[Congressional Record: June 24, 2008 (Senate)]
[Page S6082-S6095]
[On the Foreign Intelligence Surveillance Amendments Act]
Mr. DODD. [...]
This evening I rise to talk about another matter, which will be the
subject of a debate, whether it is in the next few days or weeks. It is
a subject matter which I care deeply and passionately about. It
involves the rule of law, the Constitution of the United States, and
the very basic principle that we are a nation of laws, not men; that
even those in the most lofty of positions in our Government are not
above the law; that individuals, corporations, and companies have an
obligation to respect that law, and those of us charged with guarding
it in an institution such as the Senate have an obligation to defend it
and to remind ourselves and the country when there are efforts to
undermine that rule of law.
As I did in December of last year, when the matter first came up, and
again in February, when the effort came back to the Senate to change
the Foreign Intelligence Surveillance Act, and particularly to grant
retroactive immunity to a handful of telecom companies, which, over the
past number of years, have gathered up information and private
information of individual citizens in this country, which may have been
the single largest breach or personal invasion in the history of our
country, the issue of whether that was done legally ought to be
determined by the courts of our country.
The bill that will come before us grants retroactive immunity without
ever considering what happened, how it happened, who was responsible,
why it was done, and why was no effort made to go before the Foreign
Intelligence Surveillance Courts--the FISA courts--which have been in
existence since the 1970s. All of those are important questions the
American people deserve an answer to. Was the rule of law violated?
Were there individuals who insisted that this invasion of privacy occur
in this country? I don't think it is asking too much to want to get to
the bottom of that. Americans, regardless of ideology or party
persuasion, ought to be jointly offended when there is an effort here
to grant retroactive immunity without determining what happened and why
these events were allowed to go forward.
This evening I am going to take the time allowed to me under the
rules of the Senate because we are in a postcloture environment. I am
limited to the amount of time I am permitted to talk under the rules of
the Senate. But I can do this because of the generosity of Senator Jack
Reed of Rhode Island, Senator Max Baucus of Montana, and the
willingness of the majority leader, to give me the maximum time allowed
to talk about this FISA bill, the Foreign Intelligence Surveillance
Act. I will speak about why I am so deeply concerned about it, and what
I think the precedent-setting nature of this could mean for our
country.
There are moments such as this when we are asked to do something
because, we are told, if we don't, we will jeopardize our Nation.
During such times, we have historically made some of the worst mistakes
in our history. One only needs to go back to the period of World War II
when, because of the fears people had, we incarcerated a lot of very
good Americans of Japanese descent, because those who engaged in the
fear mongering were able to convince even the Supreme Court of the
United States--a majority--to allow for the virtual incarceration of
literally thousands of human beings. We know now, today, what a great
mistake that was, and how courageous it was that people like Robert
Jackson, a Supreme Court Justice, a former Attorney General under
Franklin Roosevelt, a solicitor general, chief prosecutor at Nuremberg,
one of the sole voices on the Court who objected to that effort to
require these American citizens to be deprived of their homes, personal
belongings, and the virtual incarceration in camps in the western part
of the country. Today, we know what a mistake that was. But because we
acted out of fear, we made a dreadful error.
My concern about this FISA bill, while not of that magnitude at this
[[Page S6083]]
point, is that we are about to make another great error because of
fear, because we fail to understand that balancing legitimate interests
of our security and our rights ought not to be compromised. That is
what the FISA courts were created to do--to balance rights and fears
over legitimate concerns about our security being jeopardized.
So I rise once again to voice my strong opposition to the misguided
FISA legislation before us, as it will come in the next day or so. I
have strong reservations about the so-called improvements made to title
I of the legislation. But more than that, this legislation includes
provisions that would grant retroactive immunity to telecommunications
companies that apparently have violated the privacy and the trust of
millions of our fellow citizens by participating in the President's
warrantless wiretapping program. If we pass this legislation, the
Senate will ratify a domestic spying regime that has already
concentrated far too much unaccountable power in the President's hands
and will place the telecommunications companies above the law.
I am here this evening to implore my colleagues to vote against
cloture when that vote occurs, as it will sometime in the next 24 to 48
hours.
Let me make it clear at the outset of the debate that this is not
about domestic surveillance itself. We all recognize, here and
elsewhere, the importance of domestic surveillance in an age of
unprecedented threats. This is about illegal, unwarranted, unchecked
domestic surveillance. The difference between surveillance that is
lawful, warranted, and that which is not, is everything.
I had hoped I would not have to return to this floor again under
these circumstances. I hoped, in truth, that in these negotiations that
went on over the past number of weeks and months we would have been
able to turn aside retroactive immunity on the grounds that it is bad
policy and sets a terrible precedent.
As all of my colleagues know, I have long fought against retroactive
immunity, because I believe it is simply an abandonment of the rule of
law. I have fought this with everything I have in me, and I have not
waged this fight alone.
In December, I opposed retroactive immunity on the floor of this
body. I spent 10 hours on this floor then. In January and February, I
came to the floor time and time again to discuss the dangers of
granting retroactive immunity, along with my colleague and friend, Russ
Feingold of Wisconsin, who has shown remarkable leadership on this
issue. I offered an amendment that would have stripped retroactive
immunity from the Senate bill. Unfortunately, our amendment failed and,
to my extreme disappointment, the Senate adopted the underlying bill.
Since passage of the Senate bill, there have been extensive
negotiations on how to move forward. Today we are being asked to pass
the so-called compromise that was reached by some of our colleagues and
approved by the other body, the House of Representatives.
I am here this evening to say I will not and can not support this
legislation. This legislation goes against everything I have stood
for--everything this body ought to stand for, in my view.
There is no question some improvements have been made over the
previous versions of this legislation. Title I, which regulates the
ability of Government to conduct electronic surveillance, has been
improved, albeit modestly. I congratulate those who were involved with
it. I say, very quickly, that it is my hope a new Congress and a new
President will work together to fix the problems with title I should
the Senate adopt this new legislation.
But in no way is this compromise acceptable. This legislation before
us purports to give the courts more of a role in determining the
legality of the telecommunications companies' actions. But in my view
the title II provisions do little more than ensure without a doubt that
the telecommunications companies will be granted retroactive immunity.
Allow me to quote the Senate Intelligence Committee report on this
matter. It reads as follows:
[B]eginning soon after September 11, 2001, the Executive
branch provided written requests or directives to U.S.
electronic communications service providers to obtain their
assistance with communications intelligence activities that
had been authorized by the President.
. . . The letters were provided to electronic
communication service providers at regular intervals. All of
the letters stated that the activities had been authorized by
the President. All of the letters also stated that the
activities had been determined to be lawful by the Attorney
General [of the United States], except for one letter that
covered a period of less than 60 days. That letter, which
like all the others, stated that the activities had been
authorized by the President, stated that the activities had
been determined to be lawful by the Counsel to the President.
This is all from the Intelligence Committee report.
Under the legislation before us, the district court would simply
decide whether the telecommunication companies received documentation
stating the President authorized the program and that there had been
some sort of determination it was legal. But as the Intelligence
Committee has already made clear, we already know this happened. We
already know the companies received some form of documentation with
some sort of legal determination.
But that is not the question. The question is not whether these
companies received a document from the White House. The question is,
Were their actions legal? Were they above the law or not?
It is a rather straightforward, surprisingly uncomplicated question.
The documentation exists. Was it legal or not? Either the companies
were presented with a warrant or they were not. Either the companies
and the President acted outside the rule of law or they followed it.
Either the underlying program was legal or it was not--not a
complicated question. Was it legal or wasn't it?
The suggestion that they had documentation is then supposed to be a
justification for the legality of it is not for us to decide. That is a
matter for the courts, the coequal branch of Government called the
judiciary. We are asked to determine that this was legal because
documents were sent, not because some adjudication as to whether there
had been a legal basis for these documents. Yet we are told that with
the adoption of this legislation, accept it as a conclusion and move
on. I don't believe we ought to do that. I believe it is a mistake and
a mistake of significance.
Because of this legislation, none of the questions will be answered.
Because of the so-called compromise, the judge's hands will be tied and
the outcome of these cases will be predetermined by our votes. Because
of this so-called compromise, retroactive immunity will be granted and,
as they say, that will be that. Case closed.
No court will rule on the legality of the telecommunications
companies' activities in participating in the President's warrantless
wiretapping program. None of our fellow Americans will have their day
in court. What they will have is a Government that has sanctioned
lawlessness, at least as far as we know.
I refuse to accept that argument. I refuse to accept the argument
that because the situation is too delicate, too complicated, this body
is simply going to go ahead while sanctioning lawlessness. I think we
can do better than that. I think we have an obligation to do better
than that.
If I have needed any reminder of that fact, simply look to those who
have joined this fight--my colleagues and the many Americans who have
given me an awful lot of support and strength for this fight, strength
that comes from the passion and eloquence of citizens who don't have to
be involved but choose to be involved.
They see what I see in this debate--that by short-circuiting the
judicial process, we are sending a dangerous signal to future
generations. They see us as establishing a precedent that Congress can
and will provide immunity to potential lawbreakers if they are
important enough.
Some may be asking: Why is retroactive immunity too dangerous? What
is the issue? Why should you care at all? Allow me to explain by
providing, if I can, a bit of context. I remind my colleagues what I
said about the bill months ago because the argument against providing
retroactive immunity remains unchanged. Nothing has changed since last
December, January or February.
[[Page S6084]]
Unwarranted domestic spying did not happen in a panic or short-term
emergency, not for a week, a month or even for a year. If it had, quite
candidly, I would not be standing here this evening. I understand, in
the wake of 9/11, there were actions taken because of the legitimate
fears we had, given the circumstances of that attack, that some actions
such as this for a week, a month, a year, I think I would have accepted
as normal, understandable behavior as a government overreacting in
haste and in the emotions of the moment. But that is not the case. We
now know this spying by the administration went on relentlessly for
more than 5 years.
I might not be here as well if it had been the first offense of a new
administration. Maybe not if it had been the second or third. Again,
understanding mistakes can be made. No one is perfect. Again, in the
haste of the moment, the emotions, these things can happen. But that is
not the case either.
Indeed, I am here tonight because with one offense after another
after another, I believe it is long past time to say enough is enough.
I am here this evening because of a pattern--a pattern of abuse against
civil liberties and the rule of law, against the Constitution of the
United States, of which we are custodians, temporary though that status
may be.
I would add that had these abuses been committed by a President of my
own party, I would have opposed them as strongly as I am this evening.
I am here this evening because warrantless wiretapping is merely the
latest link in a long chain of abuses.
So why are we here? Because it is alleged that giant telecom
corporations worked with our Government to compile Americans' private,
domestic communications records into a database of enormous scale and
scope.
Secretly, and without warrant, these corporations are alleged to have
spied on their own customers, the American people. Here is only one of
the most egregious examples, according to the Electronic Frontier
Foundation:
Clear, first-hand whistleblower documentary evidence
[states] . . . that for year on end, every e-mail, every text
message, every phone call carried over the massive fiber-
optic links of 16 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 and the Internet traffic of millions of Americans
diverted into a secret room controlled by the National Security Agency.
That allegation still needs to be proven in a court of law. But it
clearly needs to be determined in a court of law and not by a vote in
the Senate.
I suppose if you only see cables and computers there, the whole thing
seems almost harmless, certainly nothing to get worked up about; one
might say a routine security sweep and a routine piece of legislation
blessing it.
If that is all you imagine happened in the NSA secret room, I imagine
you will vote for immunity. I imagine you would not see much harm in
voting to allow the practice to continue either.
But if you see a vast dragnet for millions of Americans' private
conversations conducted by a government agency that acted without a
warrant, acted without the rule of law, then I believe you recognize
what is at stake. You see that what is at stake is the sanctity of the
law and the sanctity of our privacy. And you will probably come to a
very different conclusion.
Maybe that sounds overdramatic to some. Perhaps they will ask: What
does it matter at the end of the day if a few corporations are not
sued? These people sue each other all the time.
Others may say: This seems a small issue. Maybe the administration
went too far, but this seems like an isolated case.
Indeed, as long as this case seems isolated and technical, then those
who are supporting this will win. As long as it appears to be about
another lawsuit buried in our legal system and nothing more, then they
will win as well. The administration is counting on the American people
to see nothing bigger than that--nothing to see here.
But there is plenty to see here, and it is so much more than a few
phone calls, a few companies, and a few lawsuits. What is at stake is
nothing less than equal justice--justice that makes no exceptions. What
is at stake is an open debate on security and liberty and an end to
warrantless, groundless spying.
The bill does not say trust the American people, trust the courts and
judges and juries to come to a just decision. Retroactive immunity
sends a message that is crystal clear: Trust me. And that message comes
straight from the mouth of an American President: Trust me.
What is the basis of that trust? 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, of course. I have served in
this body for 27 years, and I am not allowed to see them. Neither are a
majority of my colleagues. We are all left in the dark.
I cannot speak for my colleagues, but I would never take the ``trust
me'' for an answer, not even in the best of times, not even from a
President on Mount Rushmore. 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 are not spoken by someone who took our national security
lightly. They were spoken by Ronald Reagan in 1980. They are every bit
as true today. President Reagan's words--let me repeat them:
``Trust me'' government is government that asks that we
concentrate our hopes and dreams on one man; that we trust
him to do what is 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 of Ronald Reagan, 28 years ago, were right and those
words are right today in the year 2008. They are every bit as true
today, even if times of threat and fear blur our concept of
transcendent values, even if those who would exploit those times urge
us to save our skins at any cost.
But again, why should any of us care, I suppose. The rule of law has
rarely been in such a fragile state. Rarely has it seemed less
compelling. What, after all, does the law give us, anyway? It has no
parades, no slogans. It does not live in books or precedents. We are
never failed to be reminded the world is a very dangerous place.
Indeed, that is precisely the advantage seized upon, not just by this
administration but in all times, by those looking to disregard the rule
of law. Listen to the words of James Madison, the father of our
Constitution, words that he said more than two centuries ago:
It is a universal truth that the loss of liberty at home is
to be charged to the provisions against danger . . . from
abroad.
With the passage of this bill, the words of James Madison will 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.
What is this about? It is about answering the fundamental question:
Do we support the rule of law or the rule of men? To me, this is our
defining question as a nation and may be the defining question that
confronts every generation, as it has throughout our history.
This is about far more than a few telecoms. It is about contempt for
the law, large and small.
I have said that warrantless wiretapping is but the latest link in a
long chain of abuses when it comes to the rule of law. This is about
the Justice Department turning our Nation's highest law enforcement
offices into patronage plums, turning the impartial work of indictments
and trials into the pernicious machinations of politics. Contempt for
the rule of law once again.
This is about Alberto Gonzales, the Nation's now-departed Attorney
General, coming before Congress to give us testimony that was, at best
wrong and at worst, outright perjury. Contempt for the rule of law by
the Nation's foremost enforcer of the law.
This is about a Congress handing the President the power to designate
any individual he wants as an unlawful enemy combatant, hold that
individual indefinitely, take away his or her right to habeas corpus,
the 700-year-old right to challenge anyone's detention.
[[Page S6085]]
If you think the Military Commissions Act struck at the heart of the
Constitution, you would be understating this. It did a pretty good job
on 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 you are entitled to a trial? How can you prove you
are innocent? In fact, without a day in court, how can you let anyone
know you have been detained at all?
Thankfully, and to their great credit, the Supreme Court recently
rebuked the President's lawlessness and ruled that detainees do have
the right to challenge their detention.
Mr. President, the Military Commissions Act also gave President Bush
the power some say he wanted most of all: the power to get information
out of suspected terrorists by virtually any means, the power to use
evidence gained from torture.
I don't think you could hold the rule of law in any greater contempt
than sanctioning torture. Because of decisions made by the highest
levels of our Government, America is making itself known to the world,
unfortunately, for torture, 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, but
Guantanamo. Think about it.
We have legal analysts so vaguely defining torture, so willfully
blurring the lines during interrogations that we have CIA
counterterrorism lawyers saying things like, ``If the detainee dies,
you're doing it wrong.'' We have 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 great freedoms. We have an administration actually defending
waterboarding, a technique invented by the Spanish Inquisition,
perfected by the Khmer Rouge, and in between originally banned for
excessive brutality--listen to this--by the Gestapo.
Still, some way waterboarding is not torture. Oh, really? Listen to
the words of Malcolm Nance, a 26-year-old expert in intelligence and
counterterrorism, a combat veteran, and former chief of training at the
U.S. Navy Survival, Evasion, Resistance and Escape School. 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 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.
That is from a soldier, a combat veteran, testifying about what
waterboarding was about--controlled death. That is not torture? Not
according to President Bush's White House. They have said waterboarding
is legal and that if it chooses, America will waterboard again.
Surely, then, our new Attorney General would condemn torture. Surely
the Nation's highest law enforcement officer in the land, coming after
Alberto Gonzales's chaotic tenure, would never come before the Congress
and defend the President's power to openly break the law. Well, think
again.
When he came to the Senate for his confirmation, Michael Mukasey was
asked a simple question, bluntly and plainly: Is waterboarding
constitutional? He replied: ``If waterboarding is torture, torture is
not constitutional.''
One would hope for 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,'' he said. And that is
the best this noted jurist, this legal scholar, longtime judge, an
expert on national security law had to offer on the defining moral
issue of this Presidency. Claims of ignorance. Word games.
Now-Attorney General Mukasey was asked the easiest question we have
in a democracy: Can the President of the United States openly break the
law? Can he, as we know he has already done, order warrantless
wiretapping, ignore the will of Congress, and then hide behind nebulous
powers he claims to find in the Constitution? The response of the
nominee to become Attorney General: The President has ``the authority
to defend the country.'' In one swoop, the Attorney General conceded to
the President nearly unlimited power, just 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 Nation, to protect us as
one man sees fit, even if that means listening to our phone calls
without a warrant, even if it means holding some of us indefinitely.
That is contempt for the rule of law.
So this is very much about torture--about enhanced interrogation
measures and waterboarding. It is also about extraordinary rendition--
outsourced torture of men this administration would prefer we didn't
even know exist.
But now we do know. One was a Syrian immigrant raising his family in
Canada. He wrote computer code for a company called MathWorks and 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 onto a private CIA plane and 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, another
bowl for his water, and the door only opened so he could wash himself
once a week--though it may have been more or less because the cell was
dark and he lost all track of time. The door only opened for one
reason: for interrogators who asked him again and 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 you
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,''
as it is called. 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 year-long official investigation and awarded him
more than $10 million in government compensation for his immense pain
and suffering--but not before he was tortured 10 months, 10 days in a
3-foot by 3-foot cell the size of a grave. Does his torture make us
safer? Did his suffering improve our security? Of course not.
I would note that our own Government has shamefully refused to even
acknowledge that his case exists.
We know about a German citizen as well, 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,
[[Page S6086]]
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
acknowledge he was wrongly held. What was his crime? Having the same
name as a suspected terrorist.
Again, our own Government has shamefully refused to even acknowledge
that this case exists.
So we do know, Mr. President. We know because there aren't enough
words in the world to cover all 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, as Rush Limbaugh did, or to use a favorite term of
Vice President Cheney's, ``a dunk in the water.'' You can call it
whatever you like. But when you are through, the facts will be waiting
for you: controlled death, outsourced torture, secret prisons, month-
long sleep deprivations, the President's personal power to hold
whomever he likes for as long as he likes. It is as if you had awakened
in the middle of some Kafka-esque nightmare.
Have I gone wildly off topic, Mr. President? Have I brought up a
dozen unrelated issues? I wish I had. I wish that none of these stories
were true. But we are deceiving ourselves when we talk about the U.S.
attorneys issue, the habeas issue, the torture issue, the rendition
issue, or the secrecy issue as if each were an isolated case, as if
each were an accident. When we speak of them as isolated, we are
keeping our politics cripplingly small. And as long as we keep this
small, the rule of men is winning.
There is only one issue here; that is, the rule of law, the law
issue. Does the President of the United States 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. If we attack this
concept for the law at any point, we will wound it at all points.
That is why I am here this evening, Mr. President. Retroactive
immunity is on the table for discussion over these next several days,
but also at issue is the entire ideology that justifies it, the same
ideology that defends 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 their verdict goes
their way; that some only believe in the rule of law so long as
exceptions are made at their desire. It puts secrecy above sunshine and
fiat above the law.
Did the telecoms break the law? I don't know. I can't say so. But
pass immunity, and 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, and the cases will be closed
forever.
``Law'' is a word we barely hear from the supporters of immunity.
They offer neither deliberation about America's difficult choices in
the 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, ever
both.
I think differently, and I believe some of my colleagues do as well.
I think America's founding truth is unambiguous: security and liberty,
one and inseparable and never one without the other, no matter how
difficult the situation, no matter what threats we face. 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 30
years, 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 in the 1970s, the Senate
convened the Church Committee, a panel of distinguished former Members
of this body determined to investigate executive abuses of power. Not
surprisingly, they found that when Congress and the courts substitute
``trust me'' ideas for real oversight, massive lawbreaking can result.
The Church Committee found evidence of the U.S. Army spying on the
civilian population, Federal dossiers on citizens' political
activities, a CIA and FBI program that 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.'' At the same time, the Senators of the Church
Committee understood surveillance was needed to go forward to protect
our people.
Surveillance itself is not the problem. Unchecked, unregulated,
unwarranted surveillance was. What surveillance needed, in a word, was
legitimacy. And in America, the Founders understood power becomes
legitimate when it is shared. Congress and the courts check that
attitude which so often crops up in the executive branch--``if the
President does it, it is not illegal.''
The Church Committee's final report, ``Intelligence Activities and
the Rights of Americans,'' put the case very powerfully indeed.
The critical question before the committee was to determine
how the fundamental liberties of our people can be maintained
in the course of the government's efforts to also protect our
people. The delicate balance between these basic goals, two
absolutely essential goals of our system of government, is
often difficult to strike, and it is never perfect, but it
can, and must, be achieved.
A sense of balance between liberty and security, security and
liberty.
We reject the view that the traditional 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.
The Church Committee went on:
We have seen segments of our government, in their attitudes
and actions, 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 Church committee Senators concluded:
Unless new and tighter controls are established by
legislation, domestic intelligence activities threaten to
undermine our domestic society and fundamentally alter its
nature.
What a strange echo from three decades ago we hear in those words.
They could have been written yesterday; could have been written
tonight.
Three decades ago, our predecessors in this Chamber, Republicans and
Democrats, responding to an abuse of power, crafted a wonderfully
balanced idea between security and liberty. They did it in this very
Chamber, coming together. They understood that when domestic spying
goes too far it threatens to kill just what it promises to protect--an
America secure in her liberty. That lesson was crystal clear 30 years
ago. Why is it so clouded today?
Before we entertain the argument that everything has changed since
those words were written, remember: The men who wrote them had
witnessed a World War, the Cold War, had seen Nazi and Soviet spying,
and they were living every day under the cloud of a nuclear holocaust.
It was indeed a dangerous time. Certainly, the argument that we have to
take extraordinary measures to protect ourselves against those who
would do us great injury--those were not easy times. Yet those
Republicans and Democrats, our predecessors in this Chamber, struck
that balance and reminded us that our security was important, but it
needed to be tempered and understood in the context of our freedoms and
our liberties.
So I ask this: Who will chair the commission investigating the
secrets of warrantless spying years from today? Will it be a young
Senator in the body today who maybe has just joined us in the last 2
years? Will it be someone not yet elected? What will that Senator say
when he or she comes
[[Page S6087]]
to our actions, maybe three decades from now, as I just quoted from a
report 30 years ago, which is so wonderfully written and captures
exactly the essence of what I am arguing for this evening? What will
that Senator say when he or she reads about the actions of a Senate
here--reads in the records how we let 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? What happened between the 1970s and the year 2008, that two
Senates in 30 years time could go from standing up for the rule of law
and liberty in the face of executive abuses--what happened to that
Congress that decided 30 years later that they would do just the
opposite; in fact, retreat from that fight?
In June of 2008, when no one could doubt any more what this
administration was doing, why did they sit on their hands and do almost
nothing? In fact, go further. Why did they grant immunity to companies
that had engaged in warrantless wiretapping?
Since the time of the Church Commission, the threats facing us 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 our Government.
Or the case could be made pragmatically. As my friend, Harold Koh,
dean of Yale Law School, recently argued:
The engagement of all three branches tends to yield not
just more thoughtful law but a more broadly supported public
policy.
Three decades ago, our predecessors in this Chamber embodied that
solution in the Foreign Intelligence Surveillance Act, the FISA law.
FISA confirmed the President's power to conduct surveillance of
international conversations involving anyone in the United States,
provided that the Federal FISA Court issued warrants 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 last summer:
The United States 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 numerous times, I might
add, FISA has accomplished its mission. It has been a valuable--
invaluable tool for conducting needed surveillance of those who would
do us great harm and those who would harm our country. Every time
Presidents have come to Congress openly to ask for more leeway under
FISA, our Congresses have worked with them. Congress has negotiated,
and together Congress and the executive branch have struck a balance
that safeguards America while doing its utmost to protect our privacy.
Last 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 computers. For other reasons, I believed that this past
summer's legislation went too far, and I opposed it. But the point is
that Congress once again proved its willingness to work with the
President on FISA.
Isn't that enough?
Just this past October and November, the Senate of the U.S.
Intelligence and Judiciary Committees worked with the President to
further refine FISA and ensure that, in a true emergency, the FISA
Court would do nothing to slow down intelligence gathering.
Wasn't that enough?
And, as for the FISA Court, between 1978 and 2004, according to the
Washington Post, the FISA Court approved--and listen to these numbers--
18,748 warrants from 1978 to 2004--18,748 warrants. It rejected 5;
18,748 warrants were approved; 5 were rejected between 1978 and 2004.
The FISA Court has sided with the executive branch 99.9 percent of the
time. Wouldn't you think that would be enough? Is anything lacking?
Have we forgotten something here? Isn't all of this enough to keep us
safe? There were numerous amendments in 30 years to a piece of
legislation to strike the balance between security and liberty.
Of course, we all know the answer we have received. This complex,
finely tuned machinery, crafted over 3 decades by 3 branches of
Government, 4 Presidents, and 12 Congresses, was ignored for 5 long
years. It was totally ignored. It was a system primed to bless nearly
any eavesdropping a President could conceive of, and spying still
happened illegally--18,748 warrants approved from 1978 on; 5 were
turned down. Yet this administration completely disregarded the FISA
Court in seeking the warrantless wiretapping by the telecom industry.
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. Yet still that wasn't
good enough.
I ask my colleagues of this body candidly, and candidly it already
knows the answer: Is this about security or is it about power? Why are
some fighting so hard for retroactive immunity? The answer, I believe,
is that immunity means secrecy, and secrecy means power. It is no
coincidence 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 30 years
ago--bipartisan, by the way--expressed succinctly the deep flaw in the
Nixonian executive: ``Abuse thrives on secrecy,'' they said, and in the
exhaustive catalog of that report, they proved it.
In this push for immunity, secrecy, I believe, is at the center of
it. We find proof in immunity's original version, a proposal to protect
not just the telecoms, but everyone involved in the wiretapping
program. Remember that in the original proposal of what is before us
today, or will be before us, that is what they wanted to immunize--
themselves. The administration asked that everyone be immunized. To
their credit, the Intelligence Committee rejected that request, but it
ought to be instructive that the Bush administration requested total
blanket immunity for everyone involved in that program.
What does that tell you about their intentions or their motivations?
Think about it. It speaks to their fear and perhaps their guilt, their
guilt that they have broken the law and their fear that in the years to
come they would be found liable or convicted.
They knew better than anyone else what they had done. They must have
had good reason to be concerned.
Thankfully, immunity for the Executive is not part of this bill, and,
again, I congratulate the committee. But don't ever forget it was asked
for. That will tell you something about motivations.
The original proposal tells us something very important, that this is
and always has been a self preservation bill. Otherwise, why not have
the trial and get it over with? If the proponents of retroactive
immunity are right, that the documentation alone is all you need to
prove legality, the corporations will win in a walk. After all, in the
official telling, the telecoms were ordered in documents 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 and Afghanistan.
But ignore comparison which, frankly, I find deeply offensive. 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
scare or bully you into breaking the law, though it seems that tactic
has proven surprisingly fruitful. Ignore that the telecoms were not
unanimous. One of them, Qwest, wanted to see the legal basis for the
order, never received it, and so refused to comply. Not everyone
decided that documentation alone was a legal justification for 5 years
of vacuuming up the private information of American citizens.
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.
[[Page S6088]]
Ignore all of that: If the order the telecoms received was legally
binding then they have a 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 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 they are afraid of leaks. Our Federal court system
has dealt for decades with the most delicate national security matters,
building up an expertise in protecting classified information behind
closed doors, ex parte and 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 levels, no state secrets have been exposed.
In fact, Federal district court judge Vaughn Walker--a Republican
appointee, I might point out; the quotes are from him--has already
ruled that the issue can go to trial without putting state secrets in
jeopardy. Walker reasonably pointed out--Ronald Reagan's appointee to
the bench, I point out--the existence of the terrorist surveillance
program is hardly a secret at all.
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, the
privilege 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, 50 years later I might add, decades after anyone in the
Truman administration was within reach, it contained no state secrets
at all, only facts about the repeated maintenance failures that would
have seriously embarrassed some important people. So the state secrets
privilege began its career, not to protect our Nation, but to protect
some powerful people.
In his opinion, Judge Walker argued, even when it is reasonably
grounded--let me quote him:
. . . 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.
Again, that is not some wild-eyed liberal judge drawing the
conclusion in this case. That is a sober conservative judge who reminds
us of the balance that is necessary; why there is a coequal branch
called the judiciary, where that body, not elected representatives in a
voting Chamber, should determine the legality of this action taken by
these companies.
He went on to say--the judge's words:
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.
That is a judge reminding this body that to suggest somehow we grant
blanket immunity to these companies is to dismiss this case at the
outset, as he points out, sacrificing liberty with no apparent
enhancement of our security.
And that ought to be the epitaph of this administration:
``sacrificing liberty for no apparent enhancement of our 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. Baloney. I do not believe it. The truth is,
after the 1970s, FISA has compelled telecommunications companies to
cooperate with surveillance when it was warranted. What is more, it
immunizes them. It has done that for more than a quarter of a century.
So cooperation in warranted wiretapping is not at stake today, and
despite the claims of supporters of immunity, it never has been.
Collusion in warrantless illegal wiretapping is. And the warrant makes
all the difference, because it is precisely the court's blessing that
brings Presidential power under the rule of law, even when that
warrant, as we permit, is granted after the surveillance has already
begun, as you can under the FISA 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. It does jeopardize our liberty. And it would only
expose one secret: the extent to which the rule of law has been
trampled upon. Does documentation qualify as legal authority? Again,
that is not a matter for a majority in this Chamber to decide by a
vote. It is a matter for our courts to determine: Were these letters
that were transmitted--was there a legal justification? Why didn't the
administration go to the FISA Court, where 18,748 requests have been
made since 1978 and granted, and only 5 rejected, a secret Federal
court where a warrant could have been granted after the fact of the
surveillance actually having begun? Why didn't they do that? Why did
they send out letters? Why didn't they go before that court? I am not
concluding they did it wrongfully, but I don't know they didn't do it
wrongfully. That ought to be determined by the courts of law, not to be
above the law.
That is the choice at stake today: Will the secrets of the last years
remain closed in the dark, as they will once we grant this immunity, or
will they be open for generations to come? What will they think of us?
I revere what this Congress did in 1978, Democrats and Republicans,
standing up to executive powers and abuses. They fashioned a law that
granted us greater protection over those who would do us harm while
simultaneously protecting our rights and liberties. What a great
Senate. What a great Congress that had the courage to stand up and put
aside partisan differences and stand up for 200 more years of this
Nation's history of liberty, of freedom.
What will be said about this Congress? When a future generation looks
back at this hour, what did we do when faced with a similar fact
situation and were confronted with that choice? Or will we be open to
the generations to come, as I said, to our successors in this Chamber
so they can prepare themselves to defend against future outrages, as
they will surely occur, of power and usurpations of law from future
Presidents of either party? As I stand here this evening, I promise you
it will happen. It has never not happened in the past; it will in the
future. That is why we have these shared powers to maintain that
balance. We are going to concede that by suggesting that in this most
important of all cases we are going to grant retroactive immunity. For
what? For what? Can anyone even begin to make the case that our
security gets enhanced because we deprive Americans who feel they may
have been wronged by determining whether the actions taken by these
companies at the behest of an administration were legal?
Now, 30 years after the Church committee, history has repeated
itself. If those who come after us are to prevent it from happening
again, they need the full truth. That is why we must not allow these
secrets to go quietly into the night. I am here this evening because
the truth is no one's private property; it belongs to every one of us.
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 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.
To begin with, that is a clear exaggeration. We are talking about
some of the wealthiest, most successful companies in America. Some of
them 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 that these lawsuits are doing the telecoms
severe reputational damage, as Mike McConnell suggested. Companies of
that size could not be completely wiped out by anything but the most
exorbitant and unlikely judgment. To assume that the telecoms
[[Page S6089]]
would lose, and that their judges would then hand down such back-
breaking penalties, is already to take several leaps.
Opponents of immunity, including myself, have stated that we would
support a reasonable alternative to a blanket retroactive immunity. No
one seriously wants to cripple the telecommunications industry. The
point is to bring checks and balances back to domestic spying.
Accepting that precedent would hardly require a crippling judgment. It
is much more troubling, though, that the Director of National
Intelligence would even suggest such an argument. I might understand if
the Secretary of the Treasury made that case, or some economist at the
World Blank or the IMF or the Federal Reserve. But to have the
Intelligence Director of our country suggest liability protections for
private sector entities, even to speak of that, is rather incredible.
This is not the Secretary of Commerce we are talking about but the head
of our Nation's intelligence efforts.
For that matter, how does that even begin to be relevant to letting
this case go forward? Since when did we throw out entire suits because
the defendants stood to lose too much? It astounds me that some can
speak in the same breath about national security and bottom lines.
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, of course, exactly the opposite, or it should be. The larger
the corporation, unfortunately, the greater the potential for abuse.
No one suggests that success should make a company suspect. Companies
grow large and essential to our economy because they are excellent at
what they do, and most of them are overwhelmingly well managed. But the
size and wealth open the realm of possibility for abuse far beyond the
scope of the individual.
After all, if the allegations are true, we are talking about one of
the most massive violations of privacy in American history. Shouldn't
there be some retribution or penalty? 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, and prying up all of the floorboards.
The scale of these corporations opens unprecedented possibilities for
abuse, possibilities far beyond the power of the individual. What the
telecoms have been accused of could not be done by one man or even 10.
It would be inconceivable without the size and resources of a large
corporation, the same size that makes Mike McConnell fear the
corporation's 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, Ronald Reagan's appointee to the Federal bench. But the
arguments of the President's allies sink even lower. Listen to words of
a House Republican leader spoken on FOX News. They are shameful:
I believe that they 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 actually 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 every year.
But if the facts actually mattered 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 can conclude that we were not
ever serious about law, or about privacy, or about checks and balances;
it was all about money all along.
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, if I could, a few minutes reviewing in detail those
claims and their failures. I will put up some of these quotes here for
you.
The first argument is: The President has the authority to decide
whether the telecoms should be granted immunity.
The facts are the judiciary, not the executive branch, should be
allowed to determine whether the President of the United States has
exceeded his powers by obtaining from the telecoms wholesale access to
domestic communications of millions of ordinary citizens. That is one
of the arguments of those who argue that the granting of immunity is a
Presidential prerogative. I argue quite the opposite. The court should
not simply be in the business of certifying that the companies received
some form of documentation, some letters that they received; rather,
they should be allowed to evaluate the validity of the legal arguments
attested to in the document. Was the request legal or not? Is a letter
a legal document that requires you to cooperate?
Remember, the administration's original immunity proposal protected
everyone, as I said a moment ago, involved in the wiretapping program,
not just the companies. In their original proposal to the Congress,
they wanted to immunize themselves as well. As I said, thankfully the
committee disregarded that request. They made it. But, again, I think
that is instructive.
The second argument: Immunity supporters claim that only foreign
communications were targeted, not Americans' domestic calls.
And here, litigation against the telecom companies is based upon
clear, firsthand evidence, authenticated by those corporations in
court. Every e-mail, every text message, every phone call, foreign or
domestic carried over the massive fiber optic links of 16 separate
companies, routed through AT&T's Internet hub in San Francisco, have
been knowingly diverted by AT&T by means of multiple splitters into a
secret room controlled exclusively by the NSA. There may be other such
rooms as well.
This was given to the courts by the individual who was involved
directly in the program. So the argument was only conversations between
foreign targets that they have argued is completely and factually
wrong.
The third argument immunity supporters make is that: A lack of
immunity will make the telecoms less likely to cooperate.
Again, I made this case a moment ago. But for more than 25 years the
FISA legislation has compelled the telecommunications companies to
cooperate. This is not a choice if, in fact, the FISA courts demanded
it. In fact, when they have done that, what they do is they also
immunize, so they can protect these companies against future litigation
that can occur from people who claim they have done something wrong in
the process.
But to argue somehow these companies might never again be helpful is
to not understand existing law. For 25 years they have, in fact, been
compelled to comply and, in fact, we provided the immunity when they
have done so.
Why in this case, after 25 years, did the Bush administration
completely disregard this? And instead of compelling their compliance,
and providing the immunity they would have gotten immediately, they
decided to send a letter instead, without any legal documentation,
without any argument at all. But they are relying on that thin reed of
a letter saying, ``You should do this.'' ``We want you to do this.''
Not all of them complied. Qwest said: Wait a minute, that is not
legal. A letter is not enough. They did not comply, and obviously they
did not get involved in the program and they were not asked to do so
further. So I am rather mystified. Shouldn't we know the answer to that
question? Is it wrong for us to say: I think you ought to explain why
you think that was legal?
Why was a document legal? The fact that we are immunizing, in effect,
through retroactive immunity, their actions, what sort of precedent are
we setting? That we are in a sense, if you
[[Page S6090]]
will, almost sanctioning that action. While we are saying it should
never happen again, I will almost guarantee you that someday someone
will do something like it and will refer to this Congress's decision
to, in effect, sanction the use of letters alone without documentation
to determine the legality of their actions.
The fourth argument: Immunity supporters argue that telecoms can't
defend themselves without exposing State secrets. This is highly
offensive. Again, Judge Walker has already ruled the issue can go to
trial. In fact, he was incensed, as I quoted earlier.
``The Government,'' he said, ``has [already] disclosed the general
contours of the `terrorist surveillance program,' which requires the
assistance of a telecommunications provider.''
The suggestion that State secrets--I know the Presiding Officer is a
former attorney general, and I am preaching to the choir on these
matters, but I am confident he knows that for decades Federal courts
meeting ex parte in camera have religiously guarded State secrets when
they have been asked to make judicial decisions about matters involving
information that could fall into the area of State secrets. I don't
know of any example where leaks have occurred. So the suggestion that
if you allow this to go into Federal court to determine the legality of
this action, actions that now are publicly well known, that somehow we
are going to have a leak of State secrets, there is not a scintilla of
evidence that has ever been the case. It is a phony argument to suggest
that somehow State secrets would be jeopardized.
Five: Immunity supporters claim they are already protected by common
law principles. In this case, of course, 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 the
telecommunications companies 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 the alleged domestic dragnet
was legal. Even so, the telecommunications company defendants can and
should have the opportunity to present these defenses to the courts,
and the courts--not Congress preemptively--should decide whether they
are sufficient. Again, common law does not trump specific legal duties
imposed by statute.
The sixth argument immunity supporters claim is that leaks from the
trial might damage national security. I have already talked about this.
I said that the Federal courts over the years have handled matters very
well, and this is a red herring. When, if ever, then, can we challenge
the legality of actions in Federal courts? If the case is made in this
case, if this is upheld and we buy into that argument on this matter,
which is already publicly known but also, in a sense, siding, if you
will, with this argument by granting retroactive immunity, then in
cases where, in fact, national security information may, in fact, be at
risk, I suspect the same argument will be made, and they will be
relying on the actions taken by the Senate, in this case, involving the
telecom companies. This is the kind of precedent-setting action that
could occur by our vote to grant retroactive immunity, if we buy into
this very argument, which is a dangerous argument, indeed, to suggest
somehow that our Federal courts are incapable of providing the kind of
security where national security leaks could occur. We can be
increasingly confident that these cases will not expose State secrets
based on history.
The seventh argument made by the supporters of this effort to grant
retroactive immunity, they claim that litigation will harm the telecoms
by causing them reputational damage. I hesitate to even make an
argument against this, it is so offensive to me. The fact that the
Director of the National Security Agency would suggest somehow there
was a financial loss to the companies if we went further with this,
that is not the kind of argument I expect to be made by someone who is
in charge of intelligence. That is an economic argument. It doesn't
hold up, in my view. We are talking about wealthy companies. But even
so, I don't know if anyone is suggesting that these actions, if, in
fact, they prove to be true, that, in fact, there was an illegal action
taken here, would necessarily warrant an overexcessive judgment that
would somehow cripple these 17 companies from their financial well-
being.
There is plenty of evidence that they are doing tremendously well.
But the idea somehow that a company ought not to be sued, that a
plaintiff ought not to bring a case because you might win and there
might be damage financially, that is a ludicrous argument on its face
to make when we are talking about millions of people's rights of
privacy being invaded for 5 years by 17 companies vacuuming up every
bit of information, that you might be damaged because the plaintiffs
might win. It is a foolish argument and a dangerous one to make as
well.
The eighth argument, immunity supporters claim the lawsuits will
bankrupt the companies. It is the same argument as I made about
financial damage. The fact is, if we accept that premise about
financial damage or reputational damage, if we could conceive of a
corporation so wealthy, so integral to our economy that its riches
place it outside the law altogether, that is a frightening concept, and
I hope it will be rejected by our colleagues. Ensuring a day in court
is not the same as ensuring a verdict. When that day comes, if it
does--and I doubt it will, in light of the votes that have been cast
in the past--I have absolutely no investment in a verdict either way.
But I am bothered by it. I am bothered that the administration didn't
go to the FISA Court, as others had 18,748 times since 1978, and on
five occasions the warrants were rejected, and in 18,748 cases, the
warrants were granted, that this administration decided not to go that
route, I have my doubts. But nonetheless, what I am calling for is not
a verdict by this body. All I am calling for is to allow a judgment to
be rendered by a court of law, allow plaintiffs to make their case,
allow a Federal judge in that coequal branch of government to determine
whether what occurred was legal. If it was legal, case over. If it was
not, then allow the plaintiffs to make their case and be rewarded
accordingly.
But by a vote of 51 to 49 or whatever the vote may be here, we are
going to superimpose our judgment for a legal argument. I think letting
a political judgment replace a legal judgment is a dangerous precedent
indeed. This is a big matter. We ought to have the courage to stand up
to this administration, after a litany of abuses over the last 7 years.
As I said some time ago, if this had been for a week, a month, a year,
after 9/11, I would not be here tonight. I am a reasonable, practical
person. The emotions were high; fears were great after we were
attacked. The fact that someone might have rushed in and done something
like this, I might not like it, I may worry about it, but I wouldn't
prejudge it. Emotions could be such that one would take those actions.
But this went on for 5 years and would still be going on if a
whistleblower hadn't stood and said: This is what is happening. And it
was reported widely in the national media. That is the only reason it
stopped. If not, it would be still going on. So it wasn't one of these
early events that can sometimes happen in which reasonable people ought
to be able to step back and say: I understand why that happened.
If we were talking about an administration that had been upholding
the rule of law over the last 7 years or had been defending it, I might
also not be standing here. But how many lessons do we have to learn
about an Attorney General politicizing U.S. attorneys, rendition,
torture, walking away from habeas corpus, walking away from the Geneva
Conventions? How many more examples do we have to have of how this
administration regarded the rule of law? And yet at the end of all
that, within months of this administration leaving town, this body is
going to say: We are going to side with the administration, grant
immunity, and we will never find out what went on here. Why did this
crowd seek immunity for itself, if it wasn't fearful about a judgment
or a court of law examining what happened here? When letters became the
legal basis rather than going to the very court that had been around
for 30 years, that had provided warrants over and over again in 99.9
percent of the cases, why did this administration decide not to go that
route and seek that
[[Page S6091]]
kind of a warrant from the very secret court established to strike that
balance between the needed security and surveillance we should have and
balancing those rights so the judgments could be rendered?
Just as it would be absurd to declare the telecoms clearly guilty, it
would be equally absurd to close the case in Congress without a
decision. That is immunity.
Throughout this debate, telecoms' advocates have needed to show not
just that they were right but that they are so right and that they are
so far beyond the pale that we can shut down the argument right here
and now with a vote, grant them immunity. That is a burden they have
clearly not met, in my view, in any of the arguments, all eight of
them, that they have made. They cannot expect to meet it when a large
majority of our colleagues who will make that 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. They
deserve to do their jobs. That is what the Founders created. It has
been a great system of checks and balances, coequal, three coequal
branches of Government--an executive, a legislative, and a judicial
branch. We have an executive branch that took action. We are going to
have a legislative branch that is going to sanction it by granting
immunity without ever allowing that coequal branch of Government to
determine the legality of their actions. We are depriving what the very
Founders of our country insisted upon.
This isn't about being a Democrat, a Republican, a liberal or a
conservative. It is about whether you understand the rule of law, that
no man, not even the President, is above it. Whether this President was
of my party or anyone else's, I would stand here with the same degree
of passion in making this case. A case I know I have lost in the past
but I care so deeply about that I want my children and my grandchildren
one day to know that their father and grandfather at this moment stood
for the rule of law. And I believe my colleagues, if given the chance
to think about this, will reach the same conclusion.
This is one of those moments. They don't happen very often, but they
do happen here. We have learned about them only after the fact too
often. But this one is before us as it has been over the last number of
months. We owe it not only to ourselves but to future generations to
stand for these timeless principles of the rule of law, liberty, and
security. 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.
So on this evening, I am full of hope, on a dark day, when it may
seem we are going to lose this case once again, I would like to have
faith that we can unite security and justice because we have already
done it. It is not a choice, one or the other. It can never be that.
That is a false choice and a false dichotomy. Justice and security is
what our forebears have given us, what our predecessors have struggled
with, and which we now must wrestle with ourselves. It is never
perfect. There is always one side maybe a bit more weighty than the
other, but it is our responsibility to try and strike that balance, to
keep us secure in the face of those who would do us great harm and to
do so at a time without giving up our rights and liberties. To do so is
to change the very nature of who we are as a people. To succumb to the
fears of those who would suggest that you have to make choices about
being more secure or being free, I don't believe that.
In fact, I think if we give up freedoms, we become far less secure
and far less safe. That is the judgment we must now make, whether we
can be secure and free and guarantee those liberties to go forward.
My father was the executive trial counsel at the Nuremberg trials in
1945 and 1946. I have never forgotten the example he set, as Justice
Robert Jackson said in the opening statement at the Nuremberg trials, a
statement, by the way, that my parents made us memorize as children
because it captured the essence of the Nuremberg trials. The rule of
law is what motivated those who insisted upon that trial. The
overwhelming majority of people did not want a trial. Why should you
spend the money giving these 21 defendants a lawyer? Fifty-five million
people had died at the hands of the Nazis and their allies; 6 million
Jews had been incinerated in the concentration camps; 5 million others
had the same fate befall them because of their political affiliation,
their ethnicity, their sexual orientation; 11 million people
incinerated; 45 million died at their hands. Why in the world would you
ever give them a trial?
Why not, as Winston Churchill suggested, just line them up and shoot
them? Just line them up and shoot them. They did not deserve civility.
But Robert Jackson; Henry Stimson, the Secretary of War under Franklin
Roosevelt--a Republican, I might add; the only one in Roosevelt's
Cabinet--Samuel Rosenman, a great speechwriter for Franklin Roosevelt;
Robert Jackson, a Supreme Court Justice, and a handful of others stood
up and said: No, that war was not about treasury or treasure or land,
it was about values and principles, and the principle of the rule of
law is something we stood for.
So despite all of the appetite for vengeance, we are not going to
give these defendants that which they gave to their victims. We are
going to prove the difference. We are going to give them that which
they never gave their victims. They are going to get a day in court.
They are going to live with the rule of law.
Robert Jackson, speaking to that Court, in the summer of 1945, said
the following, which I memorized years ago. Speaking about the Soviet
Union, the French, the British, and ourselves, he said the following:
That four great nations, flushed with victory and stung
with injury, stay the hand of vengeance and voluntarily
submit their captive enemies to the judgment of the law is
one of the most significant tributes that Power has ever paid
to Reason.
It is a remarkable sentence, and it captured the essence of
Nuremberg--the rule of law. From that experience, America led the way
in creating the structures in architecture that gave us almost 70 years
of global peace. The IMF, the World Bank, Bretton Woods, the expansion
of the United Nations, NATO--all of those institutions occurred because
of the moral high ground we achieved by insisting upon the rule of law.
It was Nuremberg, in many ways, that conjured up the image of who we
were as a people. Compare that with the words ``Guantanamo,'' ``Abu
Ghraib,'' ``renditions,'' ``torture,'' ``habeas corpus,'' ``walking
away from the Geneva Conventions.'' This is not who we are. Nuremberg
was who we are, not Guantanamo, not giving retroactive immunity where
the rule of law is being abused, or potentially being abused. That is
why we are here.
Each generation has been asked to defend these principles and values,
and each generation in its own way has done that. I believe our
generation can and must as well. Therefore, the challenge before us is
not a simple one, but an easy one, in my view; that is, to stand up for
this principle.
The world is not going to collapse, the sky is not going to fall if
some companies have to face some plaintiffs and explain why they
vacuumed up all their private information for more than 5 years. What
was the legal justification for that action? To grant retroactive
immunity would, in fact, do just that.
So what is the tribute that Power owes to Reason? That America stands
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 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 is due today as well. I know we
can find the strength to pay it. And if we cannot, we will have to
answer for it, I fear.
There is a famous military recruiting poster that comes to mind. A
man is sitting in an easy chair with his son
[[Page S6092]]
and daughter on his lap, after some future war has ended. His daughter
is asking him, ``What did you do in the war?'' And his face is shocked
and shamed because he knows he did nothing.
My little daughters, Grace and Christina, are 6 and 3. They are
growing up--I hope sound asleep at this hour, as I speak in the late
night hours here, but they are growing up in a time of two great
conflicts: one between our Nation and its enemies, and another between
what is best and worst in our American soul. And someday soon, I know I
am going to hear that question: What did you do at the time when this
conflict was emerging? What side did you take? I want more than
anything else, when that day comes, to give the right answer, that I
stood for the rule of law.
That question is coming to each and every one of us in our own way.
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 stories of a great nation--one that
threw down tyrants and oppressors for two centuries, one that rid the
world of Nazism and Soviet communism, one that proved that great
strength can serve great virtue, that right can truly make might.
And then they will read how, in the early years of the 21st century,
that nation could have lost its way. We do not have the power to strike
that chapter. But we cannot go back. We cannot un-destroy the CIA's
interrogation tapes. We cannot un-pass the Military Commissions Act. We
cannot un-speak Alberto Gonzales's testimony before the Congress. We
cannot un-torture innocent people. We, perhaps, sadly and shamefully,
cannot stop retroactive immunity. We cannot undo anything that has been
done in the last 6 years for the cause of lawlessness and fear. We
cannot block out that chapter. But we can begin the next chapter, even
this evening, even in the days to come, as we debate this issue. And
let its first words read: Finally, in the month of June of 2008, the
Senate of the United States--Democrats and Republicans--said: Enough.
Enough is enough.
I implore my colleagues to write it with me. I implore my colleagues
to vote against retroactive immunity and vote against cloture when that
opportunity arrives in the next day or so. I think it would be a
mistake to grant it. I think we can do better. I think we can reform
the law. But we ought not to have any decision be above the law, as is
the danger here.
Mr. President, I want to, if I can, share with my colleagues, and
those who may be listening to all this, some articles because their
eloquence is far greater than mine when they talk about the importance
of all of this, and they are worth noting and reading as we examine
this question before us.
There have been editorials and others that have addressed this issue.
There is an editorial in the New York Times from June 18, entitled:
``Mr. Bush v. the Bill of Rights.''
In the waning months of his tenure, President Bush and his
allies are once again trying to scare Congress into expanding
the president's powers to spy on Americans without a court
order.
This week, the White House and Democratic and Republican
leaders on Capitol Hill hope to announce a ``compromise'' on
a domestic spying bill. If they do, it will be presented as
an indispensable tool for protecting the nation's security
that still safeguards our civil liberties. The White House
will paint opponents as weak-kneed liberals who do not
understand and cannot stand up to the threat of terrorism.
The bill is not a compromise. The final details are being
worked out, but all indications are that many of its
provisions are both unnecessary and a threat to the Bill of
Rights. The White House and the Congressional Republicans who
support the bill have two real aims. They want to undermine
the power of the courts to review the legality of domestic
spying programs. And they want to give a legal shield to the
telecommunications companies that broke the law by helping
Mr. Bush carry out his warrantless wiretapping operation.
The Foreign Intelligence Surveillance act, or FISA,
requires that government to get a warrant to intercept
communications between anyone in this country and anyone
outside it. The 1978 law created a special court that has
approved all but a handful of the government's many thousands
of warrant requests.
Still, after Sept. 11, 2001, Mr. Bush bypassed the FISA
court and authorized the interception of international calls
and e-mail messages without a warrant. Then, when The Times
disclosed the operation in late 2005, Mr. Bush claimed that
FISA did not allow the United States to act quickly enough to
stop terrorists. That was nonsense. FISA always gave the
government the power to start listening and then get a
warrant--a grace period that has been extended since Sept 11.
More fundamental, Mr. Bush's powers do not supersede laws
passed by Congress or the constitution's protections against
unreasonable searches and seizures.
The ensuing debate did turn up an Internet-age problem with
FISA: It requires a warrant to eavesdrop on foreign
communications that go through American computers. There was
an easy fix, but when Congress made it last year, the White
House muscled in amendments that seriously diluted the
courts' ability to restrain the government from spying on its
own citizens.
That law expires on Aug. 3, and Mr. Bush is demanding even
more power to spy. He also wants immunity for the
telecommunications companies that provided the government
with Americans' private data without a warrant after Sept.
11.
Lawsuits against those companies are the best hope of
finding out the extent of Mr. Bush's lawless spying. But
Democratic leaders in Congress are reported to have agreed to
a phony compromise drafted by [one of our colleagues], the
Republican vice chairman of the Intelligence Committee.
Under the so-called compromise, the question of immunity
would be decided by federal district court--a concession by
Mr. Bond [our colleague from Missouri], who originally wanted
the FISA court, which meets in secret and is unsuited to the
task, to decide. What is unacceptable, though, is that the
district court would be instructed to decide based solely on
whether the Bush administration certifies that the companies
were told the spying was legal. If the aim is to allow a
court hearing on the president's spying, the lawsuits should
be allowed to proceed--and the courts should be able to
resolve them the way they resolve every other case.
Republicans, who complain about judges making laws from the
bench, should not be making judicial decision from Capitol
Hill.
This week, House and Senate leaders were trying to allay
the concerns of some lawmakers that approving the immunity
would be tantamount to retroactively declaring the spying
operation to have been legal. Those lawmakers are right.
Granting the corporations immunity would send that exact
message.
The new bill has other problems. It gives the government
too much leeway to acquire communications in the United
States without individual warrants or even a showing of
probable cause. It greatly reduces judicial review, and it
would remain in force for six years, which is too long.
If Congress cannot pass a clean bill that fixes the one
real problem with FISA, it should simply extend the temporary
authorization. At a minimum . . .
It talks about what other steps can be taken.
There are several other articles I want to share with colleagues, but
let me also say to my colleagues, we are in a postcloture environment
here on the housing bill. We will be in cloture until tomorrow evening
on the 30 hours required under the housing bill, unless some
intervening action is taken. I know we are supposed to consider voting
on cloture on this bill sometime tomorrow morning. I reserve the right
to use whatever vehicle is available to me. While I am upset we are not
dealing with the housing bill--I believe that is a priority on which
Americans expect something to be done. You have 8,400 people filing for
foreclosure every day in this country. It is a massive economic issue
that is crippling the livelihood and the future wealth and security of
too many American families. I would object to any unanimous consent
request to go to the FISA bill. If we do get to a cloture motion, I
will be urging my colleagues to vote against cloture, to send this bill
back to the Intelligence Committee, the Judiciary Committee, and craft
some reforms of FISA, but stay away from this retroactive immunity. It
is not needed. It is unnecessary. It is shameful it is even being
requested in this bill for all the reasons I have identified earlier.
Let me read, if I can, from the New Jersey Star-Ledger. Again, this
paper calls for rejecting the wiretap bill, as well. This editorial
says:
The House of Representatives is to vote today on a
wiretapping bill that would give some of America's biggest
and richest companies a get-out-of-jail card for breaking the
law and that also would help the government carry out
unsupervised snooping for years in the future.
But Verizon and other telecommunications companies should
not be rewarded with immunity against lawsuits for agreeing
to perform President Bush's illegal eavesdropping. They
should answer for their actions in court, just like any other
citizen.
And Congress should not gut the current law that says a
federal judge's review is essential to avoid the very abuses
of power that Bush's White House embraced.
[[Page S6093]]
The House ``compromise'' wiretapping bill is not a
compromise at all. It would give the telecommunications
companies absolute immunity from the suits pending against
them for wiretapping if they can simply show that the Bush
administration told them at the time that the snooping was
legal. Which everyone agrees the administration did indeed
do.
It is not a debate. They sent letters. The question is, were the
letters and the documentation a legal justification? We already know
they sent the letters, so all they are providing for us in here is
tantamount to acknowledging what we already know occurred. What we are
not getting to is the legal conclusion that those documents not seeking
the warrants of the FISA court was a legal justification for their
actions. It does not take a legal scholar to see the danger in this
approach. It means that the law becomes whatever the President wants it
to be, never mind what the statutes or even the Constitution may say.
That is why the courts exist. That is why you have Federal judges to
make those determinations.
This editorial goes on to say:
The President also very much wants the other major part of
the new wiretapping law, the section that amounts to an
aggressive broadening of federal surveillance powers. The
provisions would emasculate the ability of federal judges to
review wiretapping orders, especially if the orders were for
a general information ``dragnet'' as opposed to targeting
specific persons.
Snooping government agents would be officially free to plug
into phone and data lines and copy and review untold millions
of calls and e-mails, all without serious adult supervision.
Effective checks and balances in government this is not.
Bush and Attorney General Michael Mukasey want the new
law--
The editorial goes on to say--
and they want it now. House Members--
Talking about the House-passed bill--
should not give it to them. Government wiretapping is now
operating under a series of interim laws set to expire in
early August.
There is no evidence that these interim rules are too
anemic to protect the Nation for a while longer. Congress
should extend them. If the wiretapping law needs major
revisions, these can be done under a new President.
One who, unlike Bush, didn't begin a secret, illegal
wiretapping months before September 11, 2001.
This is from the Denver Post. I wonder why I chose that one to read
to the Presiding Officer, my good friend and colleague from Denver, CO.
I suspect he may have seen this one himself, so I apologize if I am
reading an editorial he has already probably read himself. This is
dated June 5. ``Another Dose of Courage Needed on FISA'' is the title.
Congress once again is discussing a compromise on a long-
stalled rewrite of the Foreign Intelligence Surveillance Act
with the idea of getting something passed before its August
recess.
The White House assuredly will play the national security
card again as it seeks retroactive immunity for telecoms that
give in to demands for information under the President's
warrantless wiretapping program.
We hope Congress stands firm as it did in February. Frame
it any way you want, but the issue is accountability.
Proponents are making a last-ditch effort--
The Denver Post says--
to squelch some 40 lawsuits that could bear witness to the
breadth of Bush administration spying that took place outside
the auspices of FISA.
Congress must not capitulate on this key point.
It's important to keep in mind how this country came to
have FISA. Enacted in 1978, FISA was a response to widespread
government abuse of wiretaps in the name of national
security. The act set rules for government spying on foreign
powers on their agents.
A secret FISA Court hears government eavesdropping requests
and almost without exception approves them. The
administration can even wiretap without a FISA warrant and
get one later.
After the 9/11 attacks, President Bush decided to do an end
run around the FISA Court, shifting approval for wiretaps
from the judiciary to the executive branch. That program was
secret until 2005 when the New York Times exposed its
existence.
As I pointed out earlier, conceivably it would still be operating
today but for that revealing by the whistleblower.
Last year, the administration employed fear mongering and
convinced Congress--
The Denver Post says--
to legitimize the program through the Protect America Act, a
temporary provision that expired this year.
The battle now is over a permanent extension, the
centerpiece of which would be lawsuit immunity for the
telecommunication companies that cooperated with the
warrantless spying program.
Administration officials say they are very concerned about
getting cooperation from the communications companies unless
the companies have immunity.
We find it hard to believe that these telecoms would refuse
to comply with the FISA Court order. FISA has been in
operation for 30 years and that seems to have not been a
problem in the past.
Let me just cut in here and point out that over the past 25 years, as
I noted earlier, the FISA Courts have compelled companies to provide
information and simultaneously granted them immunity when doing so. So
this idea that we hope they will willingly cooperate--the courts have
the power to compel cooperation when we want surveillance of
individuals that could be doing us harm. So the argument that if we
don't grant immunity they might not show up again when we ask them to
provide surveillance that we need in order to guarantee our security--
we hope they will cooperate, but if they don't, we have the ability to
compel cooperation.
Back to the editorial. It concludes by saying:
It's also important to keep in mind that the Federal courts
where these telecom lawsuits are being heard can--and have--
dismissed some actions on the grounds that they could
endanger national security. So it's not as if there is no
protection at work.
The last time immunity was debated in Congress, House
Democrats held firm, saying that they thought the
administration's modifications would amount to a suspension
of the Constitution. We hope they have the same courage of
their convictions this time around.
I applaud the Denver Post for its brilliant and thoughtful editorial
in that regard.
This is an editorial from the Register-Guard in Eugene, OR, so we get
the breadth of this across the country. This one is entitled ``Sinking
the Boat: House Approves Flawed Electronic Surveillance Bill,'' June
24, 2008.
Congressional leaders have crafted a deeply flawed bill on
electronic eavesdropping, caving once again to White House
warnings that failure to give the executive branch broad
license to spy on U.S. citizens without a warrant would make
it harder to protect Americans from terrorists.
In one of the most disappointing votes of the 110th
Congress, the House on Friday approved a compromise over a
contentious intelligence surveillance bill. The House measure
would allow the Federal Government to intercept international
telephone calls or e-mails without prior court approval if
the executive branch claims it is necessary in an emergency.
It would also grant de facto immunity to telecommunications
companies that cooperated in the administration's secret and
blatantly unconstitutional surveillance program after the
September 11 attacks.
Congressman Peter DeFazio deserves credit for voting, along
with 127 other Democrats, against the House bill. ``We do not
trample over the U.S. Constitution in order to protect
Americans from terrorism--that is akin to sinking the boat so
the enemy can't sink it,'' the Oregon Democrat said.
After September 11, President Bush authorized the National
Security Agency to monitor, without the prior court approval
required by the Constitution, e-mails and phone conversations
between suspected terrorists of United States residents.
Called the Terrorist Surveillance Program, the initiative
ignored the 1978 Foreign Intelligence Surveillance Act which
required a special Federal court to authorize electronic
spying on Americans.
The editorial goes on to say:
The Bush administration grudgingly accepted judicial
oversight of the program only after its existence was leaked
to the media and Congress howled in outrage. That outrage has
since been muffled by a White House campaign intended to
scare Americans and to allow the administration to further
expand the chief executive's powers and erode civil
liberties. And, oh, yes, to ensure that no one is held
accountable for the illegal wiretapping that Bush ordered
after September 11.
The House bill is a modest improvement over the earlier
versions. While it unwisely allows the administration to
authorize monitoring of international calls or e-mails, it
requires the secret Foreign Intelligence Surveillance Court
to review and enforce protections for U.S. residents, and it
bars surveillance until those procedures are approved
except in ``exigent circumstances.''
The Senate should improve the House bill by requiring court
supervision of any surveillance that can involve American
citizens or others in the United States. That's a
constitutional red line the Bush administration--or any
other--should not be allowed to cross.
The Senate should also make certain that the courts are
allowed to decide whether telecommunication companies
violated the
[[Page S6094]]
law by handing over data to the government over the past five
years without a court order. The Senate should also demand a
full accounting to Congress of all surveillance conducted
since September 11--accounting the White House has refused to
provide, telling lawmakers and the American public to instead
``trust us'' with their freedoms.
Congress still has a chance to make certain that the
Federal Government Surveillance Program complies with the
rule of law. History would suggest the failure to do so could
leave the door open to lawless behavior as long as the
current President remains in office--
And, I would argue, set a precedent for future administrations where
that could occur as well.
Again, let me suggest here that what we are talking about is not the
choice between security and liberty. This is not an issue that ought to
divide people based on our party affiliation or how one is
characterized and where they sit in the political spectrum. This is an
issue that goes to the heart of who we are. It is talking about the
rule of law and the Constitution. Everyone here takes an oath of office
to protect and defend our country and to protect the Constitution.
Certainly that is what this ought to involve.
Are the courts going to make a determination about the legality of
this effort? Again, I don't know of another instance in our Nation's
history where for 5 long years, 17 companies were allowed to virtually
sweep up every phone call, every e-mail, every fax, every text message
that was sent by every citizen of this country, and that is exactly
what happened and would still be ongoing if it hadn't been revealed.
Do we require that there be some justification as to whether this was
legally occurring? That ought not to be a matter of political choice.
That ought to be a matter for the courts. That is why we established
the third branch of government--the judiciary--to determine the
constitutionality and legality of actions taken by the executive or
legislative branches. We are shortcutting in the legislative branch, at
the request of the executive, the ability of that branch to make that
determination. We are sanctioning, in effect. We are closing the door,
never to know why this happened, who ordered it, why did they avoid
FISA, what was behind their thinking. That is a dangerous step for us
to take.
That is the only case I am making. I have my doubts, as I said, about
the legality of it, but that is just one Senator. I have the right to
certainly have my doubts about certain actions. I don't have the right
to determine the legality of it. I am a Senator, I am not a Federal
judge. I don't sit in that third branch, I sit in the second branch. I
sit in the Congress of the United States. It is my job here to stand up
and see to it that we don't take actions that would deprive that
branch--the legal branch, the judicial branch--from asserting its
rights under our Constitution--exactly what the Founders intended.
So while I know there are those who are going to argue and make the
case that those of us who stand up here to defend the rule of law,
somehow we are weak-kneed when it comes to terrorism, that is hardly
the case. I don't want to give terrorists a greater victory. As
profoundly sad, as tragic, and as violent as the attack was on 9/11
that destroyed so much and showed us how dangerous the world is today,
to grant them the power--those terrorists--to allow them to deprive us
of our liberties is to grant them a victory even greater than they
achieved that day. It must be our common determination to see to it
that we stand up and not allow these rights and these liberties we
enjoy as citizens to be eroded at our own hand.
Let's say to terrorists around the world: We will fight you and
defeat you as you try to do us and others great harm, but you will not
bring down the pillars of our constitutional form of government and the
rule of law. That is what this is all about, while it is argued and we
are told that we have to do this and if we don't do it, that somehow we
are succumbing to those terrorists who wish to do us great physical
harm.
Let me, if I can, sort of wrap up because I know I am taking a little
bit of time. I want to leave some time to argue my housing bill. I am
consuming the time on my housing bill to do this, but I want people to
understand, at least from my perspective, why this is a dangerous
conclusion, why we ought to vote against cloture, and why I am going to
use my power as a Senator to object to going to that cloture vote, at
least as long as a cloture vote exists on dealing with the housing
legislation.
I think retroactive immunity is a disgrace. In the last months, I
believe we proved that beyond any doubt whatsoever. As I said, I
believe it is more disgraceful in all that it represents. It is the
mindset that the Church Committee summed up so eloquently three decades
ago. As I read these words--they are no longer with us. A lot of these
Members have long since left us, not only from this Chamber but who
have since passed away. But it is worthwhile for us to read their
words, these Democrats and Republicans. There were those who suggested
somehow they were weak-kneed when it came to giving the President the
power to protect our national security. But listen to their words of
three decades ago:
The view that the traditional American principles of
justice and fair play have no place in our struggle against
the enemies of freedom, that view created the Nixonian
secrecy of the 1970s.
The Church committee wrote those words in part as a rebuke to our
predecessors in this Chamber who for years allowed secrecy and
executive abuses to slide. But today those words take on new meaning.
Today, they rebuke us, in a way. Today they shame us for a lack of
faith that we can, at the same time, keep our country safe and our
Constitution whole.
As I said before, when the 21st century version of the Church
committee convenes to investigate the abuses of the past years, how
will we be judged? When it reads through the records of our debates--
not if, Mr. President, but when--what will they find? When the
President asked us to repudiate the Geneva Conventions and strip away
the rights of habeas corpus, how did we respond? What was our Congress?
What did we say about that? When stories of secret prisons and
outsourced torture became impossible to deny, what did that Congress do
in 2008 and 2007? In June of 2008 when we were asked to put
corporations explicitly outside the law and accept at face value the
argument that some are literally too rich to be sued, how did that
Congress, how did that Senate vote on that matter?
All of these questions are coming to us, Mr. President. All of them
and more. And in the quiet of his or her own conscience, each Senator
knows what the answers are.
Remember, this is about more than a few telephone calls, a few
companies, or a few lawsuits. If the supporters of retroactive immunity
keep this argument a technical one, they will win. A technical argument
obscures the defining question: the rule of law or the rule of men?
That question never goes away. As long as there are free societies,
generations of leaders will struggle mightily to answer it. Each
generation must ascertain an answer for itself. Just because our
Founders answered it correctly doesn't mean we are bound by their
choice. In that, as in all decisions, we are entirely free.
The burden falls not on history but on each one of us--the 100 of us
who serve in this remarkable Chamber. But we can take counsel, listen
to those who came before us, who made the right choice even when our
Nation's survival was at risk. They knew the rule of law was far more
rooted in our character than any one man's lawlessness. From the
beginning, they advised us to fight that lawlessness whenever we found
it. At the Constitutional Convention, James Madison said:
The means of defense against foreign danger historically
have become the instruments of tyranny at home.
He also said:
I believe there are more instances of the abridgement of
the freedom of the people by gradual and silent encroachments
of those in power than by violent and sudden assertion.
As long as we are temporary custodians of the Constitution, as we
are, we have a duty to guard against those gradual and silent
encroachments. That is exactly what this is. It is a gradual and silent
encroachment. It doesn't come in a burst, it comes slowly. Our Founders
knew these threats were coming. They could predict, persuade, and warn,
but when it comes time to stand up against those threats in our own
time, they cannot act for us. They can only teach us, they
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can warn us, they can remind us that they would come. And they have.
They are here. They are before us. They cannot act for us. The choice
is ours and ours alone.
Tomorrow or the following day, when we are asked to vote on this, the
choice will be ours. We have been warned and cautioned by history. The
decision now rests with each and every one of us to decide whether we
have listened to them and not only answer them but provide the answer
for generations to come, as generations before us have answered that
question. May we rise to that moment, Mr. President, and defeat this
legislation. May we reject this retroactive immunity for a handful of
companies so that we may determine whether their actions were legal or
whether they were above the law or whether they were the rule of law or
the rule of men. That is the important choice we will have to make.
I yield the floor.
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