare themselves to defend against future outrages of power
and usurpations of law from future Presidents, of either party, as
certainly they will come? As certainly they will come.
Thirty years after the Church Committee, history repeated itself.
Even though I probably thought in those days, this will never happen
again. Well, here we are again. As certain as I am standing here this
evening, at some future time, there will be an executive, a President,
who will seek to compromise the very same principles. And just as we
reached back 30 years ago during this debate to a hallowed time when
another Senate, faced with similar challenges, reached entirely
different conclusions than we are about to make, some future generation
will reach back to ours and ask: What did they say? What did they do?
How did they feel about this? What actions did they take?
The idea that this body would grant retroactive immunity in the face
of these challenges and deny the courts an opportunity to determine
whether, at the mere request of a President, major companies, for years
on end, can sweep up, vacuum up--to use the Church Committee's
language--every telephone conversation, every fax, every e-mail of
millions and millions of Americans, is a precedent I don't think we
want as part of our heritage for coming generations.
And believe me, they will look back to it. If those who come after us
are to prevent it from occurring again, they need the full truth.
Constitutional lawyer and author Glenn Greenwald expressed the high
stakes this way:
The Bush administration will be gone in 11 months. But--in
the absence of some meaningful accountability--all of this
will remain . . . If . . . these theories remain undisturbed
and unchallenged, and . . . all of these crimes go
uninvestigated and unpunished, that will have a profound
impact on changing our national character, in further
transforming the type of country we are.
That is why we must not see these secrets go quietly into the good
night. I am here this evening because the truth is no one's private
property. It belongs to every one of us, and it demands to be heard.
``State secrets,'' ``patriotic duty'': Those, as weak as they are,
are the arguments the telecoms' advocates use when they are feeling
high-minded. When their thoughts turn baser, they make their arguments
as amateur economists.
Here is how Director of National Intelligence Mike McConnell put it.
If you play out the suits at the value they're claimed, it
would bankrupt these companies. So . . . we have to provide
liability protection to these private sector entities.
That is an incredible statement. It is amazing that a person in high
Government would suggest that no matter how warranted this
investigation may be, there is a higher calling, that we should not put
these companies in any kind of financial jeopardy, that we have to
provide liability protection to these private sector entities because
it might bankrupt them.
To begin with, it is a clear exaggeration. First and foremost, we are
talking about some of the most successful
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companies in the United States, not only today but ever. Some of these
companies have continued to earn record profits and sign up record
numbers of subscribers at the same time as this very public litigation,
totally undermining the argument, I might add, these lawsuits are doing
the telecoms severe reputational damage.
Remember, the discussion about these telecoms has now gone on for
months. And yet in the public debate about whether the courts ought to
be able to examine these issues, there are reports that these companies
have been accumulating record profits. Companies that size could not be
completely wiped out by anything but the most exorbitant and unlikely
judgment. To assume that the telecoms would lose and that the judges
would hand them down such back-breaking penalties is already to take
several leaps.
The point, after all, has never been to finally cripple our
telecommunications industry. That is not the point here at all. In
fact, some have said: Look, I will support you striking this immunity,
provided you put a cap on damages these companies would suffer if in
fact the plaintiffs prove to be correct. And I am more than happy to
entertain that. I do not believe it is necessary, but if that is the
argument, a damages cap would answer all of Mike McConnell's concerns,
without even having to bring up immunity. I am prepared to agree to any
kind of a cap you want--because the point to me is not the damages they
pay, but the damage they have done.
But to suggest somehow that there is a pricetag companies would have
to pay which is more valuable than protecting people's privacy is a
stunning, breathtaking comment from a high Government official, in my
view. It is extremely troubling that our Director of National
Intelligence even bothers to pronounce on ``liability protection for
private sector entities.'' How did that even begin to be relevant to
letting this case go forward? Since when do we throw entire lawsuits
out because the defendant stood to lose too much? In plain English,
here is what Admiral McConnell is arguing: Some corporations are too
rich to be sued. Even bringing money into the equation puts wealth
above justice, above due process. Rarely in public life in the years I
have served here have I ever heard an argument as venal as that on a
matter as serious as this one. It astounds me that some can speak in
the same breath about national security and the bottom line. Approve
immunity and Congress will state clearly: The richer you are, the more
successful you are, the more lawless you are entitled to be. A suit
against you is a danger to the Republic! And so, at the rock bottom of
its justifications, the telecoms' advocates are essentially arguing
that immunity can be bought.
The truth is exactly, of course, the opposite. The larger the
corporation, frankly, the greater the potential for abuse. Not that
success should make a company suspect at all; companies grow large, and
essential to our economy because they are excellent at what they do. I
simply mean that size and wealth open the realm of possibilities for
abuse far beyond the scope of the individual.
After all, if everything alleged is true, we are talking about one of
the most massive violations of privacy in American history. If
reasonable search and seizure means opening a drug dealer's apartment,
the telecoms' alleged actions would be the equivalent of strip-
searching everyone in the building, ransacking their bedrooms, prying
up all the floorboards. The scale of these cooperations opens
unprecedented possibilities for abuse, possibilities far beyond the
power of any one individual.
If the allegation against the telecoms is true, it constitutes one of
the most massive violations of privacy in American history. And it
would be inconceivable without the size and resources of a corporate
behemoth, the same size that makes Mike McConnell fear the
corporations' day in court. That is the massive scale we are talking
about, and that massive scale is precisely why no corporation must be
above the law.
On that scale, it is impossible to plead ignorance. As Judge Walker
ruled:
AT&T cannot seriously contend that a reasonable entity in
its position could have believed that the alleged domestic
dragnet was legal.
Again, from a Republican appointee to the Federal bench. But the
arguments of the President's allies sink even lower. Listen to the
words of a House Republican leader spoken on Fox News. Candidly, they
are shameful.
I believe that [the telecoms] deserve immunity from
lawsuits out there from typical trial lawyers trying to find
a way to get into the pockets of American companies.
Of course, some of the ``typical greedy trial lawyers'' bringing
these suits work for a nonprofit. And the telecoms that some want to
portray as pitiful little Davids actually employ hundreds of attorneys,
retain the best corporate law firms, and spend multimillion dollar
legal budgets.
But if the facts actually matter to immunity supporters, we would not
be here. For some, the prewritten narrative takes precedence far above
the mere facts; and here, it is the perennial narrative of the greedy
trial lawyers.
With that, some can rest content. They conclude that we were never
serious about the law, or about privacy, or about checks and balances;
it was about the money all along.
But we will not let them rest content. We are extremely serious.
There can no longer be any doubt: One by one the arguments of the
immunity supporters, of the telecoms' advocates, fail.
I wish to spend a few minutes and detail these claims and their
failures, if I may. The first argument from immunity supporters says:
The President has the authority to decide whether or not
telecoms should be granted immunity.
That is the first argument. The President has that implicit
authority. But the facts in this case belong in the courts. The
judiciary should be allowed to determine whether the President has
exceeded his powers by obtaining from the telecoms wholesale access to
the domestic communications of millions of ordinary Americans.
Whatever the arguments may be, let us assume for a second they are
going to make this argument. Well, you can make an argument. Where is
the place you make that argument? Here in the legislative body or in
the courts? I think the simple answer is, if you have been to law
school for a week, the courts.
We are a government of three parts, coequal: executive, legislative,
and judicial. The executive branch says: I have the right to do this.
The Congress can debate and certainly discuss it. But only in the
courts can we determine the constitutionality of that action.
Neither this body nor the other that comprise the legislative branch
are charged with the responsibility of determining constitutionality.
When Congress passes a law, the courts decide whether it is
constitutional. When the President acts, the courts decide whether it
is constitutional. The executive branch does not decide whether we have
acted constitutionally, and we do not decide whether the President has
acted constitutionally. That is what the courts are for. This is basic
101 stuff. This is basic stuff. You go to the courts to determine this
question. And yet if we pass retroactive immunity--gone.
That is a great precedent. That is what future Congresses will look
to, when deciding when some future President overreaches: What did the
previous Congresses do? And you will hear the argument in this Chamber
years hence: Well, back in 2008, when confronted with that question,
the Senate said that, frankly, the courts had no business with that, in
effect, sanctioning what had occurred.
How else can you read this but as a sanction? If a majority of
Senators here decides that retroactive immunity is warranted, what
other conclusion can history draw from that, except we agreed with the
President that he had the right to do what he did, and we will never
know the legal answer to the question. We will deprive the courts of
the opportunity to decide it.
We are overstepping our bounds incredibly by doing this, and hence
the reason for the first time in my more than a quarter century in this
body I am engaging in extended debate, because this is that important.
To allow a President, any President of any party, to mandate or
require a public or private entity to invade the privacy of Americans
to the extent that has occurred here, one of the most massive alleged
violations of privacy in
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history, and not challenge it and have the courts determine the
legality or illegality of it, is an incredible precedent of historic
proportions. It is not a small vote tomorrow. It is not a minor issue.
It is about as important and as basic and as fundamental as anything we
can ever do.
Remember that the administration's original immunity proposal
protected everyone. That is what they wanted. And executive immunity is
not in this bill only because Jay Rockefeller and Kit Bond and the
other members of the committee said No. But do not forget that is what
they wanted. The administration came to the committee, and said: We
want you to grant immunity to everyone--the executive branch, the
telecoms, Justice Department, anyone else involved.
The committee turned them down. But they asked for it. They asked for
it. And that has to be a part of this debate and discussion. It is not
irrelevant. It is not insignificant that the President of the United
States asked the Intelligence Committee of the Senate to grant them and
everyone else involved in this issue total immunity. What more do you
need to know about what the motives are? How much more do you need to
find out? The origin of immunity tells us a great deal about what is at
stake here. It is self-preservation.
I have my own opinions about warrantless surveillance, about what
went on. But my opinions should not bear the weight of law. I think
what these companies did was wrong. But I would be a fool to stand
before you this evening and say I have the right to make that
determination. But they should have not the right, either, to decide if
it was legal. And that is what we are doing, in effect, by granting
retroactive immunity.
The second argument is that only foreign communications are targeted.
Immunity supporters claim that only foreign communications were
targeted, not Americans' domestic calls. But the fact is that clear
firsthand evidence authenticated by these corporations in court
contradicts that claim. ``Splitters'' at AT&T's Internet hub in San
Francisco diverted into a secret room controlled by the NSA every e-
mail, every text message, every phone call, foreign or domestic,
carried over the massive fiber optic lines of 16 separate companies for
over 5 years.
Third, the Senate Intelligence Committee has preserved the role of
the judiciary so there is ample oversight. But the fact is, the role
would be empty. The Intelligence version of the bill before us would
require the cases to be dismissed at a word from the Attorney General.
The central legal questions raised by these cases would never be heard.
The cases would never be fully closed. We would never really truly know
what happened in these matters. So from a mere word of the Attorney
General, that is the end of it.
The fourth argument we have been hearing over the last number of
months: A lack of immunity would compromise future cooperation between
the U.S. Government and the telecom industry. But remember: Since the
1970s the Foreign Intelligence Surveillance Act has compelled telecoms
to cooperate with warranted surveillance, and it has immunized them
entirely. They don't have a choice, in effect. If you are compelled by
a warrant to turn over the evidence, you don't have the choice of
cooperating or not. The idea that the companies will say: We are just
not going to share that information with you--you don't have that
luxury. When a court order comes and says: Turn over the evidence, you
have to turn it over. But, of course, the companies say: We don't want
to because we will end up with a lot of lawsuits. To handle that very
legitimate issue raised initially by AT&T, which was part of drafting
FISA in 1978, we said: Don't worry about that. We will immunize you so
there won't be any lawsuits that can be brought against you for doing
what you are compelled to do by court order and a warrant.
So the argument that somehow we won't be cooperative with you is just
on its face factually wrong. You don't have the choice not to
cooperate. What we do grant to you with that warrant is the fact that
you cannot be sued, which is a legitimate request to make.
That is not, of course, what happened here. The decision was made to
turn over the evidence without a warrant, without a court order.
I pointed out before that according to the Washington Post, since
1978 there have been over 18,700 court orders requested of the FISA
Court, and only 5 have been rejected in 30 years; 18,700-plus cases
before the court, that secret, private Federal court, and in 99.9
percent of the cases, they have been approved. Only five have been
rejected. But when you are receiving a court order, when the warrant
arrives and you are complying with it, as you are required, you also
receive immunity from legal prosecution or from lawsuits. So the
argument somehow that these companies won't be as cooperative, if it
weren't so sad, would almost be amusing.
This was a pay deal, by the way. It wasn't just patriotic duty. There
was a cost involved. We were writing checks to the telecommunications
industry. For whatever reason, when the Government stopped paying the
checks to the telecom industry, these great patriotic institutions
decided to stop the surveillance. Were they under a court order, had
there been a warrant insisting upon their compliance, they wouldn't
have the luxury of deciding not to comply. Only under this fact
situation we are debating this evening would these corporations have
any ability to all of a sudden stop complying with the law or complying
with the request. So the irony of the argument is that the reverse is
actually true. If you don't have a warrant and a court order, it is
less likely you are apt to get that continual cooperation from these
very companies that can provide the information we need to keep us more
secure.
The fifth argument immunity supporters make is that telecoms can't
defend themselves because of the state secrets provision. I made this
case a while ago, but let me repeat it. The fact is that Federal
district court Judge Vaughn Walker has already ruled that the issue can
go to trial without putting state secrets in jeopardy. Judge Walker
pointed out that the existence of the warrantless surveillance program
is hardly a secret at all.
I will quote him again. He said:
The Government has [already] disclosed the general contours
of the ``terrorist surveillance program,'' which requires the
assistance of a telecommunications provider.
So the argument that they can't defend themselves without exposing
state secrets has already been debunked.
The sixth argument that is made by those who support immunity is that
defendants are already shielded by common law principles. This is an
interesting one. Immunity supporters claim that telecoms are protected
by common law principles, but the fact is that common law immunities do
not trump specific legal duties imposed by statute such as the specific
duties Congress has long imposed on telecoms to protect customer
privacy and records.
In the pending case against AT&T, the judge already has ruled
unequivocally that ``AT&T cannot seriously contend that a reasonable
entity in its position could have believed that the alleged domestic
dragnet was legal.'' Even so, the communications company defendants can
and should have the opportunity to present these defenses to the courts
and the courts--not the Congress preemptively--should decide whether
they are sufficient.
The seventh argument that is being made by the supporters of immunity
is that information leaks may compromise state secrets and national
security. I have heard this argument over and over and over again. The
fact is, our Federal court system, in decade after decade of dealing
with delicate national security matters, has built up the expertise it
takes to secure that information behind closed doors. If we are still
concerned about national security being threatened as a result of these
cases, we can simply get the principals a security clearance.
We can be increasingly confident that these cases will not expose
state secrets or intelligence sources, because after the extensive
litigation that has already taken place at both the district court and
circuit court level, no sensitive information has been leaked.
This is a red herring issue. It is one that they are going to fall
back on over and over again. But it is no secret about what has been
going on. It has been widely reported. The only thing we are talking
about is methods and means. Yet, over the decades, our Federal courts,
in very sensitive matters,
[[Page S872]]
have protected that information. So this is a phony argument and ought
not to carry the day.
The eighth argument from those who support immunity: A lack of
immunity will harm the telecom companies. This is not unlike Admiral
McConnell's argument about finances. There will be reputational damage
to the telecom industry. The fact is, there is no evidence that this
litigation has reduced or will reduce the defendant companies' bottom
lines or customer base. These companies can only be harmed if they have
done something wrong. If they have not, they have nothing to worry
about. But the suggestion somehow that we should not go forward because
your reputation may be damaged is an insulting argument. It is
offensive to suggest that we should harm the people's right to privacy
because to prevent some reputational damage--they should be embarrassed
to make that argument. After all, there is nothing to be damaged if you
have done nothing wrong. If you have done something wrong, then, of
course, there will be some damage. And why shouldn't there be, if you
have done wrong? The courts are the ones to properly determine that.
The ninth argument: The magnitude of liability will bankrupt the
telecoms. I have addressed this already, but I will briefly respond to
it as well.
As we have seen, huge corporations could only be wiped out by most
enormous penalties and also the most unlikely penalties that could be
imposed. It would take several leaps to assume that the telecoms would
lose and that they will be slapped with huge judgments. But on another
level, immunity supporters are staking their claim on a dangerous
principle, that a suit can be stopped solely on the basis of how much
the defendant stands to lose. If we accept that premise, we could
conceive of a corporation so wealthy, so integral to our economy, that
its riches place it outside of the law altogether. That is a deeply
flawed argument.
We see that none of these arguments for immunity stand. There is
absolutely no reason to halt the legal process and to bar the
courthouse door.
I think it is important at this moment to share with those who may be
following this discussion, how we got to this point. How did we find
out about all of this? I said earlier that we would not be here
debating this this evening had it not been for a whistleblower, had it
not been for reports in the media about what was going on, that a 5-
year violation of privacy rights would have now turned into a 7- or 8-
year violation, unabated, unstopped--every phone conversation, fax, e-
mail being literally swept up, from millions and millions of people.
But we got knowledge of this because of a gentleman by the name of
Mark Klein who was a former AT&T telecommunications technician who came
forward to provide evidence of the company's collaboration with the
NSA. Mark Klein is a remarkable individual, a person of knowledge and
ability when it comes to these matters. Let me read from Mark Klein's
testimony because I think it is important. This is all from him. These
are not my words. These are words from Mark Klein, a person who worked
at AT&T for more than 20 years as an employee and a technician who came
forward to provide this information. Let me read his comments, if I
may, and put them into this debate.
For about 5 years, the Bush administration's National
Security Agency, with the help of the country's largest
telecommunications companies, has been collecting your e-
mail, accumulating information on your Web browser, and
gathering details about your Internet activity, all without
warrants and in violation of the U.S. Constitution and
several Federal and State laws. Even after the program was
exposed by the New York Times in December of 2005, the
President and other government officials consistently
defended the NSA's activities, insisting that the NSA only
collects communications into or from the United States where
one party to the communication is someone they believe to be
a member of al Qaeda or an associated terrorist organization.
But these claims are not true. I know they are not true,
because I have firsthand knowledge of the clandestine
collaboration between one giant telecommunications company
and the NSA to facilitate the most comprehensive spying
program in history. I have seen the NSA's vacuum cleaner
surveillance infrastructure with my own eyes. It is a vast
government-sponsored, warrantless spying program.
For over 22 years, I worked as a technician for AT&T. While
working in San Francisco in 2002, I learned that a management
level technician, with AT&T's knowledge, had been cleared by
the NSA to work on a special but secret project, the
installation and maintenance of Internet equipment in a newly
constructed secure room in AT&T's central office in San
Francisco. Other than the NSA-cleared technician, no
employees were allowed in that room.
In October of 2003, I was transferred to that office and
was in particular assigned to oversee AT&T operations. As
part of my duties, I was required to connect circuits
carrying data to optical splitters which made a copy of the
light signal. But the splitters weakened the light signal
causing problems I had to troubleshoot. After examining
engineering documents given to the technicians which showed
the connections to the splitters, I discovered that there
they were hard wired to the secret room. In short, an exact
copy of all traffic that flowed through critical AT&T
cables--e-mails, documents, pictures, Web browsing, voiceover
Internet phone conversations--everything was being diverted
to equipment inside the secret room. In addition, the
documents revealed the technological gear used in their
secret project, including a highly sophisticated search
component capable of quickly sifting through huge amounts
of digital data, including text, voice, and images in
real-time, according to preprogrammed criteria. It is
important to understand that the Internet links which were
connected to the splitter contained not just foreign
communications, but vast amounts of domestic trafficking
all mixed together.
Furthermore, the splitter has no selective abilities. It is
just a dumb device which copies everything to the secret
room. And the links going through the splitter are AT&T's
physical connections to many other Internet providers; e.g.,
Sprint, Qwest, Global Crossing Cable and Wireless, and the
critical west coast exchange point known as Mae West. Since
these networks are interconnected, the government's
surveillance affects not only AT&T customers, but everyone
else--millions of Americans.
I repeat again, I am reading the testimony of Mark Klein who was the
whistleblower who revealed this 5-year-long warrantless surveillance
program. Mark Klein goes on:
I also discovered in my conversations with other
technicians that other secret rooms were established in
Seattle, San Jose, Los Angeles and San Diego. One of the
documents I obtained also mentioned Atlanta, and the clear
inference and the logic of this setup and the language of the
documents is that there are other such rooms across the
country to complete the coverage--possibly 15 to 20 more. So
when reports of the government's extensive wiretapping
program surfaced in December of 2005, after I had left AT&T,
I realized two things. First, that I had been a witness to a
massive spying effort that violated the rights of millions of
Americans; and second, that the government was not telling
the public the truth about the extent of their
unconstitutional invasion of privacy.
In the spring of 2006, I became a witness for the
Electronic Frontier Foundation's lawsuit against AT&T. The
New York Times on April 13 of 2006 reported that four
independent technical experts who examined the AT&T documents
all said that the documents showed that AT&T had an agreement
with the Federal Government to systematically gather
information flowing on the Internet.
That is the testimony of Mark Klein.
I think it is important as well to share with my colleagues the
testimony of Brian Ried, currently the Director of Engineering and
Technical Operations at Internet Systems Consortium, a nonprofit
organization devoted to supporting a nonproprietary Internet. This is a
person of extensive knowledge. I am going to read his testimony about
the technical arrangements. This is clearly above my pay grade to
understand all of this with this gray head of hair I have, but to those
who are listening or watching any of this, this will explain how this
actually worked. So I am going to read this as if I actually know what
I am talking about. So let me read exactly the words of Brian Ried, the
statement of telecommunications expert Brian Ried, an AT&T
whistleblower, about Mark Klein's revelations.
I am a telecommunications and data networking expert.
That is again Brian Ried speaking here who has been involved in the
development of several critical Internet technologies.
I was a professor of electrical engineering at Stanford
University and of computer sciences at Carnegie Melon
University West. I have carefully reviewed the AT&T
authenticated documents and declaration provided by Mark
Klein and the public redacted version of the expert
declaration of Jay Scott Marcus, both filed in the Hepting v.
AT&T litigation. Combining the information contained in those
declarations and documents with my extensive knowledge of the
international telecommunications infrastructure and the
technology regularly used for lawful surveillance pursuant to
warrants
[[Page S873]]
and court orders, I believe Mr. Klein's evidence is strongly
supportive of widespread, untargeted surveillance of ordinary
people, both AT&T customers and others.
The AT&T documents describe a technological setup of the
AT&T facility in San Francisco. This setup is particularly
well suited to wholesale dragnet surveillance of all
communications passing through the facility, whether
international or domestic. These documents describe how the
fiberoptic cables were cut and splitters installed at the cut
point. Fiberoptic splitters work just like ordinary TV
splitters. One cable feeds in and two cables feed out. Both
cables carry a copy of absolutely everything that is sent,
and if the second cable is connected to a monitoring station,
that station sees all traffic going over the cable.
Mr. Klein stated that the second cable was routed into a
room at the facility which access was restricted to AT&T
employees having clearances from the National Security
Agency. The documents indicate that similar facilities were
being installed in Seattle, San Jose, Los Angeles, and San
Diego. The documents also reference a somewhat similar
facility in Atlanta. This infrastructure is capable of
monitoring all traffic passing through the AT&T facility,
some of it not even from AT&T customers, whether voice or
data or fax, international, or domestic. The most likely use
of this infrastructure is wholesale, untargeted surveillance
of ordinary Americans at the behest of the NSA. NSA
involvement undermines arguments that the facility is
intended for use by AT&T in protecting its own network
operations.
This infrastructure is not limited to, nor would it be
especially efficient for targeted surveillance or even an
untargeted surveillance aimed at communications where one of
the ends is located outside of the United States. It is also
not reasonably aimed at supporting AT&T operations and
security procedures. There are 3 main reasons.
The technological infrastructure is far more powerful and
expansive than that needed to do targeted surveillance or
surveillance aimed at only international or one end
foreign communications. For example, it includes a Narus
6400, a computer that can simultaneously analyze huge
amounts of information based on rules provided by the
machine operator, analyze the content of messages and
other information--not just headers or routing
information--conduct the analysis in real-time rather than
after a delay, correlate information from multiple
sources, multiple formats, over many protocols and through
different periods of time in that analysis.
The documents describe a secret private backbone network
separate from the public network where normal AT&T customer
traffic is carried and transmitted. A separate backbone
network would not be required for transmission of the smaller
amounts of data captured by a targeted surveillance. You
don't need that magnitude of transport capacity if you are
doing targeted surveillance.
The San Francisco facility is not located near an entry-
exit point for international communications that happened to
be transmitted through the United States either through under
sea cable or via satellite. As a result, it would not be a
sensible place to locate aimed at simply monitoring traffic
to or from foreign countries.
I apologize for reading these technical documents, but I think they
shed some light. We are talking about very knowledgeable, expert people
describing technically what was done, the magnitude of it, the capacity
of it, the effort that was made, obviously, to see to it, as Mr. Klein
calls it, a dumb machine that would not discriminate between
information that might only be used to protect us from al-Qaida, and
wholesale invasion of privacy.
But putting aside all that--had they sought a warrant and a court
order, as they should have done, then arguably AT&T and others involved
would be protected today and be immunized against lawsuits, if it had
been done under the FISA legislation. The fact that the administration
decided to totally disregard 30 years of legislation, of working courts
that have provided, in over 18,700 examples, approval of such requests,
rejecting only 5, shows an arrogance that shouldn't be ignored.
So again, tomorrow when the votes occur on cloture and the votes
occur on these amendments, we will may sanctioning this activity--
setting the unprecedented precedent of a Congress actually providing
immunity from the courts even examining whether warrantless spying is
legal and right. Hence, in future years, this will be cited, I am
confident, by those who want to undermine the FISA Courts, deprive the
courts the opportunity to make sure there is a justification, an
argument, a legal basis for granting these warrants. The argument will
be made: You don't need the courts, because back in 2008,
telecommunications companies, at the mere request of a President, were
able to go forward and spend more than 5 years invading the privacy of
millions of Americans, and when the Senate had an opportunity to
sanction that activity, it decided to do so, rather than allow the
court to determine whether that action was legal.
The word of the Senate should be a valued--I can hear the argument
years hence. They listened to the debates, they listened to that fellow
Dodd get up and talk for hours about the issue of immunity and why it
shouldn't be granted retroactively and they turned him down. That will
be the precedent cited when faced with similar allegations involving
future administrations that may decide that financial information,
medical information, highly private, personal, family information may
be the subject of unwarranted surveillance to allegedly protect our
country and keeping us safe. If that is the case, I am confident this
debate and these votes will be cited as a justification for allowing
that kind of activity to go forward without receiving the legal
authority to do so. We will have denied the courts the opportunity to
decide whether this activity that was the most serious invasion of
privacy ever maybe in our country was legal or illegal. By granting
retroactive immunity, we will have made a decision to deprive the
courts of that responsibility.
Ultimately, all I am asking for is a fair fight. To reject immunity
would mean to grab hold of the closest thread of lawlessness we have at
hand and to pull until the whole garment unravels. But ensuring a day
in court is not the same as ensuring a verdict. When that day comes, I
have absolutely no investment in the verdict, either way. It may be the
Federal Government broke the law when they asked the telecoms to spy
but that the telecoms' response was an innocent one. It may be the
Government was within the law and that the telecoms broke it. Maybe
they both broke the law. Maybe neither did.
But just as it would be absurd to declare the telecoms clearly
guilty, it is equally absurd, I would argue, to close the case in
Congress without a decision. That is what immunity does: It closes the
case without a decision. Throughout this debate, the telecoms'
advocates have needed to show not just that they are right but that
they are so right and that we are so far beyond the pale that we can
shut down the argument right here, today. That is a burden they have
clearly not met, and they cannot expect to meet it when a huge majority
of Senators who will make the decision have not even seen the secret
documents that are supposed to prove the case for retroactive immunity.
My trust is in the courts, in the cases argued openly, in the judges
who preside over them, and in the juries of American citizens who
decide them. They should be our pride, not our embarrassment, and they
deserve to do their jobs.
As complex, as diverse, as relentless as the assault on the rule of
law has been, our answer to it is a simple one. Far more than any
President's lawlessness, the American way of justice remains deeply
rooted in our character; that no President can disturb or should be
allowed to do so.
So I am full of hope. Even on this dark evening, I have faith that we
can unite security and justice because we have already done it for 30
years. My father, Senator Tom Dodd, was the number two American
prosecutor at the famous Nuremburg trials, which may have something to
do with the passion I feel about this issue--the rule of law.
I have never forgotten the example he and Justice Robert Jackson and
others set at Nuremberg more than 60 years ago.
As Justice Robert Jackson said in the opening statement at
Nuremberg--in fact, I have written it down, but I memorized this years
and years ago. Robert Jackson's opening statement, speaking to the
court, talking about the Soviet Union, the British, the French, and
America, he made the following argument:
That four great nations, flushed with victory and stung
with injury, stay the hand of vengeance and voluntarily
submitting their captive enemies to the judgment of the law
is one of the most significant tributes that power ever paid
to reason.
That is a great sentence when you think of it. Here we are staying
the hands of vengeance and power, paying tribute to reason. At
Nuremberg, there were 21 initial defendants. Madam President, 55
million people had died, 6
[[Page S874]]
million Jews were incinerated, and 5 million others had the same fate
befall them because of their politics, religion, or sexual orientation.
These were some of the greatest crimes in recorded history. Winston
Churchill wanted to summarily execute every one of them. The Soviets
wanted a show trial for a week and then to kill them all. Robert
Jackson, Harry Truman, Henry Stinton, the Secretary of War in
Roosevelt's Cabinet--this handful of people said: The United States is
different. We are going to do something no one else has ever done
before. We are going to give these defendants, as great violators of
human rights as they are, a day in court. It was unprecedented.
Here they are, the war still raging in the Pacific, gathering in
Nuremberg, Germany, which had 30,000 people buried in the rubble of the
city. Prosecutors, judges, and lawyers for these individuals gathered
together and gave them a day in court that went on for a year.
And the United States gained the moral high ground. Never before in
history had the victors given those guilty of the worse atrocities
imaginable a day in court.
I cannot believe this country, at this hour, would walk away from the
rule of law when we stood for it so proudly in the 20th century. In
fact, that experience at Nuremberg gave birth to a half-century of
moral authority. It paved the way for the Marshall Plan and for the
international structures that gave the world relative peace for more
than a half century. For so many years, both Republican and Democratic
administrations stood up for them and defended them. The international
criminal courts and others--none of these institutions would have
existed were it not for the United States leading.
Today, when we find ourselves at this moment in this body--of all
places--walking away from the rule of law, I think it is a dark hour.
Again, my hope is that by tomorrow reason will prevail here, and we
will arrive at a different decision and reject this idea that
retroactive immunity is warranted.
What is the tribute that power owes to reason? That when America goes
to war, it doesn't fight for land or for treasure or for dominance but
for a transcendent idea--the idea that laws should rule and not men;
the idea that the Constitution does not get suspended for vengeance;
the idea that this great Nation should never tailor its eternal
principles to the conflict of the moment because, if we did, we would
be walking in the footsteps of the enemies we despised.
The tribute that power owes to reason: More than ever before, that
tribute is due today. If we cannot find the strength to pay it, we will
have to answer for it.
There is a famous military recruiting poster that comes to mind. A
man is sitting in an easy chair with his son and daughter on his lap,
in some future after the war has ended. His daughter asks him: Daddy,
what did you do in the war?
His face is shocked and shamed, because he knows he did nothing.
My daughters, Grace and Christina, are 3 and 6 years old. They are
growing up in a time of two great conflicts: one between our Nation and
enemies, and another between what is best and worst in our American
soul. Someday soon I know I am going to hear the question: What did you
do?
I want more than anything else to give the right answer to that
question. That question is coming from every single one of us in this
body. Every single one of us will be judged by a jury from whom there
is no hiding: our sons and daughters and grandchildren. Someday soon
they will read in their textbooks the story of a great nation, one that
threw down tyrants and oppressors for two centuries; one that rid the
world of Naziism and Soviet communism; one that proved that great
strength can serve great virtue, that right can truly make might. Then
they will read how, in the early years of the 21st century, that Nation
lost its way.
We don't have the power to strike that chapter. We cannot go back. We
cannot undestroy the CIA's interrogation tapes. We cannot unpass the
Military Commissions Act. We cannot unspeak Alberto Gonzales'
disgraceful testimony. We cannot untorture innocent people. And,
perhaps, sadly, shamefully, we cannot stop retroactive immunity. We
cannot undo all that has been done for the last 6 years for the cause
of lawlessness and fear. We cannot blot out that chapter. But we can
begin the next one, even today.
Let the first words read: Finally, in February 2008, the Senate said:
Enough is enough.
I implore my colleagues to write it with me. I implore my colleagues
to vote against retroactive immunity. I implore them to reject it, and
if we fail to do that, to vote against cloture.
I have shared my thoughts and views at some length now. But there are
others who have spoken eloquently on this subject. I think their words
deserve to be heard because they state far more eloquently than I could
the importance of all of this and why this is such a compelling case
and deserving of our attention. Let me share a few of these words from
the New York Times:
Even by the dismal standards of what passes for a national
debate on intelligence and civil liberties, last week was a
really bad week.
The Senate debated a bill that would make needed updates to
the Foreign Intelligence Surveillance Act--while needlessly
expanding the president's ability to spy on Americans without
a warrant and covering up the unlawful spying that President
Bush ordered after 9/11.
The Democrat who heads the Senate Intelligence Committee,
John Rockefeller of West Virginia, led the way in killing
amendments that would have strengthened requirements for
warrants and raised the possibility of at least some
accountability for past wrongdoing. Republicans declaimed
about protecting America from terrorists--as if anyone was
arguing the opposite--and had little to say about protecting
Americans' rights.
We saw a ray of hope when the head of the Central
Intelligence Agency conceded--finally--that waterboarding was
probably illegal. But his boss, the 'director of national
intelligence, insisted it was legal when done to real bad
guys. And Vice President Dick Cheney--surprise!--made it
clear that President Bush would authorize waterboarding
whenever he wanted.
The Catch-22 metaphor is seriously overused, but consider
this: Attorney General Michael Mukasey told Congress there
would be no criminal investigation into waterboarding. He
said the Justice Department decided waterboarding was legal
(remember the torture memo?) and told the C.I.A. that.
So, according to Mukaseyan logic, the Justice Department
cannot investigate those who may have committed torture,
because the Justice Department said it was O.K. and Justice
cannot be expected to investigate itself.
As it was with torture, so it was with wiretaps.
After the 2001 terrorist attacks, the President decided to
ignore the Foreign Intelligence Surveillance Act, or FISA,
and authorized wiretaps without a warrant on electronic
communications between people in the United States and people
abroad. Administration lawyers ginned up a legal
justification and then asked communications companies for
vast amounts of data.
According to Mr. Rockefeller, the companies were ``sent
letters, all of which stated that the relevant activities had
been authorized by the President'' and that the Attorney
General--then John Ashcroft--decided the activity was lawful.
The legal justification remains secret, but we suspect it was
based on the finely developed theory that the government
cannot be sued for doing so if they were obeying a warrant--
or a certification from the Attorney General that a warrant
was not needed--and all federal statutes were being obeyed.
When Mr. Bush started his spying program, FISA allowed
warrantless eavesdropping for up to a year if the president
certified that it was directed at a foreign power, or the
agent of a foreign power, and there was no real chance that
communications involving United States citizens or residents
would be caught up. As we now know, the surveillance included
Americans and there was no ``foreign power'' involved.
The law then, and now, also requires the attorney general
to certify ``in writing under oath'' that the surveillance is
legal under FISA, not some fanciful theory of executive
power. He is required to inform Congress 30 days in advance,
and then periodically report to the House and Senate
intelligence panels.
Congress was certainly not informed, and if Mr. Ashcroft or
later Alberto Gonzales certified anything under oath, it's a
mystery to whom and when. The eavesdropping went on for four
years and would probably still be going on if The Times had
not revealed it.
So what were the telecommunications companies told? Since
the administration is not going to investigate this either,
civil actions are the only alternative.
The telecoms, which are facing about 40 pending lawsuits,
believe they are protected by a separate law that says
companies that give communications data to the government
cannot be sued for doing so if they were obeying a
warrant--or a certification from the attorney general that
a warrant was not needed--and all federal statutes were
being obeyed.
To defend themselves, the companies must be able to show
they cooperated and produce that certification. But the White
House does
[[Page S875]]
not want the public to see the documents, since it seems
clear that the legal requirements were not met. It is
invoking the state secrets privilege--saying that as a matter
of national security, it will not confirm that any company
cooperated with the wiretapping or permit the documents to be
disclosed in court.
So Mr. Rockefeller and other senators want to give the
companies immunity even if the administration never admits
they were involved. This is short-circuiting the legal
system. If it is approved, we will then have to hope that the
next president will be willing to reveal the truth.
Mr. Rockefeller argues that companies might balk at future
warrantless spying programs. Imagine that!
This whole nightmare was started by Mr. Bush's decision to
spy without warrants--not because they are hard to get, but
because he decided he was above the law. Discouraging that
would be a service to the nation.
This debate is not about whether the United States is going
to spy on Al Qaeda, it is about whether it is going to
destroy its democratic principles in doing so. Senators who
care about that should vote against immunity.
Madam President, if I can, I will read from the USA Today, which also
had a good editorial on this subject matter, dated October 22, 2007. It
is entitled, ``Our View On Your Phone Records: Immunity Demand For
Telecoms Raises Questions.''
As history shows, mass snooping can sweep up innocent
citizens.
Anyone who has ever watched TV's Law & Order: SVU knows how
easy it is for police to get the bad guys' LUDs--``local
usage details,'' better known as telephone calling records.
They only need to get a prosecutor to sign a subpoena.
Eavesdropping on calls or reading e-mails is a bit tougher.
A warrant must come from a judge, and stronger evidence is
needed. Even so, it is an efficient process that serves law
enforcement's needs while guarding against arbitrary
intrusions into the privacy of innocent people.
But whether those protections still exist in national
security cases is very much in doubt.
Since Sept. 11, 2001, the Bush administration has
repeatedly bypassed the special court set up to preserve
balance. Now, with Congress threatening to restore some level
of protection, the administration is insisting on legal
immunity for telecommunications companies that might have
turned over records improperly. Last week, a key Senate
committee agreed.
The request alone is enough to raise suspicion,
particularly given the nation's history.
In the 1960s and '70s when law enforcement and spy agencies
launched mass snooping against U.S. citizens, some of the
data ended up being used for nefarious purposes, such as IRS
tax probes, that had nothing to do with protecting the
nation.
That is the danger when an administration can tap into
phone records without court oversight, and it is what's at
issue now.
The administration has repeatedly bypassed the special
national security court, arguing that the urgency of the war
on terrorism justified its actions.
In one particularly troubling intrusion, the National
Security Agency (NSA), a Pentagon-run spy agency, built a
database--with cooperation from some telecom companies--that
includes America's domestic calls. The extent of the program
remains hidden, one reason many in Congress are reluctant to
grab the company's immunity.
According to the account of one former CEO, the NSA foray
has already led to abuse. When Qwest, one of the nation's
largest telecom companies, refused to go along with the NSA
program--because Qwest lawyers considered it illegal--the NSA
allegedly retaliated by denying Qwest other lucrative
government contracts. Further, the requests to participate,
according to former Qwest chief executive Joseph Nacchio,
came six months before the 9/11 attacks. Nacchio's
allegations are in court findings unsealed this month that
are part of his battle over a conviction of insider trading.
If the Senate measure becomes law, telecom companies will
get immunity from nearly 40 lawsuits without the public
knowing what the companies or the government did. Never mind
that six of the lawsuits were brought by state officials--
from New Jersey to Missouri--concerned about possible
violation of citizens' privacy.
There might be some valid reason to grant immunity. The
Senate committee agreed after seeing details. But even if
there is, the companies should be compelled to tell the
public the precise nature and reach of the program, and the
program should be put firmly under court review.
The Senate measure also would place minimal court
supervision over future surveillance ventures. A far more
sensible House Democratic measure would give the Foreign
Intelligence Surveillance Court a greater role.
That system works well, even in emergencies. In the
harrowing minutes after the Pentagon was attacked on 9/11,
the court's chief judge, stuck in his car, granted five
surveillance warrants from his cell phone.
Speed, obviously, is important. Nevertheless, it can be
achieved without discarding protections that long ago proved
their worth.
The Dallas Morning News had a good article as well on Friday, October
19, of last year, entitled ``Beck and Call: Verizon too eager to
surrender phone records'':
Verizon's willingness to turn over customer telephone
records when the government asks--even though investigators
often make such requests without a court order--is a
troubling practice.
The company may be motivated by a desire to help--or to
avoid government confrontation. But Verizon's approach,
disclosed in a letter to Congress this week, is the wrong way
to go about this.
The burden of proof rests with the federal government to
prove its need for the records. Except in rare instances,
investigators must take their records requests to a judge who
then can determine whether to issue a warrant. The
Constitution intends just that, in language that fairly
balances privacy fears and law enforcement.
Yet the Bush administration insists on continuing to push
the post-9/11 civil liberties vs. security debate in the
wrong direction. Because telecom companies that have complied
with its requests now face huge lawsuits from citizens-rights
groups, the administration wants a law to grant immune
businesses sued for disclosing information without court
authorization.
Congress is right to look at the immunity proposal with a
skeptical eye, especially since the administration has been
reluctant to explain details of its controversial
surveillance program to lawmakers. The law would further
erode the privacy firewall and remove another layer of checks
and balances.
The phone companies, meanwhile, have refused to tell
relevant congressional committees whether they participated
in the National Security Agency's domestic eavesdropping
program. Their silence is based on concerns that they might
illegally divulge classified information if they talk to
Congress in too much detail.
Yet Congress and the courts have legitimate oversight roles
in issues of privacy and national security. Due process is
necessary to promote transparency and accountability in a
democracy. These are foundational principles, even in the
more dangerous post-9/11 world.
There is a further piece I think is worthy of reading, written in
December of 2005 by a former majority leader of this great body, Tom
Daschle. It's called ``Power We Didn't Grab.'' Tom Daschle was deeply
involved, I should point out, in the negotiations dealing with many of
these matters, particularly in the wake of the resolution that was
drafted granting the President the authority to go after al-Qaida in
Afghanistan. Alberto Gonzales later argued that with the adoption of
that resolution, Congress was granting the President authority to
conduct the warrantless surveillance that is the subject of our
discussion this evening.
That resolution was the subject of some negotiation over several days
before it was presented for a final vote in this body. So it is worthy
of consideration that Tom Daschle would write a piece in the Washington
Post when Alberto Gonzales made the argument that the President's
authority to require the phone companies to comply with his request
without a court order was, in fact, never the subject of those
negotiations.
I will read Tom Daschle's words on December 23, 2005:
In the face of mounting questions about news stories saying
that President Bush approved a program to wiretap American
citizens without getting warrants, the White House argues
that Congress granted it authority for such surveillance in
the 2001 legislation authorizing the use of force against al
Qaeda. On Tuesday, Vice President Cheney said the president
``was granted authority by the Congress to use all means
necessary to take on the terrorists, and that's what we've
done.''
As Senate majority leader at the time, I helped negotiate
that law with the White House counsel's office over two
harried days. I can state categorically that the subject of
warrantless wiretaps of American citizens never came up. I
did not and never would have supported giving authority to
the president for such wiretaps. I am also confident that the
98 senators who voted in favor of authorization of force
against al Qaeda did not believe that they were also voting
for warrantless domestic surveillance.
On the evening of Sept. 12, 2001, the White House proposed
that Congress authorize the use of military force to ``deter
and pre-empt any future acts of terrorism or aggression
against the United States.'' Believing the scope of this
language was too broad and ill defined, Congress chose
instead, on Sept. 14, to authorize ``all necessary and
appropriate force against those nations, organizations or
persons [the president] determines planned, authorized,
committed, or aided'' the attacks of Sept. 11. With this
language, Congress denied the president the more expansive
authority he sought and insisted that his authority be used
specifically against Osama bin Laden and al Qaeda.
[[Page S876]]
Just before the Senate acted on this compromise resolution,
the White House sought one last change. Literally minutes
before the Senate cast its vote, the administration sought to
add the words ``in the United States and'' after
``appropriate force'' in the agreed-upon text. This last-
minute change would have given the president broad authority
to exercise expansive powers not just overseas--where we all
understand he wanted authority to act--but right here in the
United States, potentially against American citizens. I could
see no justification for Congress to accede to this
extraordinary request for additional authority. I refused.
The shock and rage we all felt in the hours after the
attack was still fresh. America was reeling for the first
attack on our soil since Pearl Harbor. We suspected thousands
had been killed, and many who worked in the World Trade
Center and the Pentagon were not yet accounted for. Even so,
a strong bipartisan majority could not agree to the
administration's request for an unprecedented grant of
authority.
The Bush administration now argues those powers were
inherently contained in the resolution adopted by Congress--
but at the time, the administration clearly felt they weren't
or it wouldn't have tried to insert the additional language.
All Americans agreed that keeping our nation safe from
terrorists demands aggressive and innovative tactics. This
unity was reflected in the near-unanimous support for the
original resolution and the Patriot Act in those harrowing
days after Sept. 11. But there are right and wrong ways to
defeat terrorists, and that is a distinction this
administration has never seemed to accept. Instead of
employing tactics that preserve Americans' freedoms and
inspire the faith and confidence of the American people, the
White House seems to have chosen methods that can only breed
fear and suspicion.
If the stories in the media over the past week are
accurate, the president has exercised authority that I do not
believe is granted to him in the Constitution, and that I
know is not granted to him in the law I helped negotiate with
his counsel and that Congress approved in the days after
Sept. 11. For that reason, the president should explain the
specific legal justification for his authorization of these
actions, Congress should fully investigate these actions and
the president's justification for them, and the
administration should cooperate fully with that
investigation.
In the meantime, if the president believes the current
legal architecture of our country is sufficient for the fight
against terrorism, he should propose changes to our laws in
the light of day.
That is how a great democracy operates. And that is how
this great democracy will defeat terrorism.
Those were eloquent words from our former majority leader who was, as
I said, deeply involved in the negotiations crafting the resolution
that was adopted almost unanimously, allowing us to attack al-Qaida, to
defeat them in Afghanistan. Regrettably, Osama bin Laden and too many
of his operatives are still on the loose. But that language gave the
President the authority to act against them. He specifically wanted
more authority at home. The majority leader and those who worked with
him rejected that argument and that resolution adopted in 2001, 48
hours after the attack, specifically excluded the kind of activity that
Alberto Gonzales and Vice President Cheney claimed was granted in that
resolution.
It was worthy to note the language of Senator Daschle during that
debate.
I am going to read one more piece, if I may, again going back to
October. It is ``Immunity for Telecoms May Set Bad Precedent, Legal
Scholars Say. Retroactive problems could create problems in the
future.'' This is by Dan Eggen. This was written in October of 2007.
I made the argument earlier that I was concerned about the precedent-
setting nature of what we are doing. This evening I have been reaching
back 30 years to language used by our predecessors in this Chamber,
Republicans and Democrats, who were part of the Church Commission that
crafted the FISA legislation and the language they used, which easily
could have been written yesterday and describing the debate we are
having these days. We are calling upon them to guide us as we make our
decisions about how to proceed in this day's work with the different
threats we face, but the threats our predecessors faced were not small
threats--the Soviet Union, a nuclear holocaust, significant problems of
surveillance. They had the courage and the wisdom to step back and to
create a structure that allowed us to maintain that balance between
security and liberty.
So it is important because I am concerned that at some future date
that the votes tomorrow may give a strong precedent to those who have
never liked the idea of Federal courts granting warrants to conduct
surveillance but prefer this be done at the mere request of an American
President.
I made the case that when the Framers fashioned this Republic of
ours, had efficiency been their goal, they never would have established
a written system that had so many inefficiencies in it. In fact,
requiring the checks and balances of an executive, judicial, and
legislative branch with all of the requirements that we insist upon
make this system terribly inefficient in many ways. But the Founders of
this Republic were not only concerned about what we did but how we did
things. It is terribly important to be mindful of that in these
debates. Clearly, we need to gather information, and we need to be able
to do it in an expeditious fashion. But we also need to make sure that
how we do that is not going to violate more than 220 years of history,
of guaranteeing the rights and liberties of individual citizens.
Thirty years ago, a previous Senate found a way to do that with the
establishment of the secret Federal courts. These courts are
established by the Chief Justice of the United States, who appoints
sitting Federal judges anonymously to serve on these courts. None of us
ever get to know who they are. But as I pointed out earlier, even on 9/
11, a cell phone one of these secret FISA judges was able to respond
instantaneously to the request being made to conduct surveillance
necessary in the minutes after 9/11.
So it is important not only what we do about today's problem but the
message we send, the precedent we set for future Congresses when
confronted in their day, as they will be, with challenges regarding the
balance between security and liberty.
So this article, written by Dan Eggen, I think has value, talking
about how retroactive protection could create problems in the future.
When previous Republican administrations were accused of
illegality in the FBI and CIA spying abuses of the 1970s or
the Iran Contra affair of the 1980s, Democrats in Congress
launched investigations or pushed for legislative reforms.
But last week, faced with admissions by several
telecommunication companies that they assisted the Bush
administration in warrantless spying on Americans, leaders of
the Senate Intelligence Committee took a much different tack,
opposing legislation that would grant those companies
retroactive immunity from prosecution or lawsuits.
The proposal marks the second time in recent years that
Congress has moved toward providing legal immunity for past
actions that may have been illegal. The Military Commissions
Act, passed by the GOP-led Congress in September of 2006,
provided retroactive immunity for CIA interrogators who could
have been accused of war crimes for mistreating detainees.
Legal experts say the granting of such retroactive immunity
by Congress is unusual, particularly in a case involving
private companies. Congress, on only a few occasions, has
given some form of immunity to law enforcement officers,
intelligence officials, or others within the government, or
to some of its contractors, experts said. In 2005, Congress
also approved a law granting firearms manufacturers immunity
from lawsuits by victims of gun violence.
``It's particularly unusual in the case of the telecoms,
because you don't really know what you are immunizing,'' said
Louis Fisher, a specialist in constitutional law with the Law
Library of the Library of Congress. ``You don't know what you
are cleaning up.''
As part of a surveillance package approved Thursday by the
Senate Intelligence Committee, some telecommunications
companies would be granted immunity from about 40 pending
lawsuits that allege they violated Americans' privacy and
constitutional rights by aiding a warrantless wireless
surveillance program instituted after the September 11, 2001,
attacks.
I might point out here--and I will digress for a second--that we
heard earlier testimony that this program may have actually started
prior to the attacks of 9/11. There has been testimony submitted in
courts by one of the telecoms, Qwest's CEO, that in fact a request was
made of them to actually provide warrantless surveillance in January of
2001, when the administration took office, long before the attacks of
9/11. So it seems to me that alone ought to be the subject of some
inquiry.
We have all accepted the notion that immediately after 9/11, whether
we liked it or not, it was understandable how in the emotions of the
moment, that companies, at the request of an administration, even here
an administration requesting warrantless surveillance, might have
acted. Not that we
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would agree or like it but most would understand it.
My objection, as I said earlier, is not that it went on but that it
went on for the next 5 years and would still be ongoing were it not for
the whistleblower and the reports in the media. But what is troubling
to me is we are assuming this all began after 9/11. There may now be
some evidence it began before 9/11, which would debunk a lot of
arguments given on why we should grant retroactive immunity. I merely
point this out because we read earlier in testimony here that suggested
this might have been done earlier.
At any rate, I will continue from Mr. Eggen's article talking about
the provision we are talking about here.
The provision is a key concession to the administration and
the companies, which lobbied heavily for it.
Referring to the retroactive immunity.
Supporters argue the legislation is needed to avoid unfair
punishment of private firms that took part in good-faith
efforts to assist the government.
In arguing in favor of such protections earlier this month,
President Bush said any legislation ``must grant liability
protection to companies who are facing multibillion dollar
lawsuits only because they are believed to have assisted in
the efforts to defend our Nation following the 9/11
attacks.''
The head of the intelligence panel, Sen. John D.
Rockefeller, made a similar argument after the bill was
approved last week. ``The onus is on the administration, not
the companies, to ensure that the request is on strong legal
footing,'' he said.
Jeffrey H. Smith, a CIA general counsel during the Clinton
administration who now represents private companies in the
national security area, said the risk of litigation poses
an unfair threat to government officials or others who
have good reason to believe they are acting legally. He
noted that many intelligence officers now feel obliged to
carry liability insurance.
``It seems to me that it's manifestly unfair for the
officers that conducted that program and the telecoms to now
face prosecution or civil liability for carrying out what was
on its face a totally lawful request on the part of the
government,'' Smith said. ``It's not the same as Abu Ghraib
or a CIA officer who beats someone during an interrogation.''
But civil liberties groups and many academics argue that
Congress is allowing the government to cover up possible
wrongdoing and is inappropriately interfering in disputes the
courts should decide. The American Civil Liberties Union last
campaigned against the proposed Senate legislation, saying in
a news release Friday that ``the administration is trying to
cover its tracks.''
Sen. Russell Feingold said in a statement last week that
classified documents provided by the White House ``further
demonstrate that the program was illegal and that there is no
basis for granting retroactive immunity to those who
allegedly cooperated.'' His office declined to elaborate on
the records, which were reviewed by a Feingold staffer.
Retired Rear Adm. John Hutson, dean and president of the
Franklin Pierce Law Center in Concord, N.H., said he is
concerned about the precedent a new immunity provision might
set.
The article quotes him.
``The unfortunate reality is that once you've done it, once
you immunize interrogators or phone companies, then it's easy
to do it again in another context. It seems to me that as a
general rule retroactive immunity is not a good thing . . .
It's essentially letting Congress handle something that
should be handled by the Judiciary.''
These are, I think, very good articles that shed light on some of the
important issues we need to be looking at.
Let me, if I can, go back and talk about the Church Commission. I
think it is important because we are relying so heavily on the work
they have done and the establishment in the immediate aftermath of the
Church Commission of the FISA Courts. I have quoted from some of them
earlier this evening, but I think it is worthwhile to go back and
listen to their words. Again, I want you to know these words were
written 30 years ago, but I think people can appreciate how timely the
language is when you consider the debate we are having. It is hard not
to wonder how these words weren't prepared less than 24 hours ago, in
preparation for this debate. I think their warnings and admonitions
have a timeliness to them that are worthy of including in this
discussion at this moment. So let me quote from the Church report:
Americans have rightfully been concerned since before World
War II about the dangers of hostile foreign agents likely to
commit acts of espionage. Similarly, the violent acts of
political terrorists can seriously endanger the rights of
Americans. Carefully focused intelligence investigations can
help prevent such acts.
But too often intelligence has lost its focus and domestic
intelligence activities have invaded individual privacy and
violated the rights of lawful assembly and political
expression. Unless new and tighter controls are established
by legislation, domestic intelligence activities threaten to
undermine our democratic society and fundamentally alter its
nature.
A tension between order and liberty is inevitable in any
society. A government must protect its citizens from those
bent on engaging in violence and criminal behavior or in
espionage or other hostile foreign intelligence activity.
Intelligence work has, at times, successfully prevented
dangerous and abhorrent acts, such as bombings and foreign
spying, and aided in the prosecution of those responsible for
such acts.
But intelligence activity in the past decades has, all too
often, exceeded the restraints on the exercise of
governmental power which are imposed by our country's
constitution, laws, and traditions.
We have seen segments of our government, in their attitudes
and action, adopt tactics unworthy of a democracy, and
occasionally reminiscent of the tactics of totalitarian
regimes. We have seen a consistent pattern in which programs
initiated with limited goals, such as preventing criminal
violence or identifying foreign spies, were expanded to what
witnesses characterized as ``vacuum cleaners,'' sweeping in
information about lawful activities of American citizens.
That these abuses have adversely affected the
constitutional rights of particular Americans is beyond
question. But we believe the harm extends far beyond the
citizens directly affected.
Personal privacy is protected because it is essential to
liberty and the pursuit of happiness. Our constitution checks
the power of government for the purpose of protecting the
rights of individuals, in order that all our citizens my live
in a free and decent society. Unlike totalitarian states, we
do not believe that any government has a monopoly on truth.
When government infringes on these rights instead of
nurturing and protecting them, the injury spreads far beyond
the particular citizens targeted to untold number of other
American citizens who may be intimidated.
Abuse thrives on secrecy. Obviously, public disclosure over
matters such as the names of intelligence agents or the
technological details of collection methods is inappropriate.
But in the field of intelligence, secrecy has been
extended to inhibit review of the basic programs and
practices themselves.
Those within the executive branch and the Congress who
would exercise their responsibilities wisely must be fully
informed. The American people as well should know enough
about intelligence activities to be able to apply its good
sense to the underlying issues of policy and morality.
Knowledge is the key to control. Secrecy should no longer
be allowed to shield the existence of constitutional, legal
and moral problems from the security of all three branches of
government or from the American people themselves.
Those are incredible words that could. None of us could say it more
eloquently than our colleagues did 30 years ago.
I can't tell you all the names of the Republicans and Democratic
Senators who wrote this language, but they came from all parts of the
country. They were, many of them, veterans of World War II, had served
in Korea. Dan Inouye was here. I know that. Senator Byrd, whom I sit
next to, was here. Senator Ted Kennedy was here. Senator Ted Stevens
was here for those debates. Those are the Members I can think of off
the top of my head who were probably Members back in 1978 when this was
written. Joe Biden was here as part of that debate. Patrick Leahy was
here in 1978. I think Carl Levin and John Warner had just arrived. I
think they had been elected that year. I am not sure.
But these are wonderful Members who sat and realized we needed to set
up that balance between security and liberty and gave us the FISA
Courts, the Foreign Intelligence Surveillance Act. Tonight, as we
consider whether to grant immunity to the telecom companies and close
the door on determining the legality or illegality of their actions, I
think these words have tremendous relevance. Every Member ought to take
them and read them and think about them.
I hear the words of the President, and I am disappointed he said he
would veto the bill if we strip immunity. I have listened to Senator
McConnell, my good friend from Kentucky, saying we have to adopt this
because the President will veto the bill otherwise. That is not the
basis upon which the Congress ought to act. I have rarely heard that
argument made here. You can raise it, certainly, as a point, but the
suggestion that Congress or this body ought to act differently because
the President is going to veto something or threatens a veto is not the
basis upon which we ought to make decisions, particularly when it comes
to
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matters involving the rule of law and the Constitution of the United
States.
Those issues of the Constitution and the rule of law ought to trump
the reputational damage. The issues of the Constitution and the rule of
law ought to trump the arguments somehow that the telecom companies
will be less willing to step forward and help conduct the surveillance
of our country when we are threatened by outsiders.
I cannot undo some of the things that have been done already. I wish
I could undo the Military Commissions Act. I wish I could the outrages
that occurred at Abu Ghraib. I wish I could undo what has happened at
Guantanamo Bay. I wish I could undo secret prisons and extraordinary
renditions. But there is a pattern here. It is not just the one event
or two, it has been a pattern of behavior almost from the very
beginning that ought to be deeply troubling to every single one of us.
So while I cannot undo those actions, why would I then add to that
list by granting this retroactive immunity? What more do we need to
know? Why are we being asked to do this? Why did this administration
ask this committee to grant broad-based immunity to every single
individual in our Government and our agencies, as well as to the
telecom companies? What was behind that request? What did they fear
when they sought that kind of unprecedented immunity, for both the
private companies and every official involved in the decision to grant
or insist upon this compliance? Why were they asking us to do that?
So I know, while others have written about this here, I find it
deeply troubling that we can once more add this to the destruction of
tapes and the CIA, the U.S. attorneys scandal involving the Department
of Justice and U.S. attorney's offices. All of these matters, again,
are in and of themselves individual cases, and yet, when you step back
and think about the totality of them, why would this Congress, at this
hour, decide we are going to yet once again say: OK, we'll let you get
away with it one more time.
I wish I could go back and undo all of those abuses. I cannot. But we
have the opportunity not to do this. All it will take is 39 other
Senators.
All it will take is 40 of us here decide that at this moment in our
history that we are going to stand up for the rule of law, we are going
to stand up for the Constitution. No other issue we can get to is as
important as the Constitution of the United States, no other issue is
as important to me, ought to be to all Members, as the rule of law. And
as I have done on five separate occasions since January 3, 1981, when
as a 36-year-old I stood over here on the floor of the Senate, with
Lowell Weicker standing beside me--I raised my right hand and took an
oath to defend and uphold the Constitution of the United States. I am
proud to have done it five different times, as every Member here has
done at least once. What matter, what issue, would be more important
than defending the Constitution of the United States?
So tomorrow we may have the chance--40 of us--to not invoke cloture
and to insist that we are going to fight for this principle of the rule
of law and not add to this litany that is going to be revisited over
and over again: the Military Commissions Act, waterboarding, Abu
Ghraib, Guantanamo Bay, secret prisons, extraordinary renditions, U.S.
attorneys scandal, Scooter Libby, destruction of CIA tapes. How many
more do you need? Why not add this: retroactive immunity to the telecom
industry, at the request of a President who did not want the courts to
determine the legality or illegality of the actions?
During a critical moment in American history, I for one am not going
to allow that to happen.
I realize I have been talking a long time here. May I inquire how
long I have been speaking?
The PRESIDING OFFICER (Ms. Klobuchar.) Two hours 25 minutes.
Mr. DODD. As I say, I have already spent over 20 hours on this. And
as I say, I have never engaged in extended debate in my 27 years
because the matters were handled by others or because we came up with a
resolution of issues. But I stand here tonight, as I have over the last
several months--as many of my colleagues know, I interrupted a
Presidential campaign to come back and spend 10 hours on the floor here
when this matter came up in December, to raise my concerns about this
issue. I do not want to try the patience of the staff and others,
including my colleague who is patiently sitting in the Presiding
Officer's chair with little or no relief. So more than 20 hours of
making my case here is probably more than most people can tolerate. But
I want people to know how much I care about this and how much I wish
and hope and pray that this evening, Members, regardless of party, will
stand up tomorrow for the rule of law.
So tonight, my fervent prayer and hope is that when this vote occurs,
first of all, that I will be surprised and that 50 of our colleagues
here will join with Senator Feingold and myself and vote to strike this
language from the Intelligence Committee bill. That would be the best
result of all, and then we can send this bill to the other body and
have it resolved and sent to the President, hopefully, for his
signature. If that doesn't occur, then I hope 38 others would join
Senator Feingold and me in voting against cloture in a historic moment
and send this bill back to be revised to comply with the Judiciary
Committee's decision excluding the retroactive immunity. That would be
the second best result.
With that, Madam President, after almost 2\1/2\ hours and the hours
before, I yield the floor.
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