[Congressional Record: April 23, 2009 (Senate)]
[Page S4678-S4679]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. SPECTER (for himself and Mr. Whitehouse):
S. 876. A bill to provide for the substitution of the United States
in certain civil actions relating to electronic service providers and
FISA; to the Committee on the Judiciary.
Mr. SPECTER. Mr. President, I have sought recognition to reintroduce
legislation that would substitute the United States in the place of
electronic communications service providers who were sued for violating
the Foreign Intelligence Surveillance Act, FISA, and other statutory
and constitutional provisions.
FISA reform legislation passed the Senate in February and July of
2008, both times by a vote of 68 to 29, before being signed into law by
President Bush on July 10, 2008. This legislation made many necessary
changes to FISA to enhance our intelligence collection capabilities,
but it also included a controversial provision giving retroactive
immunity to telecommunications companies for their alleged cooperation
with the warrantless surveillance program authorized by the President
after September 11, 2001. The legislation stripped the Federal courts
of jurisdiction to decide more than 40 consolidated cases involving
claims of violations of FISA and related statutes, even though most
Members of Congress had not been briefed on the program, and despite
the fact that the judge handling the cases, Chief Judge Vaughn Walker
of the Northern District of California, had questioned the legality of
the program in a related opinion issued just days before the final
Senate debate.
During the February and July FISA debates, I sought to keep the
courts open as a way to check executive branch excesses. Through both a
stand-alone bill, S. 2402, considered by the Senate Judiciary Committee
and an amendment, SA 3927 to S. 2248, offered during the Senate's
February debate on the FISA reform bill, I proposed to substitute the
U.S. Government for the telephone companies facing lawsuits for their
alleged cooperation with the Terrorist Surveillance Program, TSP. Just
as in 2008, I propose legislation that would place the Government in
the shoes of the telephone companies, with the same defenses no more
and no less. Thus, under the bill, plaintiffs get their day in court
and may hold the Government accountable for unlawful activity, if any,
related to the surveillance program. At the same time, the carriers
themselves avoid liability stemming from their efforts to be good
citizens.
I fought hard in 2008 to keep the courts open on the question of the
TSP, and urged my colleagues to improve the FISA bill. I continue that
fight today with a new Administration in office. During the prior floor
debate I said: ``Although I am prepared to stomach this bill, if I
must, I am not yet ready to concede that the debate is over. Contrary
to the conventional wisdom, I don't believe it is too late to make this
bill better.''
As I observed on the floor last year, it is necessary for Congress to
support intelligence collection efforts because of the continuing
terrorist threat. No one wants to be blamed for another 9-11. Indeed,
as I acknowledged during the debate, my own briefings on the telephone
companies' cooperation with the Government convinced me of the
program's value. Nevertheless, I tried to impress upon my colleagues
the importance and historical context of our actions. I said:
We are dealing here with a matter that is of historic
importance. I believe that years from now, historians will
look back on this period from 9/11 to the present as the
greatest expansion of Executive authority in history--
unchecked expansion of authority. The President disregards
the National Security Act of 1947 mandating notice to the
Intelligence Committee; he doesn't do it. The President takes
legislation that is presented by Congress and he signs it,
and then he issues a signing statement disagreeing with key
provisions. There is nothing Congress can do about it.
The Supreme Court of the United States has gone absent
without leave on the issue, in my legal opinion. When the
Detroit Federal judge found the terrorist surveillance
program unconstitutional, it was [reversed] by the Sixth
Circuit on a 2-to-1 opinion on grounds of lack of standing.
Then the Supreme Court refused to review the case. But the
very formidable dissenting opinion laid out all of the
grounds where there was ample basis to grant standing. Now we
have Chief Judge Walker declaring the [surveillance illegal].
The Congress ought to let the courts fulfill their
constitutional function.
It is not too late to provide for judicial review of controversial
post-9/11 intelligence surveillance activities. The cases before Judge
Vaughn Walker are still pending and, even if he were to dismiss them
under the statutory defenses dubbed retroactive immunity, Congress can
and should permit the cases to be refiled against the Government,
standing in the shoes of the carriers.
This legislation substitutes the U.S. in place of any electronic
communication service provider who provided communications in
connection with an intelligence activity that was: authorized by the
President between September 11, 2001, and January 17, 2007; and
designed to detect or prevent a terrorist attack against the U.S. In
order for substitution to apply, the electronic communications service
provider must have received a written request from the Attorney General
or the head of an element of the intelligence community indicating that
the activity was authorized by the President and determined to be
lawful. If the provider assisted the Government beyond what was
requested in writing, this legislation will provide no relief to the
service provider.
The legislation also establishes a limited waiver of sovereign
immunity that only applies to ``covered civil actions'' essentially,
the 40 cases currently pending before the U.S. District Court in the
Northern District of California. This is to prevent the Government from
asserting immunity in the event it is substituted for the current
defendants.
We can still pass legislation substituting the Government for the
various telecom defendants and have a judicial assessment of the
constitutionality and legality of the controversial surveillance. Such
a judicial assessment is necessary to resolve the clash between the
Executive and Legislative branches over the legality and
constitutionality of the surveillance program.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 876
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. AMENDMENT TO FISA.
Title III of the Foreign Intelligence Surveillance Act of
1978 Amendments Act of 2008 (Public Law 110-261) is amended
by inserting at the end the following:
``SEC. 302. SUBSTITUTION OF THE UNITED STATES IN CERTAIN
ACTIONS.
``(a) In General.--
``(1) Certification.--Notwithstanding any other provision
of law, a Federal or State court shall substitute the United
States for an electronic communication service provider with
respect to any claim in a covered civil action as provided in
this subsection, if the Attorney General certifies to that
court that--
``(A) with respect to that claim, the assistance alleged to
have been provided by the electronic communication service
provider was--
``(i) provided in connection with an intelligence activity
involving communications that was--
``(I) authorized by the President during the period
beginning on September 11, 2001, and ending on January 17,
2007; and
``(II) designed to detect or prevent a terrorist attack, or
activities in preparation for a terrorist attack, against the
United States; and
``(ii) described in a written request or directive from the
Attorney General or the
[[Page S4679]]
head of an element of the intelligence community (or the
deputy of such person) to the electronic communication
service provider indicating that the activity was--
``(I) authorized by the President; and
``(II) determined to be lawful; or
``(B) the electronic communication service provider did not
provide the alleged assistance.
``(2) Substitution.--
``(A) In general.--Except as provided in subparagraph (B),
and subject to subparagraph (C), upon receiving a
certification under paragraph (1), a Federal or State court
shall--
``(i) substitute the United States for the electronic
communication service provider as the defendant as to all
claims designated by the Attorney General in that
certification, consistent with the procedures under rule
25(c) of the Federal Rules of Civil Procedure, as if the
United States were a party to whom the interest of the
electronic communication service provider in the litigation
had been transferred; and
``(ii) as to that electronic communication service
provider--
``(I) dismiss all claims designated by the Attorney General
in that certification; and
``(II) enter a final judgment relating to those claims.
``(B) Continuation of certain claims.--If a certification
by the Attorney General under paragraph (1) states that not
all of the alleged assistance was provided under a written
request or directive described in paragraph (1)(A)(ii), the
electronic communication service provider shall remain as a
defendant.
``(C) Determination.--
``(i) In general.--Substitution under subparagraph (A)
shall proceed only after a determination by the Foreign
Intelligence Surveillance Court that--
``(I) the written request or directive from the Attorney
General or the head of an element of the intelligence
community (or the deputy of such person) to the electronic
communication service provider under paragraph (1)(A)(ii)
complied with section 2511(2)(a)(ii)(B) of title 18, United
States Code;
``(II) the assistance alleged to have been provided was
undertaken by the electronic communication service provider
acting in good faith and pursuant to an objectively
reasonable belief that compliance with the written request or
directive under paragraph (1)(A)(ii) was permitted by law; or
``(III) the electronic communication service provider did
not provide the alleged assistance.
``(ii) Certification.--If the Attorney General submits a
certification under paragraph (1), the court to which that
certification is submitted shall--
``(I) immediately certify the questions described in clause
(i) to the Foreign Intelligence Surveillance Court; and
``(II) stay further proceedings in the relevant litigation,
pending the determination of the Foreign Intelligence
Surveillance Court.
``(iii) Participation of parties.--In reviewing a
certification and making a determination under clause (i),
the Foreign Intelligence Surveillance Court shall permit any
plaintiff and any defendant in the applicable covered civil
action to appear before the Foreign Intelligence Surveillance
Court pursuant to section 103 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1803).
``(iv) Declarations.--If the Attorney General files a
declaration under section 1746 of title 28, United States
Code, that disclosure of a determination made pursuant to
clause (i) would harm the national security of the United
States, the Foreign Intelligence Surveillance Court shall
limit any public disclosure concerning such determination,
including any public order following such an ex parte review,
to a statement that the conditions of clause (i) have or have
not been met, without disclosing the basis for the
determination.
``(D) Special rule.--Notwithstanding any other provision of
this Act--
``(i) in any matter in which the Foreign Intelligence
Surveillance Court denies dismissal on grounds that the
statutory defenses provided in title VIII of the Foreign
Intelligence Surveillance Act of 1978 are unconstitutional,
the Attorney General shall be substituted pursuant to this
paragraph; and
``(ii) if a claim is dismissed pursuant to title VIII of
the Foreign Intelligence Surveillance Act of 1978 prior to
date of enactment of this section, the claim against the
United States shall be tolled for the period during which the
claim was pending and may be refilled against the United
States pursuant to rule 60(b) of the Federal Rules of Civil
Procedure after the date of enactment of this section.
``(3) Procedures.--
``(A) Tort claims.--Upon a substitution under paragraph
(2), for any tort claim--
``(i) the claim shall be deemed to have been filed under
section 1346(b) of title 28, United States Code, except that
sections 2401(b), 2675, and 2680(a) of title 28, United
States Code, shall not apply; and
``(ii) the claim shall be deemed timely filed against the
United States if it was timely filed against the electronic
communication service provider.
``(B) Constitutional and statutory claims.--Upon a
substitution under paragraph (2), for any claim under the
Constitution of the United States or any Federal statute--
``(i) the claim shall be deemed to have been filed against
the United States under section 1331 of title 28, United
States Code;
``(ii) with respect to any claim under a Federal statute
that does not provide a cause of action against the United
States, the plaintiff shall be permitted to amend such claim
to substitute, as appropriate, a cause of action under--
``(I) section 704 of title 5, United States Code (commonly
known as the Administrative Procedure Act);
``(II) section 2712 of title 18, United States Code; or
``(III) section 110 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1810);
``(iii) the statutes of limitation applicable to the causes
of action identified in clause (ii) shall apply to any
amended claim under that clause subject to the tolling
requirements of paragraph (2)(D)(ii), and any such cause of
action shall be deemed timely filed if any Federal statutory
cause of action against the electronic communication service
provider was timely filed; and
``(iv) for any amended claim under clause (ii) the United
States shall be deemed a proper defendant under any statutes
described in that clause, and any plaintiff that had standing
to proceed against the original defendant shall be deemed an
aggrieved party for purposes of proceeding under section 2712
of title 18, United States Code, or section 110 of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1810).
``(C) Discovery.--
``(i) In general.--In a covered civil action in which the
United States is substituted as party-defendant under
paragraph (2), any plaintiff may serve third-party discovery
requests to any electronic communications service provider as
to which all claims are dismissed.
``(ii) Binding the government.--If a plaintiff in a covered
civil action serves deposition notices under rule 30(b)(6) of
the Federal Rules of Civil Procedure or requests for
admission under rule 36 of the Federal Rules of Civil
Procedure upon an electronic communications service provider
as to which all claims were dismissed, the electronic
communications service provider shall be deemed a party-
defendant for purposes rule 30(b)(6) or rule 36 and its
answers and admissions shall be deemed binding upon the
Government.
``(b) Certifications.--
``(1) In general.--For purposes of substitution proceedings
under this section--
``(A) a certification under subsection (a) may be provided
and reviewed in camera, ex parte, and under seal; and
``(B) for any certification provided and reviewed as
described in subparagraph (A), the court shall not disclose
or cause the disclosure of its contents.
``(2) Nondelegation.--The authority and duties of the
Attorney General under this section shall be performed by the
Attorney General or a designee in a position not lower than
the Deputy Attorney General.
``(c) Sovereign Immunity.--This section, including any
Federal statute cited in this section that operates as a
waiver of sovereign immunity, constitute the sole waiver of
sovereign immunity with respect to any covered civil action.
``(d) Civil Actions in State Court.--For purposes of
section 1441 of title 28, United States Code, any covered
civil action that is brought in a State court or
administrative or regulatory bodies shall be deemed to arise
under the Constitution or laws of the United States and shall
be removable under that section.
``(e) Rule of Construction.--Except as expressly provided
in this section, nothing in this section may be construed to
limit any immunity, privilege, or defense under any other
provision of law, including any privilege, immunity, or
defense that would otherwise have been available to the
United States absent its substitution as party-defendant or
had the United States been the named defendant.
``(f) Effective Date and Application.--This section shall
apply to any covered civil action pending on or filed after
the date of enactment of this section.''.
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