FISA Bill Fails To Hold Bush, Telecoms Accountable

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Illegal Wiretapping Program Continues…

Ad 2: Well, that’s it. They passed it. We’ll have a full story and a breakdown of the vote later…

Ad 1: All three amendment votes failed, so Senators will now go to the funeral of racist, conservative Senator Jesse Helms. They will return this afternoon about 4 p.m. to vote on the bipartisan capitulation bill. Will some blogger in DC find and crash that telecom lobbyist party tonight? It won’t occur to the mainstream media to do it…

Senate Judiciary Committee Chairman Patrick Leah (D-Vt.) expressed his support today for an amendment to the FISA Amendments Act of 2008 to strike provisions in the bill that would grant retroactive immunity to telephone companies that participated in the Bush administration’s warrantless wiretapping program.

Leahy is a cosponsor of an amendment to strike Title II of the bill, which would provide for the dismissal of lawsuits brought against the telephone companies, provided that the Attorney General certifies that the government requested the surveillance and indicated that it had been ‘determined to be lawful.’

Leahy has joined Sen. Chris Dodd (D-Conn.) and Sen. Russ Feingold (D-Wis.) in offering the amendment. Republican Senator Arlene Specter also spoke against the bill on the Senate floor this morning, although indications are that the bill will pass later today with the silence of Senator Hillary Clinton and Senator Barack Obama, the Democratic Party’s nominee for president. Senator John McCain, the Republican Party’s candidate for president.

The Senate continued the debate on the FISA Amendments Act of 2008 into Wednesday morning. Votes on the Dodd-Feingold-Leahy amendment and on two additional amendments are expected around noon.

Statement Of Senator Patrick Leahy

I strongly oppose the blanket grant of immunity contained in this bill. I urge Senators to reject this ill-advised legislative effort to engineer specific outcomes in on-going Federal judicial proceedings.

One way to cure the problem with the bill is to adopt the Dodd-Feingold-Leahy amendment to strike Title II from the bill. This will strike the retroactive immunity provisions and can lead to accountability for those who violated Americans’ rights and violated the law. Striking this title will send a strong message that no one stands above the law in the United States.

The administration circumvented the law by conducting warrantless surveillance of Americans for more than five years. They got caught. The press reported this illegal conduct in late-2005. Had it not done so, this unlawful surveillance may still be going on today.

When the public found out that the government had been spying on the American people outside of FISA for years, the government and the providers were sued by citizens who believed that their privacy rights were violated. But this is why the Founders created a system of Federal courts through the Constitution – so people can assert their rights before a fair and neutral tribunal, without interference from the other branches of government.

Title II of this bill would effectively terminate these lawsuits. It seeks to reduce the role of the court to a rubber stamp. So long as the Attorney General certifies that the government requested the surveillance and indicated that it had been “determined to be lawful,” the cases are to be dismissed and everybody is off the hook. That is not a meaningful judicial inquiry. That doesn’t give the plaintiffs their day in court. It is not just a heavy thumb on the scales of justice, but a whole hand and arm, and I cannot support it.

If we look at the publicly-available information about the President’s program, it becomes clear that Title II is designed to tank these lawsuits, pure and simple, and allow for the administration to avoid accountability. The Senate Intelligence Committee said in a report last fall that the providers received letters from the Attorney General stating that the activities had been “authorized by the President” and “determined to be lawful.” Guess what? These are precisely the “magic” words that will retroactively immunize the providers under Title II of this bill. So the fix is in. The bill is rigged, based on what we already know, to ensure that the providers get immunity and the cases get dismissed.

So what if Americans’ rights were violated. So what if statutes were violated. So what if those privacy protecting statutes provide for damages. This bill makes our Federal courts the handmaidens to a cover-up and it is wrong. Make no mistake: If Title II becomes law there will be no accountability for this administration’s actions in a court of law. We would take away the only viable avenue for Americans to seek redress for harms to their privacy and liberties.

Those who claim that American citizens can still pursue their privacy claims against the government know that sovereign immunity is a roadblock. They know that cases against the government have been dismissed for lack of standing. They know about the government’s ability to assert the state secrets doctrine and various other legal defenses and protections for government officials. They know these suits will go nowhere. They know and it is wrong for them to suggest otherwise. This is a red herring if there ever was one.

The report of the Select Committee on Intelligence in connection with its earlier version of the bill that also included retroactive immunity is telling. The Committee wrote: “The Committee does not intend for this section to apply to, or in any way affect, pending or future suits against the Government as to the legality of the President’s program.” And later wrote: “Section 202 makes no assessment about the legality of the President’s program.” But neither that bill nor this one makes any allowance for such suits against the government to proceed to a decision on the merits. That is precisely what is lacking in this measure, an avenue to obtain judicial review and accountability. Those who support retroactive immunity for the telecommunication carriers and dismissal of the suits against them without providing an effective avenue to challenge the program or obtain judicial review of its legality support unaccountability, pure and simple.

In fact the case that did proceed to decision in the Federal court in Michigan was appealed by the government, vacated and dismissed for lack of “standing.” So the judicial decision on the merits that the President’s program of warrantless wiretapping of Americans was a violation of law and the Constitution was effectively wiped from the books.

I note, again, that the proponents of this retroactive immunity have not and cannot say that the administration acted lawfully. It did not.

Even if one believes that the telephone companies merit protection, there is simply no good reason why Congress must act now to deal with the issue of the on-going lawsuits against providers. The claim that these lawsuits will somehow “bankrupt” the providers is belied by the record demonstrating the financial health of these companies today despite the on-going litigation. Even the most alarmist critics of the lawsuits acknowledge that it would be years, and probably at least two trips to the U.S. Supreme Court, before there could be any enforceable final judgments.

If there is such a risk, what does that say? It says that there were violations and that people’s rights were violated. I have said before that I would support the government stepping into the shoes of these defendants if we want to protect them. But we should not protect them at the cost of all accountability and the cost of never getting a judicial determination on the merits of the cases whether the government violated the law.

I believe the rule of law is important. I trust our courts to handle even the most difficult and sensitive disputes. That is the courts’ role in our constitutional scheme, nor ours. Title II of this bill would have Congress decide these cases by legislative fiat. If we do this we will diminish our Federal judiciary, and we will risk selling out large numbers of Americans whose fundamental rights may have been violated. It is unwise, it is unfair and it is unnecessary.

I urge Senators to support the Dodd-Feingold-Leahy amendment to strike retroactive immunity from this bill.

Remarks of U.S. Senator Russ Feingold

Mr. President, I strongly support Senator Dodd’s amendment to strike the immunity provision from this bill, and I want to thank the Senator from Connecticut for his leadership on this issue. Both earlier this year when the Senate first considered FISA legislation and again this time around, he has demonstrated tremendous resolve on this issue, and I have been proud to work with him.

Now, Mr. President, some have tried to suggest that the bill before us will leave it up to the courts to decide whether or not to give retroactive immunity to the companies that allegedly participated in the President’s illegal wiretapping program. Make no mistake – this bill will result in immunity being granted, because it sets up a rigged process with only one possible outcome.

Under the terms of this bill, a federal district court would evaluate whether there is substantial evidence that a company received “a written request or directive … 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.”

But, Mr. President, we already know from the report of the Senate Intelligence Committee that was issued last fall that the companies received exactly such a request or directive. That is already public information. So under the terms of this proposal, the court’s decision would be predetermined.

As a practical matter, that means that regardless of how much information the court is permitted to review, what standard of review is employed, how open the proceedings are, and what role the plaintiffs are permitted to play, the court will essentially be required to grant immunity under this bill.

Now, proponents will argue that the plaintiffs in the lawsuits against the companies can participate in briefing to the court. This is true, but they are not allowed access to any classified information. Talk about fighting with both hands tied behind your back. Mr. President, the administration has restricted information about this illegal wiretapping program so much that roughly 70 members of this chamber don’t even have access to the basic facts about what happened. So let’s not pretend that the plaintiffs will be able to participate in any meaningful way in these proceedings — in which Congress has made sure that their claims will be dismissed.

This result is extremely disappointing. It is entirely unnecessary and unjustified, and it will profoundly undermine the rule of law in this country. I cannot comprehend why Congress would take this action in the waning months of an administration that has consistently shown contempt for the rule of law – perhaps most notably in the illegal warrantless wiretapping program it set up in secret.

Mr. President, we hear people argue that telecom companies should not be penalized for allegedly taking part in this illegal program. What you don’t hear is that current law already provides immunity from lawsuits for companies that cooperate with the government’s request for assistance, as long as they receive either a court order or a certification from the Attorney General that no court order is needed and the request meets all statutory requirements. But if requests are not properly documented, FISA instructs the telephone companies to refuse the government’s request, and subjects them to liability if they instead decide to cooperate.

When Congress passed FISA three decades ago, in the wake of the extensive, well-documented wiretapping abuses of the 1960s and 1970s, it decided that, in the future, telephone companies should not simply assume that any government request for assistance to conduct electronic surveillance was appropriate. It was clear that some checks needed to be in place to prevent future abuses of this incredibly intrusive power – the power to listen in on people’s personal conversations.

At the same time, however, Congress did not want to saddle telephone companies with the responsibility of determining whether the government’s request for assistance was legitimate or not.

So Congress devised a system that would take the guesswork out of it completely. Under that system, which is still in place today, the companies’ legal obligations and liability depend entirely on whether the government has presented the company with a court order or a certification stating that certain basic requirements have been met. If the proper documentation is submitted, the company must cooperate with the request and is immune from liability. If the proper documentation has not been submitted, the company must refuse the government’s request, or be subject to possible liability in the courts.

This framework, which has been in place for 30 years, protects companies that comply with legitimate government requests while also protecting the privacy of Americans’ communications from illegitimate snooping.

Granting companies that allegedly cooperated with an illegal program the new form of retroactive immunity that is in this bill undermines the law that has been on the books for decades – a law that was designed to prevent exactly the type of abuses that allegedly occurred here.

Even worse, granting retroactive immunity under these circumstances will undermine any new laws that we pass regarding government surveillance. If we want companies to follow the law in the future, it sends a terrible message, and sets a terrible precedent, to give them a “get out of jail free” card for allegedly ignoring the law in the past.

Mr. President, just last week a key court decision on FISA undercut one of the most popular arguments in support of immunity — that we need to let the companies off the hook because the state secrets privilege prevents them from defending themselves in court. A federal court has now held that the state secrets privilege does not apply to claims brought under FISA. Rather, more specific evidentiary rules in FISA govern. Shouldn’t we at least let these cases proceed to see how this plays out, rather than trying to solve a problem that may not even exist?

And that’s not all. Mr. President, this immunity provision doesn’t just allow telephone companies off the hook. It also will make it that much harder to get to the core issue that I’ve been raising since December 2005, which is that the President broke the law and should be held accountable. When these lawsuits are dismissed, we will be that much further away from an independent judicial review of this illegal program.

On top of all this, we are considering granting immunity when roughly 70 members of the Senate still have not been briefed on the President’s wiretapping program. The vast majority of this body still does not even know what we are being asked to grant immunity for. Frankly, I have a hard time understanding how any Senator can vote against this amendment without this information.

I urge my colleagues to support the amendment to strike the immunity provision from the bill.

Statement of Senator Christopher J. Dodd

Mr. President, I rise to offer an amendment to strike Title II, which would provide retroactive immunity to telecommunications companies

Mr. President, for many Americans, this issue may seem very difficult to follow – it may seem like just another squabble over corporate lawsuits.

But in reality, it is so much more than that. This is about choosing between the rule of law and the rule of men.

For more than seven years, President Bush has demonstrated time and time again that he neither respects the role of the Congress, nor does he respect the rule of law.

Today, we are considering legislation which will grant retroactive immunity to telecommunications companies who are alleged to have handed over to this Administration the personal information of every American—everyone phone call, every email, every fax and every text message. And all without a warrant.

Some may argue that in fact the companies received documentation from the Administration stating that the President authorized the wiretapping program and that therefore it was legal.

These advocates will argue that the mere existence of documentation justifies retroactive immunity– that because a document was received, companies should be retroactively exonerated of all wrong-doing.

But, as the Intelligence Committee has already made clear, we already KNOW that the companies received some form of documentation, with some sort of legal determination.

But that logic is deeply flawed Mr. President.

Because the question is not whether companies received a “document” from the White House. The question is, were there actions legal? It’s a rather straightforward and surprisingly uncomplicated question. Did the companies break the law?

Either the companies complied with the law as it was at the time, or they didn’t.

Either the companies and the President acted outside of the rule of law, or they followed it.

Either the underlying program was legal or it wasn’t.

If we pass retroactive immunity, none of these questions will ever be answered. Because of this so-called “compromise,” the judge’s hands will be tied, and the outcome of these cases will be predetermined. Retroactive immunity will be granted.

So Mr. President, this is about finding out what actually happened between these companies and the Administration.

It is about holding this Administration to account for violating the rule of law and our Constitution. It is about reminding this Administration that, “Where law ends, tyranny begins.”

And those aren’t my words, Mr. President – those words were spoken by British Prime Minister Margaret Thatcher.

Mr. President, it is time to say “no more.”

No more trampling our Constitution.

No more excusing those who violate the rule of law.

No more.

These are our principles.

They have been around at least since the Magna Carta.

They are enduring.

What they are not is temporary. And what we should not do in a time where our country is at risk, is abandon them. That is what is at stake here today. Allowing retroactive immunity to go forward is by its very nature an abandonment of these principles.

Like generations of American leaders before us, we too are confronted with a choice.

Does America stand for all that is still right with our world? Or do we retreat in fear?

Do we stand for justice that secures America? Or do we act out of vengeance that weakens us?

Mr. President, whatever our political party—Republican, Democrat—we were all elected to ensure that this nation adheres to the rule of law. That is our must fundamental obligation – not as partisans but as patriots serving their country.

The rule of law is not the provenance of any one political party – but of every American who has been safer because of it.

Pesident Bush is right about one thing: this debate is about security. But not in the way he imagines.

He believes we have to give up our rights to be safe.

I believe the choice between moral authority and security is a false choice.

I believe it is precisely when you stand up and protect your rights that you become stronger, not weaker.

The damage that was done to our country on 9/11 was both tragic and stunning.

But when you start diminishing our rights as a people, you compound that tragedy. You cannot protect America in the long run if you fail to protect our Constitution. It is that simple.

As Dwight D. Eisenhower who served our country both as President and as leader of the Allied Forces in Europe during World War Two, said:

“The clearest way to show what the rule of law means to us in everyday life is to recall what has happened when there is no rule of law.”

That is why I believe history will judge this President harshly for his disregard for our most cherished principles.

And if we do not change course and stand up for our Constitution, for what is best in America, for what we know is right and just, then history will most certainly decide that that it was those of us in this body who bare equal responsibility for the President’s decisions—for it was us who looked the other way, time and time again.

Mr. President, this is the moment. At long last, let us rise to it.

Support this amendment.

Stop retroactive immunity.

Stand up for the rule of law.

© 2008 – 2016, Glynn Wilson. All rights reserved.

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