[Congressional Record: February 11, 2008 (Senate)]
[Page S827-S844]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]
[DOCID:cr11fe08-24]
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FISA AMENDMENTS ACT OF 2007
The ACTING PRESIDENT pro tempore. Under the previous order, the
Senate will resume consideration of S. 2248, which the clerk will
report.
The bill clerk read as follows:
A bill (S. 2248) to amend the Foreign Intelligence
Surveillance Act of 1978, to modernize and streamline the
provisions of that Act, and for other purposes.
Pending:
Rockefeller-Bond amendment No. 3911, in the nature of a
substitute.
Whitehouse amendment No. 3920 (to amendment No. 3911), to
provide procedures for compliance reviews.
Feingold amendment No. 3979 (to amendment No. 3911), to
provide safeguards for communications involving persons
inside the United States.
Feingold-Dodd amendment No. 3912 (to amendment No. 3911),
to modify the requirements for certifications made prior to
the initiation of certain acquisitions.
Dodd amendment No. 3907 (to amendment No. 3911), to strike
the provisions providing immunity from civil liability to
electronic communication service providers for certain
assistance provided to the Government.
Bond-Rockefeller modified amendment No. 3938 (to amendment
No. 3911), to include prohibitions on the international
proliferation of weapons of mass destruction in the Foreign
Intelligence Surveillance Act of 1978.
Feinstein amendment No. 3910 (to amendment No. 3911), to
provide a statement of the exclusive means by which
electronic surveillance and interception of certain
communications may be conducted.
Feinstein amendment No. 3919 (to amendment No. 3911), to
provide for the review of certifications by the Foreign
Intelligence Surveillance Court.
Specter-Whitehouse amendment No. 3927 (to amendment No.
3911), to provide for the substitution of the United States
in certain civil actions.
Mr. KYL. Mr. President, today we are debating the amendments to the
Foreign Intelligence Surveillance Act. I am going to say a few words
about why Congress ought to provide legal relief to those private
entities that have aided the United States in our war against al-Qaida
and, in particular, one of the amendments that will be voted on
tomorrow.
I begin by quoting a passage in an opinion by Justice Cardozo, from
the time when he was the chief judge of the New York Court of Appeals.
In the 1928 decision Baggington v. Yellow Taxi Corp., this is what
Justice Cardozo had to say about the legal immunities that should be
provided to private parties that assist law enforcement efforts:
The rule that private citizens acting in good faith to
assist law enforcement are immune from suit ensures that the
citizenry may be called upon to enforce the justice of the
State, not faintly and with lagging steps, but honestly and
bravely and with whatever implements and facilities are
convenient and at hand.
We need to encourage citizen involvement in our efforts against al-
Qaida. We know that good intelligence is the best way to win the war
against those terrorists, and if we want to monitor al-Qaida, we need
access to the information which is available through the
telecommunications companies.
We asked them for help, and they provided that help at a critical
time, after 9/11. We need to know, for example, whether al-Qaida
terrorists are planning other attacks against us. When we ask parties
to assist us, such as those telecommunications companies that assisted
us after 9/11, we want them to reply not faintly and with lagging steps
but, rather, in Justice Cardozo's words: We want them to answer the
call honestly and bravely and with whatever implements and facilities
are conveniently at hand.
In today's technological world, what that means is that when we ask
these telecommunications companies for their support, they provide the
incredibly intricate and advanced technology at their disposal to
assist us in understanding what communications al-Qaida is having with
each other.
Now, tomorrow we are going to be voting on some amendments which, in
my view, weaken and in one case would actually strip the liability
protections the Intelligence Committee bill provides to such private
parties. I think these amendments are unwise.
Certainly, I urge my colleagues to reject them. Let me focus on one
of them today, one that relates to a subject called substitution. The
idea is that while it would be unfair to hold these telecommunications
companies responsible for coming to the aid of the Government in its
time of need, that they should be immune from liability, that we should
somehow substitute the U.S. Government in their place and that would
somehow balance the equities here of having the matter litigated and
yet protecting the telecommunication companies.
There are several reasons why this simply does not work. In the first
place, it would still be required to reveal the identity of the company
involved. Part of this entire matter is protecting the identity of the
company so it does not lose business around the world and so it is not
subject to the kind of abuse that would otherwise occur.
In addition to that, full discovery could be conducted. In other
words, depositions could be taken, interrogatories could be served. In
every respect, the company is not protected from the legal process, it
is simply not liable at the end of the day; it would only be the
Government that would be liable.
But the individuals of the company and the company itself would still
be subject to all the rigors of litigation which we are trying to
protect them from. The litigation does not go away. In addition to
that, a method has been set up to litigate this before the FISA Court,
which misunderstands what the FISA Court is. The FISA Court is not like
the Ninth Circuit Court of Appeals. The FISA Court is individual judges
called upon primarily to issue warrants that permit the Government to
engage in its intelligence operations.
So you do not have a court sitting the way you do in a typical
Federal district court or a circuit court. This FISA Court would
presumably have to litigate whether the companies are entitled to
substitution, so it is not a free substantiation but, rather, if they
can prove that they are entitled to the substitution.
Finally, the point of having this liability protection for the
Government's purpose is first and foremost because of the need to
protect its sources and methods of intelligence collection from the
enemy or from the public at large. Of course, if you still have the
litigation ongoing, if you still have the process, it is just that
Party A is liable rather than Party B.
You still have the threat that sources and methods could be
compromised, information relating to the activity could be disclosed,
as it has in the current debate. We should remind ourselves that what
we are debating publicly is a system of collection that has been, to
some extent, defined by public discussion of matters that were and
should have been totally classified.
We have given the enemy a great deal of information about how to
avoid the kind of collection that is vital to our efforts. That is the
kind of thing we are trying to prevent. So substitution, simply
substituting the Government as a party for the phone companies does not
solve that problem either. The bottom line is, that as with these other
amendments, the so-called substitution amendment is not a good
amendment, it should be rejected, and I hope at the end of the day we
will have been able to vote it down.
Let me conclude by repeating some of the things the Statement of
Administrative Policy stated in quoting the Intelligence Committee's
conclusions in its report.
Al-Qaida has not ceased to exist in years since the September 11
attacks. It still exists and it still seeks the wholesale murder of
American civilians. We know how devastating such attacks can be. And we
know that once an attack is underway--once a plane has been hijacked,
or a bomb has been assembled--it is too late. We need to stop al-Qaida
attacks before they are executed, before they are being carried out. We
need to act at a time when such attacks are still being planned or when
al-Qaida terrorists are still being prepared.
To gather this type of intelligence--the intelligence needed to stop
a terrorist attack--we will need the assistance of private parties.
Information about al-Qaida's communications, its travel, and other
activities often is in the hands of private parties. If we want to
monitor al-Qaida we will need access to information. And when
telecommunications companies or others are asked for their help in
tracking, for example, an al-Qaida cell that may be operating in this
country, we do not want those parties to reply ``faintly and with
lagging steps.'' Rather, in
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Justice Cardozo's words, we want them to answer the call for assistance
``honestly and bravely and with whatever implements and facilities are
convenient at hand.''
The Senate Intelligence Committee bill contains provisions that
ensure that results that future requests for assistance will be met
``honestly and bravely,'' rather than with fear of becoming embroiled
in litigation. Tomorrow the Senate will be voting on amendments that
seek to strip out or weaken the legal protections that the Intelligence
Committee bill provides to private parties that assist antiterrorism
investigations. These amendments are unwise, and I would strongly urge
my colleagues to reject them.
As the Statement of Administration Policy on the Judiciary Committee
bill notes, the failure to provide strong legal protections to private
parties would undermine U.S. efforts to respond to and stop al-Qaida in
two ways: first, it allows the continuation of litigation that has
already resulted in leaks that have done serious damage to U.S.
counterterrorism efforts. This litigation is inherently and inevitably
damaging to U.S. efforts to monitor al-Qaida's communications. As one
Intelligence Committee aide aptly characterized the situation, allowing
this litigation to go forward would be the equivalent of allowing the
legality of the Enigma code-breaking system to be litigated during
World War II.
In addition, the failure to provide protection to third parties who
have assisted the United States would undermine the willingness of such
parties to cooperate with the Government in the future. And such
cooperation is essential to U.S. efforts to track al-Qaida. As the SAP
on this bill further explains:
In contrast to the Senate Intelligence Committee bill, the Senate
Judiciary Committee substitute would not protect electronic
communication service providers who are alleged to have assisted the
Government with communications intelligence activities in the aftermath
of September 11th from potentially debilitating lawsuits. Providing
liability protection to these companies is a just result. In its
Conference Report, the Senate Intelligence Committee ``concluded that
the providers . . . had a good faith basis for responding to the
requests for assistance they received.''
The Committee further recognized that ``the Intelligence Community
cannot obtain the intelligence it needs without assistance from these
companies.'' Companies in the future may be less willing to assist the
Government if they face the threat of private lawsuits each time they
are alleged to have provided assistance.
The Senate Intelligence Committee concluded that: ``The possible
reduction in intelligence that might result from this delay is simply
unacceptable for the safety of our Nation.'' Allowing continued
litigation also risks the disclosure of highly classified information
regarding intelligence sources and methods. In addition to providing an
advantage to our adversaries by revealing sources and methods during
the course of litigation, the potential disclosure of classified
information puts both the facilities and personnel of electronic
communication service providers and our country's continued ability to
protect our homeland at risk. It is imperative that Congress provide
liability protection to those who cooperated with this country in its
hour of need.
The ramifications of the Judiciary Committee's decision to afford no
relief to private parties that cooperated in good faith with the U.S.
Government in the immediate aftermath of the attacks of September 11
could extend well beyond the particular issues and activities that have
been of primary interest and concern to the Committee. The Intelligence
Community, as well as law enforcement and homeland security agencies,
continue to rely on the voluntary cooperation and assistance of private
parties. A decision by the Senate to abandon those who may have
provided assistance after September 11 will invariably be noted by
those who may someday be called upon again to help the Nation.
Many members of the Senate Majority insist that there be stringent
congressional oversight of these intelligence-collection programs. No
one disputes that point. All agree that we need oversight over the
intelligence agencies. That is why this Congress and previous
Congresses have agreed on a bipartisan basis to create robust oversight
of U.S. intelligence gathering, even when such intelligence gathering
is directed at foreign targets. The agencies executing wiretaps and
conducting other surveillance must report their activities to Congress
and to others, so that opportunities for domestic political abuse of
these authorities are eliminated.
I conclude by asking: what is the Senate's goal? Do we want to allow
our intelligence agencies to be able to obtain the assistance of
telecommunications companies and other private parties when those
agencies are investigating al-Qaida? If so, then we need to create a
legal environment in which those companies will be willing to
cooperate--an environment in which their patriotic desire to assist the
United States does not conflict with their duties to their shareholders
to avoid expensive litigation.
We need to write the laws to ensure against the domestic political
abuse of surveillance authority, and we have done that. The question
now is whether we want to give our intelligence agents the tools that
they need to track al-Qaida. We should do so, and in order to do so, we
must defeat amendments that would weaken the bill's legal protections
for private parties who assist the government's efforts against al-
Qaida.
To conclude, we obviously want to write our laws to ensure that in
intelligence collection, and any kind of this activity, the rights of
American citizens are fully protected, that we protect against domestic
political abuse of surveillance authority. We have done that.
The question now is whether we want to give our intelligence agencies
the tools they need to track al-Qaida and other terrorists. We should
do so, and in order to do so, we have to defeat amendments that would
weaken the Intelligence Committee bill, which lays out a good process
for balancing the equities involved and ensuring that we have provided
not only the Government agencies what they need to do the job we have
asked them to do but also to protect the private parties whom the
Government has asked to volunteer to help and which up to now they have
been able to do because they felt that what they did would be protected
from liability.
Without that liability protection, the kind of negative results would
occur which I have identified.
So I hope that when this substantiation amendment comes before us,
we will vote it down and that we will also reject the other amendments
which are designed to weaken the Intelligence Committee FISA bill.
Mr. HATCH. Would the Senator from California yield for a unanimous
consent request?
Mrs. FEINSTEIN. I will yield.
Mr. HATCH. I ask unanimous consent that I be permitted to speak
immediately following the Senator from California.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Amendment No. 3910
Mrs. FEINSTEIN. Mr. President, I rise to speak on two of the
amendments in the list of amendments to be voted on tomorrow. The first
is amendment 3910. That relates to making the Foreign Intelligence
Surveillance Act the exclusive authority for conducting electronic
surveillance. This is cosponsored by Chairman Rockefeller, Chairman
Leahy, by Senators Nelson of Florida, Whitehouse, Wyden, Hagel,
Menendez, Snowe, Specter, Salazar, and I ask unanimous consent to add
Senator Cantwell to that list.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. FEINSTEIN. For the information of my colleagues, I do not intend
to modify this amendment, and so I will be seeking a vote on the
amendment as it is currently drafted.
I voted in support of the FISA bill as a member of the Intelligence
Committee. But I made clear in that committee, as well as in statements
called additional views, which are attached to the report of the bill,
that I coauthored with Senators Snowe and Hagel that changes were
necessary.
In the Judiciary Committee, we were able to secure improvements to
the Intelligence Committee's bill that I believed were needed. Most
importantly,
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the Judiciary Committee added strong exclusivity language similar to
the amendment I have now before the Senate.
Unfortunately, the Judiciary package was not adopted on the floor. So
the amendments we present are designed to restore the exclusivity
language I believe is vital to FISA and goes to the heart of the debate
on this bill, which is whether this President or any other President
must follow the law.
With strong exclusivity language, which is what we try to add, we
establish a legislative record that the language and the intent of the
Congress compels a President now and in the future to conduct
electronic surveillance of Americans for foreign intelligence purposes
within the parameters and confines of this legislation.
The amendment makes the following important changes to the bill:
First, it reinforces the existing FISA exclusivity language in title
18 of the U.S. Code by restating what has been true in the statute
since 1978--that FISA is the exclusive means for conducting electronic
surveillance, period. So legislative intent is clear.
Second, the amendment answers the so-called AUMF; that is, the
authorization to use military force loophole used by the President to
circumvent FISA.
What is that? The administration has argued that the authorization of
military force against al-Qaida and the Taliban implicitly authorized
warrantless electronic surveillance. This is an argument embroidered on
fiction, made up from nothing.
Nonetheless, the executive has chosen to use it.
Under our amendment, it will be clear that only an express statutory
authorization for electronic surveillance in future legislation shall
constitute an additional authority outside of FISA. In other words, if
you are going to conduct surveillance outside of FISA, there has to be
a law that specifically enables you to do so. Otherwise, you stay
within FISA.
Third, the amendment makes a change to the penalty section of FISA.
Currently, FISA says it is a criminal penalty to conduct electronic
surveillance except as authorized by statute. This amendment specifies
that it is a criminal penalty to conduct electronic surveillance except
as authorized by FISA or another express statutory authorization. This
means that future surveillance conducted under an AUMF or other general
legislation would bring on a criminal penalty. So follow the law or
else there is a criminal penalty.
Fourth, the amendment requires more clarity in a certification the
Government provides to a telecommunications company when it requests
assistance for surveillance and there is no court order. Henceforth,
the Government will be required to specify the specific statute upon
which the authority rests for a request for assistance.
I believe our amendment will strengthen the exclusivity of FISA. I
believe it is critical. Without this strong language, we run the risk
that there will be future violations of FISA, just as there have been
present violations of FISA. History tells us that this is very
possible.
Let me go into the history for a minute because it is interesting how
eerily similar events of the past were to events of today. Let me tell
this body a little bit about something called Operation Shamrock.
In its landmark 1976 report, the Church Committee disclosed, among
other abuses, the existence of an Operation titled ``Shamrock.'' What
was Shamrock? It was a program run by the NSA and its predecessor
organizations from August of 1945 until May of 1975. That is, for 30
years, the Government received copies of millions of international
telegrams that were sent to, from, or transiting the United States. The
telegrams were provided by major communications companies of the day--
RCA Global and ITT World Communications--without a warrant and in
secret. A third company, Western Union International, provided a lower
level of assistance as well.
It is estimated that at the height of the program, approximately
150,000 communications per month were reviewed by NSA analysts. So
telegrams coming into the country and going out of the country all went
through NSA.
According to the Church Committee report, the companies agreed to
participate in the program, despite warnings from their lawyers,
provided they received the personal assurance of the Attorney General
and later the President that they would be protected from lawsuit.
The NSA analyzed the communications of Americans in these telegrams
and disseminated intelligence from these communications in its
reporting.
If all of this history sounds eerily familiar, it should. The
parallels between Shamrock and the Terrorist Surveillance Program are
uncanny, especially when one considers that FISA was passed in 1978 as
a direct result of the Church Committee's report. Yet here we are, same
place, again today.
Almost immediately after the Church Committee's report was unveiled,
Congress went to work on what is now the Foreign Intelligence
Surveillance Act to put an end to warrantless surveillance of
Americans. FISA states that when you target surveillance on Americans,
you need a court order, period.
Some of my colleagues argue that FISA was not the exclusive authority
since 1978 and that the President has inherent article II authorities
to go around FISA.
On the first point, the legislative history and congressional intent
from 1978 is clear: Congress clearly intended for FISA to be the
exclusive authority under which the executive branch may conduct
electronic surveillance.
Let me read what the Congress wrote in 1978 in report language
accompanying the bill:
[d]espite any inherent power of the President--
That means despite any article II authority--
to authorize warrantless electronic surveillance in the
absence of legislation, by this bill and chapter 119 of title
18, Congress will have legislated with regard to electronic
surveillance in the United States, that legislation with its
procedures and safeguards, prohibits the President,
notwithstanding any inherent powers, from violating the terms
of that legislation.
That is the report language written in 1978.
The congressional debate also took on the Supreme Court's decision in
the Keith case in which the Court ruled that since Congress hadn't
enacted legislation in this area at that time, then it simply left
the Presidential powers where it found them. Right? Wrong. In response
to the Court's decision, the 1978 congressional report stated the
following:
The Foreign Intelligence Surveillance Act, however, does
not simply leave Presidential powers where it finds them. To
the contrary, this bill would substitute a clear legislative
authorization pursuant to statutory, not constitutional,
standards.
Clear. Distinct. Definitive.
It is important that the record here today clearly reiterates that in
1978 there was an unambiguous position that FISA was the exclusive
authority under which electronic surveillance of Americans could be
conducted. This was in the bill language and the report language as
passed by the 95th Congress.
But FISA's exclusivity was recognized not just by the Congress. The
executive branch also agreed that FISA was controlling and that any and
all electronic surveillance would be conducted under the law.
President Carter at the time issued a signing statement to the bill.
This wasn't a signing statement like we see today. It was not used to
express the President's disagreement with the law or his intent not to
follow part of the law. Rather, President Carter used his statement to
explain his understanding of what the law meant.
Here it is in direct quote:
The bill requires, for the first time, a prior judicial
warrant for all electronic surveillance for foreign
intelligence or counterintelligence purposes in the United
States in which communications of U.S. persons might be
intercepted.
Again, clear, distinct, definitive.
By issuing this statement, President Carter and the executive branch
affirmed not only Congress's intent to limit when the executive branch
could conduct surveillance, but it ratified that Congress had the power
to define the parameters of executive authority in this area.
So there was an abuse--Operation Shamrock--similar to this incident
with the telecoms today, followed by a clear act of Congress in passing
FISA,
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followed by a clear statement of the executive affirming the meaning of
FISA. Together, these acts were taken to end the exercise of unchecked
executive authority. Here we are, back in 1978 today.
Despite the 1978 language and Congress's clear willingness to amend
FISA to make it apply to the new war against terrorism early in its
tenure, the Bush administration decided that it would act outside the
law. This was a conscious decision. Not one part of FISA was ever tried
to be put under the auspices of the FISA law and the Foreign
Intelligence Surveillance Court. That was both wrong and unnecessary.
To justify this mistake, the Department of Justice developed a new
convoluted argument that Congress had authorized the President to go
around FISA by passing the authorization for use of military force
against al-Qaida and the Taliban. Can anybody really believe that?
This, too, was wrong. I was there. I sat in most meetings. I defy
anybody in this body to come forward and tell me privately or publicly
that going around FISA was ever contemplated by the AUMF. In fact, it
was not. It was never even considered.
Apparently not confident of its AUMF argument, the administration
decided to also assert a broad theory of Executive power, premised on
Article II of the Constitution. These are the powers of the President.
Under this argument, the Bush administration asserted that despite
congressional action, the President has the authority to act
unilaterally and outside of the law if he so chooses, simply by virtue
of his role as Commander in Chief. While Presidents throughout history
all tried to expand their power, this new twist would place the
President of the United States outside the law. Taken to its logical
conclusion, if the Congress cannot enact statutes that the President
must follow, then he is above the law. I disagree with that position. I
do not believe anyone can be above the rule of law. But I am not the
only one.
Justice Jackson described it best in his Youngstown opinion. In 1952,
against the backdrop of the Korean war, the Supreme Court addressed the
issue of when congressional and executive authorities collide in the
Youngstown Sheet and Tube Company v. Sawyer. The question presented in
Youngstown was whether President Truman was acting within his
constitutional powers when he issued an order directing the Secretary
of Commerce to take possession of and operate most of the Nation's
steel mills. In other words, the Government was going to take over the
steel mills.
The Truman administration argued that the President was acting within
his inherent power as Commander in Chief in seizing the steel mills,
since a proposed strike by steelworkers would have limited the Nation's
ability to produce the weapons needed for the Korean war.
The Bush administration today is making the very same argument. It is
asserting that the President's constitutional authorities as Commander
in Chief trump the law. However, in a 6-to-3 decision in Youngstown,
the Supreme Court held that President Truman exceeded his
constitutional authority. Justice Jackson authored the famous
concurring opinion, setting forth the three zones into which
Presidential actions fall.
The first zone: When the President acts consistently with the will of
Congress, the President's power is at its greatest.
Two: When the President acts in an area in which Congress has not
expressed itself, there is an open question as to the scope of
congressional and Presidential authority. So we know the first two.
The third zone: When the President acts in contravention of the will
of Congress, Presidential power is at its lowest.
That is where we are right now. Clearly, President Bush acted outside
of the scope of the law. According to Youngstown, his power is at its
lowest. The only way to test that is to bring a case before the Supreme
Court again. But the fact the Court ruled against Truman in a situation
of war--in a situation where a strike would have shut down the steel
mills, when Truman tried to use his commander in chief authority to
seize the steel mills, the Court said: You cannot do that, and then it
went on to define the different zones of Presidential authority. It is
a big opinion, and it is one which is often quoted in our judicial
hearings on Supreme Court nominees.
Justice Jackson also wrote:
When the President takes measures incompatible with the
expressed or implied will of Congress--
Which is this case--
his power is at its lowest ebb, for then he can rely only on
his constitutional powers, minus any constitutional powers of
Congress over the matter.
Now, this is key, this last part: Although Justice Jackson's opinion
was not binding at the time, the Supreme Court has since adopted it as
a touchstone for understanding the dimensions of Presidential power.
The Youngstown case is as important today as it was then.
That is why I am proposing this amendment. I want to make it crystal
clear, and my cosponsors want to make it crystal clear, that Congress
has acted to prohibit electronic surveillance on U.S. persons for
foreign intelligence purposes outside of FISA, and this amendment does
that.
One day this issue is going to be before the Court, and on that day I
want the Justices to be able to go back and see the legislative intent;
the legislative intent as it was in the Judiciary Committee, the
legislative intent as it is here on the floor, and the legislative
intent of this amendment to strengthen the exclusivity parts of FISA.
What we have here is a case of history repeating itself: abuse
followed by a clear statement from Congress, then another abuse with
the Terrorist Surveillance Program. It too should be followed by a
clear statement from Congress.
Now is the time for the Congress of the United States to reassert its
constitutional authorities and pass a law that clearly and
unambiguously prohibits warrantless surveillance outside of FISA. Now
is the time to say that no President, now or in the future, can operate
outside of this law.
I mentioned that in 2001 the President chose to go outside of FISA.
In January of 2007, after the Intelligence Committee learned about the
full dimensions of the law, guess what. The executive branch brought it
to the Court and bit by bit put the program under the Foreign
Intelligence Surveillance Court. Today, the entire program is within
the parameters of the Foreign Intelligence Surveillance Court.
What I am saying to this body is it was a terrible misjudgment not to
do so in 2001, because I believe the Foreign Intelligence Surveillance
Court would have given permission to the program. So I believe this
amendment is absolutely crucial, and I very much hope it will pass
tomorrow.
Now, if I may, I wish to speak in support of my amendment to replace
the full immunity in the underlying bill with a system of FISA Court
review. This is amendment No. 3919. I am joined in this amendment by
Senators Bill Nelson, Ben Cardin, and Ken Salazar. I ask unanimous
consent to add Senator Whitehouse as a cosponsor, and I know that
Senator Whitehouse wishes to come to the floor to speak to this
amendment.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mrs. FEINSTEIN. This amendment is about allowing a court to review
the request for immunity for the telecommunications companies, but in a
way that is carefully tailored to meet this unique set of suits. It
allows for the good faith defense if the companies reasonably believed
the assistance they provided the Government was legal.
As Members know, the FISA Court comprises 11 Federal district court
judges appointed by the Chief Justice. It has heard thousands of
applications for FISA warrants and has recently made determinations on
the executive's procedures under the Protect America Act. In January of
2007, the Court put the entire Terrorist Surveillance Program under its
jurisdiction. Its judges and its staff are experts in surveillance law,
and the Court protects national security secrets.
Let me describe the amendment briefly. Under this amendment, the FISA
Court is directed to conduct a tailored, three-part review.
Part one: The FISA Court will determine whether a telecommunications
company actually provided the assistance to the Federal Government as
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part of the Terrorist Surveillance Program. If not, those cases are
dismissed. So if you didn't give help and you have litigation pending,
the case is dismissed, period.
Second: If assistance was provided, the Court would review the
request letters sent from the Government to the companies every 30 to
45 days. The FISA Court would then have to determine whether these
letters, in fact, met the requirements of the applicable law. There is
law on this. It is part of FISA. It is 18 U.S.C. 2511. If they met the
requirements, the cases against the companies are dismissed.
Now, let me tell my colleagues what the law says. Sections
2511(2)(a)(ii)(A) and (ii)(B) state that companies are allowed to
provide assistance to the Government if they receive a certification in
writing by a specified person (usually the Attorney General or a law
enforcement officer specifically designated by the Attorney General).
The certification is required to state that no warrant or court order
is required by law, that all statutory requirements have been met, and
that the specified assistance is required by the Government. Now that
is what the law says. It is short, it is succinct, it is to the point.
The question is: Do the specifics of the actual documents requesting
assistance meet the letter of this law with respect to contents and
timing. If they did, the companies would be shielded from lawsuits.
Why? Because that is the law. That is what the law says. No one would
want us not to follow the law.
Finally, in any case where the defendant company did provide
assistance but did not have a certification that complied with the
requirements I have read, the FISA Court would assess whether the
company acted in good faith, as has been provided under common law.
There are several cases of common law that describe what is called
the good faith defense--the U.S. v. Barker, Smith v. Nixon, Halperin v.
Kissinger, and Jacobson v. Bell Telephone. So there is common law on
the subject.
There would be at least three lines of defense for defendant
companies in this situation. They could argue that the assistance was
lawful under the statutes other than 18 U.S.C. 2511--the law I have
cited; that they believed, perhaps wrongly, that the letters from the
Government were lawful certifications; or that complying with the
request for assistance was lawful because the President had article II
authority to conduct this surveillance. They could make their
arguments, and the plaintiffs, against the defendant companies, could
make their arguments.
In this case, the FISA Court would then determine whether the company
acted in good faith and whether it had an objectively reasonable belief
that compliance with the Government's written request or directives for
assistance were lawful. If the Court finds that the company met this
standard, the lawsuits would be dismissed.
I believe this very narrow three-part test strikes the right balance
between the competing interests in the immunity debate. This amendment
neither dismisses the cases wholesale, nor does it allow the cases to
proceed if the companies had an objectively reasonable belief that
their compliance was lawful.
Let me point out for a moment some of the history relevant to this
issue.
First: Requests for assistance from the Government to the telecoms
came about 1 month following the worst terrorist attack against our
Nation. That is fact. There was an ongoing acute national threat. That
is a fact. The administration was warning that more attacks might be
imminent. That was fact. And we now know that there was a plot to
launch a second wave of attacks against the west coast.
Two: Certain telecom companies received letters every 30 to 45 days
from very senior Government officials. That is fact. I have read them.
The letters said the President had authorized their assistance. That is
fact. They also said the Attorney General had confirmed the legality of
the program. That is fact. These assurances were from the highest
levels of the Government.
Third: Only a very small number of people in these companies had the
security clearances to be allowed to read the letters, and they could
not consult others with respect to their legal responsibility, nor are
these telecommunication company executives expert in separation of
powers law--either article II legal arguments or the flawed AUMF
argument.
Fourth: As I mentioned, common law has historically provided that if
the Government asks a private party for help and makes such assurances
that help is legal, the person or company should be allowed to provide
assistance without fear of being held liable. That is true. Common law
does this. One would think this would be especially true in the case of
protecting our Nation's security.
Fifth, taking no legislative action on the pending cases ignores the
fact that these companies face serious, potentially extraordinarily
costly litigation but are unable at the present time to defend
themselves in court. The Government has invoked the state secrets
defense.
Now, this is a sort of insidious defense. It places the companies in
a fundamentally unfair place. Individuals and groups have made
allegations to which companies cannot respond. They cannot answer
charges, nor can they respond to what they believe are misstatements of
fact and untruths.
Bottom line, they cannot correct false allegations or misstatements,
they cannot give testimony before the court, and they cannot defend
themselves in public or in private.
While I have concerns about striking immunity altogether or
substituting the Government for the companies, I don't believe full
immunity is the best option without having a court review the
certification and the good-faith defense.
Currently, under FISA there is a procedure that allows the Government
to receive assistance from telecommunications companies. As I have
already described, title 18 of the U.S. Code, section 2511, states that
the Government must provide a court order or a certification in writing
that states:
No warrant or court order is required by law, that all
statutory requirements have been met, and that the specified
assistance is required, setting forth the period of time
during which the provision of the information, facilities, or
technical assistance is authorized and specifying the
information, facilities, or technical assistance required. .
. .
That is it. Under the law, these are the circumstances under which a
telecommunications company may provide information and services to the
Government. Unfortunately, the administration chose not to go to the
FISA Court in the fall of 2001 for a warrant. I will never understand
why. Instead, it asserted that Article II of the Constitution allowed
the President to act outside of FISA.
However, as I said, by January of 2007--more than 5 years later--the
entire Terrorist Surveillance Program was, in fact, brought under the
FISA Court's jurisdiction. So, ultimately, the administration agreed
that the program can and should be conducted under the law.
Senators Nelson, Cardin, Salazar, Whitehouse, and I believe the
question of whether telecommunications companies should receive
immunity should hinge on whether the letters the Government sent to
these companies met the requirements of 18 U.S.C. 2511 or, if not, if
the companies had an objectionably reasonable belief their assistance
was lawful, and what that objective belief was.
In other words, we should not grant immunity if companies were
willingly and knowingly violating the law.
So the best way to answer this question is to allow an independent
court, skilled in intelligence matters, to review the applicable law
and determine whether the requirements of the law or the common law
principle were, in fact, met. If they were, the companies would receive
immunity; if not, they would not. But a court would make that decision,
not a body, some of whom have seen the letters but most of whom have
not. But it would be a court that is skilled in this particular kind of
law.
I want to briefly comment on procedure. I very much regret that this
amendment faces a 60-vote threshold when the other two amendments
relating to telecom immunity face majority votes. Clearly, someone was
afraid this might get a majority vote and, therefore, they put on a 60-
vote requirement.
This, I believe, is prejudicial, and it places a higher burden on
this amendment. And the irony is, this amendment could be an acceptable
solution
[[Page S832]]
for the other House, which has passed a bill that doesn't contain any
provisions for immunity and has said they would not provide any
provision for immunity. This is the way to handle that particular
issue.
I, therefore, urge my colleagues to support this amendment both on
the merits and so that we can finish the FISA legislation. I hope the
conferees will take a strong vote on this amendment--whether it reaches
60 Senators to vote aye or not--as a signal that it is a good solution
when the legislation goes to conference.
Mr. President, I ask for the yeas and nays on both of these
amendments.
The ACTING PRESIDENT pro tempore. Is there objection to asking for
the yeas and nays on the two amendments at this time?
Without objection, it is so ordered.
Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
The ACTING PRESIDENT pro tempore. The Senator from Utah is
recognized.
Mr. HATCH. Mr. President, for the last 6 months I have come to the
floor on numerous occasions to offer my support of the limited immunity
provisions in the Rockefeller-Bond bill.
In addition to my views on this subject, there are countless
Americans who have expressed their support for the immunity provision.
In fact, I ask unanimous consent to have printed in the Record a
letter sent to the Senate leadership last month, which is signed by 21
State attorneys general, which expresses their strong support for the
immunity provision included in this bill.
There being no objection, the material was ordered to be printed in
the Record, as follows:
December 11, 2007.
RE FISA Amendments Act of 2007 (S. 2248).
Hon. Harry Reid,
Senate Majority Leader,
Washington, DC.
Hon. Mitch McConnell,
Senate Minority Leader,
Washington, DC.
Dear Majority Leader Reid and Minority Leader McConnell: We
understand that the Senate will soon consider S. 2248, the
FISA Amendments Act of 2007, as recently reported by the
Senate Select Committee on Intelligence. Among other things,
the bill would directly address the extensive litigation that
communications carriers face based on allegations that they
responded to requests from the government regarding certain
intelligence-gathering programs. For a number of reasons, we
support these carefully crafted provisions of the bill that
the Intelligence Committee adopted on a bi-partisan basis.
First, protecting carriers from this unprecedented legal
exposure is essential to domestic and national security.
State, local and federal law enforcement and intelligence
agencies rely heavily on timely and responsive assistance
from communications providers and other private parties;
indeed, this assistance is utterly essential to the agencies'
functions. If carriers and other private parties run the risk
of facing massive litigation every time they assist the
government or law enforcement, they will lack incentives to
cooperate, with potentially devastating consequences for
public safety.
Second, the provisions of the bill are consistent with
existing, long-standing law and policy. Congress has long
provided legal immunity for carriers when, in reliance on
government assurances of legality or otherwise in good faith,
they cooperate with law enforcement and intelligence
agencies. But because the government has invoked the ``state
secrets privilege'' with respect to the subject matter of the
cases, the carriers are disabled from mounting an effective
defense, they are not permitted to invoke the very immunities
written into the law for their benefit, and they cannot rebut
the media storm that has damaged the companies' reputations
and customer relationships. The immunity provisions of S.
2248 would overcome this paradox, but not simply by
dismissing the pending cases outright. Instead, they would
establish a thoughtful, multi-step process involving
independent review by the Attorney General and the courts
that, only when completed, would lead to dismissal of the
claims.
Third, cases against the carriers are neither proper nor
necessary avenues to assess the legality of the government's
intelligence-gathering programs. Government entities or
officials are already parties in over a dozen suits
challenging the legality of the alleged programs, and the
immunity provisions in S. 2248 would have no impact on these
claims. In short, Congress should not, in a rush to hold the
government accountable for alleged wrongdoing, burden these
carriers with the substantial reputational damage and
potentially ruinous liability that could flow from these
suits. If these alleged programs were legally infirm, the
government, not private actors who acted in good faith and
for patriotic reasons, should answer for them.
For these reasons, we urge that any FISA-reform legislation
adopted by the Senate include the carrier-immunity provisions
currently contained in S. 2248.
Hon. W.A. Drew Edmondson, Attorney General of Oklahoma;
Hon. J.B. Van Hollen, Attorney General of Wisconsin;
Hon. John Suthers, Attorney General of Colorado; Hon.
Patrick Lynch, Attorney General of Rhode Island; Hon.
Bill McCollum, Attorney General of Florida; Troy King,
Attorney General of Alabama; Hon. Dustin McDaniel,
Attorney General of Arkansas; Hon. Thurbert E. Baker,
Attorney General of Georgia; Hon. Paul Morrison,
Attorney General of Kansas; Hon. Kelly Ayotte, Attorney
General of New Hampshire.
Hon. Jon Bruning, Attorney General of Nebraska; Hon.
Wayne Stenehjem, Attorney General of North Dakota; Hon.
Roy Cooper, Attorney General of North Carolina; Hon.
Henry McMaster, Attorney General of South Carolina;
Hon. Tom Corbett, Attorney General of Pennsylvania;
Hon. Greg Abbott, Attorney General of Texas; Hon. Larry
Long, Attorney General of South Dakota; Hon. Bob
McDonnell, Attorney General of Virginia; Hon. Mark
Shurtleff, Attorney General of Utah; Hon. Darrell
McGraw, Attorney General of West Virginia; Hon. Bob
McKenna, Attorney General of Washington.
Mr. HATCH. Mr. President, here is the list of the attorneys general
who signed this letter endorsing the immunity provision in the original
Rockefeller-Bond bill. They are attorneys general from the States of
Wisconsin, Rhode Island, Oklahoma, Colorado, Florida, Alabama,
Arkansas, Georgia, Kansas, Utah, Texas, New Hampshire, Virginia, North
Dakota, North Carolina, South Carolina, Pennsylvania, South Dakota,
Nebraska, West Virginia, and Washington.
In addition, I ask unanimous consent to have printed in the Record
four letters sent from law enforcement organizations, all in support of
the immunity provision of the bill.
There being no objection, the material was ordered to be printed in
the Record, as follows:
National Sheriff's Association,
Alexandria, VA, November 13, 2007.
Hon. Patrick J. Leahy
Chairman, Committee on the Judiciary, U.S. Senate,
Washington, DC.
Hon. Arlen Specter,
Ranking Member, Committee on the Judiciary, U.S. Senate,
Washington, DC.
Dear Chairman Leahy and Ranking Member Specter: On behalf
of the National Sheriffs' Association (NSA), I am writing to
urge you to support Section 202 of the FISA Amendments Act of
2007 (S. 2448). This extension of retroactive immunity under
the terms referenced in this section would have a significant
impact on the cooperative relationship between the government
and the private companies to safeguard public safety.
As you know, the electronic surveillance for law
enforcement and intelligence functions depends in great part
on the cooperation of the private companies that operate the
nation's telecommunication system. Section 202 would provide
much needed liability relief to electronic communication
service providers that assisted the intelligence community to
implement the President's surveillance program in the
aftermath of September 11, 2001. The provision of retroactive
immunity would help ensure that these providers who acted in
good faith to cooperate with the government when provided
with lawful requests in the future.
The nation's sheriffs recognize the critical role that
electronic communication service providers play in assisting
intelligence officials in national security activities.
However, given the scope of the current civil damages suits,
we are gravely concerned that, without retroactive immunity,
the private sector might be unwilling to cooperate with
lawful government requests in the future. The possible
reduction in intelligence that might result from protracted
litigation is unacceptable for the security of our citizens.
As the Senate considers the FISA Amendments Act of 2007, we
strongly urge you to help preserve the cooperative
relationship between law enforcement and the private sector
by supporting Section 202.
Sincerely,
Sheriff Craig Webre,
President.
____
The National Troopers Coalition,
Washington, DC, November 12, 2007.
Hon. Patrick J. Leahy,
Chairman, Senate Judiciary Committee, Washington, DC.
Hon. Arlen Specter,
Ranking Member, Senate Judiciary Committee, Washington, DC.
Dear Chairman Leahy and Ranking Member Specter: As the
Senate Judiciary Committee gets set to consider legislation
that would update the Foreign Intelligence Surveillance Act
(FISA), the National Troopers Coalition wishes to express its
support for Section 202 of the FISA Amendments Act of 2007.
This section is of particular importance to the NTC and law
enforcement in general
[[Page S833]]
because it will have a significant impact on the cooperative
relationship between government and the private sector in
relation to public safety.
Section 202 provides much needed relief from mass tort
litigation relief to telecommunications companies that helped
protect our nation after the horrific attacks of September
11, 2001. Should this narrow provision not be adopted, we
believe that all levels of law enforcement will suffer by
losing the cooperation of vital allies in our ongoing fight
againt crime. The chilling effect will be that businesses may
feel compelled to avoid the risk of litigation by declining
to cooperate with law enforcement even though they have every
reason to believe the request is lawful.
In the weeks following the 9/11 attacks, some
telecommunications companies were apparently asked by the
President for their assistance with intelligence activities,
aimed at preventing similar attacks in the future. These
companies were assured that their compliance was necessary
and deemed lawful by the Attorney General. Upon complying
with the government's request, and providing information that
would keep the American people safe, these companies now face
the prospect of years of litigation, even though they cannot
defend themselves in court due to the highly classified
nature of the governmental program they were assured was
legal. This is disheartening, to say the least.
The nation's State Troopers understand the vital role that
private businesses play in emergency situations and criminal
investigations, and we are concerned that if these companies
continue to be dragged through costly litigation for having
responded in these circumstances, it will deter their
voluntary cooperation with law enforcement authorities in the
future. When it comes to protecting the public from
terrorists, sophisticated international gangs and on-line
predators, government counts on its private sector partners
for help. We cannot afford to send the message that if you
cooperate with law enforcement you will be sued.
As the Senate considers this legislation, we strongly urge
you to help preserve the cooperative relationship between law
enforcement and private businesses by supporting Section 202.
Sincerely,
Dennis J. Hallion,
Chairman.
____
National Narcotic Officers'
Association's Coalition,
West Covina, CA, November 14, 2007.
Re Support for Section 202 of the FISA Amendments Act of 2007
Hon. Patrick Leahy,
Chairman, Senate Committee on the Judiciary, Washington, DC.
Hon. Arlen Specter,
Ranking Member, Senate Committee on the Judiciary,
Washington, DC.
Dear Chairman Leahy and Ranking Member Spector: I am
writing on behalf of the forty-four state narcotic officers'
associations and the more than 69,000 law enforcement
officers represented by the National Narcotic Officers'
Associations' Coalition (NNOAC) to encourage your strong
support for Section 202 of the FISA Amendments Act of 2007.
Section 202 provides much-needed relief from mass tort
litigation towards telecommunications companies that helped
protect our nation after the horrific attacks of September
11, 2001. Should this provision not be adopted, we believe
that federal, state and local law enforcement will suffer by
losing important voluntary cooperation of allies in our
national fight against crime. Private corporations and
business may decide to avoid the risk of litigation by
declining to cooperate with law enforcement--even if they
have every reason to believe the request for their help is
lawful and just.
The NNOAC understands and appreciates the vital role that
private businesses play in emergency situations and criminal
investigations. Our membership is very concerned that if
these corporate entities continue to be dragged through
costly litigation for having responded during dire
circumstances--like the terrorist attacks occurring on
September 11, 2001--it will have a chilling effect on the
private sector's voluntary cooperation with law enforcement
in the future. The United States government cannot afford to
send the message to corporate America that if you cooperate
with law enforcement and the office of the United States
Attorney General, you will get sued.
Thank you for your consideration of this important
provision and your continued support towards law enforcement.
I am happy to discuss this issue further.
Sincerely,
Ronald E. Brooks,
President.
____
International Association
of Chiefs of Police,
Alexandria, VA, November 15, 2007.
Hon. Patrick Leahy,
Chair, Committee on the Judiciary, U.S. Senate, Washington,
DC.
Dear Chairman Leahy: As President of the International
Association of Chiefs of Police (IACP), I am writing to
express my support for Section 202 of the FISA Amendments Act
of 2007. This section is of particular importance to law
enforcement because it will have a significant impact on the
vital cooperative relationship between government and the
private sector that is necessary to promote and protect
public safety.
As you know, Section 202 provides relief from litigation to
telecommunications companies that responded to the
government's request for assistance following the horrific
attacks of September 11, 2001. It is my belief that failure
to adopt this provision could jeopardize the cooperation of
vital allies in our ongoing fight against crime and
terrorism. Businesses often feel compelled to avoid the risk
of litigation by declining to cooperate with law enforcement
even though they have every reason to believe the request is
lawful.
Police chiefs understand the vital role that private
businesses often play in emergency situations and criminal
investigations, and we are concerned that if these companies
are faced with the threat of litigation for responding in
these circumstances, it will have a chilling effect on their
voluntary cooperation with law enforcement authorities in the
future.
At this critical time in history, when federal, state,
tribal and local law enforcement agencies are striving to
protect the public from terrorists, sophisticated
international gangs, online predators, and other violent
criminals, it is extremely important that we be able to rely
on the private sector for much needed assistance.
Therefore, as the Senate considers this legislation, I urge
you to help preserve the cooperative relationship between law
enforcement and private businesses by supporting Section 202.
Thank you for your attention to this important matter and
for your efforts on behalf of law enforcement.
Sincerely,
Ronald C. Ruecker,
President.
Mr. HATCH. Mr. President, The first letter is from the National
Sheriffs Association on behalf of 20,000 nationwide sheriffs. It states
in part:
The Nation's sheriffs recognize the critical role that
electronic communication service providers play in assisting
intelligence officials on national security activities. We
are gravely concerned that, without retroactive immunity, the
private sector might be unwilling to cooperate with lawful
Government requests in the future. The possible reduction in
intelligence that might result from protracted litigation is
unacceptable to the security of our citizens. We strongly
urge you to help preserve the cooperative relationship
between law enforcement and the private sector by supporting
the immunity provision of this bill.
The other letters include one from the National Troopers Coalition,
on behalf of its 40,000 members, one from the International Association
of Chiefs of Police, on behalf of its 21,000 members, and one from the
National Narcotics Officers' Association's Coalition on behalf of its
69,000 members. All of these letters support the retroactive immunity
provision.
I have to tell you, when 150,000 law enforcement personnel with
tremendous experience and expertise say they support telecom
retroactive immunity, we should be listening and we should be giving
this great weight. They know firsthand the dangers we face and they
know what is at stake.
Let me talk a little about the Feinstein amendment No. 3910 on
exclusive means. S. 2248 already has an exclusive means provision that
is identical to the first part of the distinguished Senator's
amendment. That provision simply restates Congress's intent back in
1978, when FISA was enacted, to place the President at his lowest ebb
of authority in conducting warrantless foreign intelligence
surveillance.
The current provision in S. 2248 was acceptable to all sides in the
Intelligence Committee because it maintains the status quo with respect
to the dispute over the President's constitutional authority to
authorize warrantless surveillance.
Unfortunately, the amendment of the distinguished Senator from
California is a significant expansion of the bipartisan provision that
we enacted in the Intelligence Committee bill. Her amendment goes
further by stating that only an express statutory authorization for
electronic surveillance, other than FISA or the criminal wiretap
statutes, shall constitute additional exclusive means.
This attempts to prohibit the President's exercise of his judicially
recognized article II authority to issue warrantless electronic
surveillance directives.
During the next attack on our country or in the face of an imminent
threat, the Congress may not be in a position to legislate an express
authorization of additional means. We may get intelligence information
about an imminent threat during a lengthy recess, over a holiday. Air
travel may be inhibited.
The bottom line is, we don't know what tomorrow will bring. Yet this
[[Page S834]]
provision of the distinguished Senator from California would raise
unnecessary legal concerns that might impede effective action by the
executive branch to protect this country.
This amendment would also make members of the intelligence community
who conduct electronic surveillance at the direction of the President
subject to the FISA criminal penalty provisions of a $10,000 fine and
imprisonment for not more than 5 years.
Virtually all of these people are not partisan people. They are
people who continue on regardless of what administration is involved.
They are there to do the job to protect us. They are not partisans. We
should not treat them as such, and certainly we should not be saying
that if they make a mistake, they are subject to a criminal provision
of a $10,000 fine or imprisonment of not more than 5 years. Also, it is
likely these criminal penalties would apply to any service provider who
assisted the Government in conducting such electronic surveillance.
That makes it even tougher to get their cooperation. Up until now they
have been willing to cooperate because they realize how important this
work is, and they have the request of high-level officials in the
Government. That should be enough to protect them. They are doing it
patriotically, to protect our country. They should not be hampered nor
should their general counsels have to make a decision that the U.S.
Government will have to go to court, with all of the delays involved in
that, in order to do what it takes to protect the people in this
country.
Regardless of what the skeptics and critics have said about the
President's Terrorist Surveillance Program, the Constitution trumps the
FISA statute. If a Government employee acts under the color of the
President's lawful exercise of his constitutional authority, that
employee should not be subject to a criminal penalty.
In my opinion, the current restatement of exclusive means is fair and
keeps the playing field level, and it is enough. Ultimately, the
Supreme Court may decide whether Congress has the authority to limit
the President's authority to intercept enemy communications. Until
then, it is my hope that we don't try to tilt the balance in a way that
we may someday come to regret.
I urge my colleagues to vote against this exclusive means amendment.
The next Feinstein amendment is No. 3919. This amendment alters the
immunity provision of the Rockefeller-Bond bill. I will oppose this
amendment.
As has been said countless times, the immunity provision in this
legislation was created after months of extensive debate and
negotiation between the Congress and the intelligence community.
I cannot emphasize enough the painstaking work that the Intelligence
Committee undertook in order to create this immunity provision. The
chairman of the Senate Select Committee on Intelligence stated the
following in the Intelligence Committee report:
The [Intelligence] Committee did not endorse the immunity
provision lightly. It was the informed judgment of the
Committee after months in which we carefully reviewed the
facts in the matter. The Committee reached the conclusion
that the immunity remedy was appropriate in this case after
holding numerous hearings and briefings on the subject and
conducting a thorough examination of the letters sent by the
U.S. Government to the telecommunications companies.
The administration wanted more than what is in this bill, and they
did not get it. In a bipartisan way, we came together to come up with
this bill, and it should not be tampered with now on the floor.
Let's look at what this means in relation to ongoing litigation.
Since this immunity compromise provides no immunity for Government
agencies or officials, the following seven cases will continue to be
unaffected by this legislation. The immunity provision of the Senate
Select Committee on Intelligence bill still allows TSP challenges in
the al-Haramain Islamic Foundation, Inc. v. George W. Bush case, the
ACLU v. National Security Agency case, the Center for Constitutional
Rights v. George W. Bush case, the Guzzi v. George W. Bush case, the
Henderson v. Keith Alexander case, the Shubert v. George W. Bush case,
and the Tooley v. George W. Bush case.
I wish to draw attention to the first case. The al-Haramain Islamic
Foundation has been designated by the Department of the Treasury as a
``specially designated global terrorist'' for providing support to al-
Qaida and was similarly designated by the United Nations Security
Council. If there ever was a case that should be dismissed, this is
it--a terrorist organization providing support to al-Qaida sues the
President for listening to their terrorist conversations. Unbelievable.
And yet since the immunity provision in this bill is silent on the
issue, the case will go on.
I highlight this case to remind people the provision in the bill
already represents a compromise. The provision in the original bill
passed by a 13-to-2 bipartisan vote out of the Intelligence Committee
on which I serve. Despite repeated attempts to tweak this compromise,
it remains the most appropriate and just mechanism for the resolution
of this issue.
Just like the faulty ideas of Government indemnification and
Government substitution, the Foreign Intelligence Surveillance Court
review of certifications is yet another alternative that fails to
improve on the original bipartisan immunity compromise we have in the
bill before us.
I will oppose any provisions which weaken the immunity compromise.
This amendment we are debating will do exactly that. Rather than rely
on the carefully crafted language, this amendment introduces radically
new ideas which completely change the dynamics of the immunity
provision of the bipartisan bill. Rather than allowing the presiding
district judge to review the Attorney's General certification called
for in this bill, this amendment unnecessarily expands the Foreign
Intelligence Surveillance Court jurisdiction into areas unheard of when
this court was created nearly 30 years ago and equally unheard of in
the year 2008.
Let's remember what it is that the Foreign Intelligence Surveillance
Court was created to do:
A court which shall have jurisdiction to hear applications
for and grant orders approving electronic surveillance.
That is the mission of the FISC. So the FISC hears applications for
and grants orders approving electronic surveillance. That is it. That
is all they were created to do and rightly so. These are judges from
all over the country who serve on the FISC at special times and do read
these briefs, do read these legal matters that come before them, and
then do exactly that, ``a court which shall have jurisdiction to hear
applications for and grant orders approving electronic surveillance.''
Yet this legislation will completely alter the nature of this court
by transforming it into a trial court for adversarial litigation. This
completely alters the intention of FISA from 1978 which carefully
created this court. The role of the FISC, or Federal Intelligence
Surveillance Court, has been greatly misunderstood during this debate.
I suggest we pay close attention to the recent opinion from the FISC,
which is only the third public opinion in the history of the FISC, and
that is over a 30-year period. The importance of this quote has been
emphasized many times by Senator Bond, and this is what the FISC said:
Although the FISC handles a great deal of classified
material, FISC judges do not make classification decisions
and are not intended to become national security experts.
Furthermore, even if a typical FISC judge had more expertise
in national security matters than a typical district court
judge, that expertise would not be equal to that of the
executive branch which is constitutionally entrusted with
protecting the national security.
I understand there are certain Senators in this body who dislike
President Bush. That is their right. But on the other hand, there may
come a time when a President of their party may have to protect our
country. They ought to think it through because they are taking away
the tools that are necessary to protect our country in a zeal to go
beyond what the FISC was ever designated to do.
Going beyond the fact this amendment would turn the role of the FISA
Court on its head, let's look at what the FISC is asked to do in this
amendment. According to the language, liability protection would only
occur in three limited instances: One, the statutory defense in 18
U.S.C. 2511(2)(a)(ii)
[[Page S835]]
has been met. Two, the assistance of electronic surveillance service
providers was undertaken on good faith and pursuant to an ``objectively
reasonable belief'' that compliance with the Government's directive was
lawful. And three, assistance was not provided.
Regarding the first instance in which litigation would be dismissed,
we need to realize 18 U.S.C. 2511 is not the only statute that allows
the Government to receive information from telecommunications
companies. There are numerous statutes which authorize the Government
to receive information from private businesses. Here is a list not
meant to include all such statutes. Look at this list:
18 U.S.C. 2516; 18 U.S.C. 2518, 18 U.S.C. 2512(2)(a)(ii), 18 U.S.C.
2511(3)(b)(iv), 50 U.S.C. 1802(a), 50 U.S.C. 1804, 50 U.S.C. 1805, 50
U.S.C. 1811, 50 U.S.C. 1861, 18 U.S.C. 2702(b)(5), 18 U.S.C.
2702(c)(5), 18 U.S.C. 2702(b)(8), 18 U.S.C. 2702(c)(4), 18 U.S.C.
2703(a), 18 U.S.C. 2709, 50 U.S.C. 1842, 18 U.S.C. 3127, 50 U.S.C.
1843, and 50 U.S.C. 1844, to mention a few.
Regarding the second narrow instance of dismissal of litigation, the
phrase ``objectively reasonable belief'' is not defined in the
legislation. What does this mean? How can it not be given a definition
if the court is supposed to rely on it? Are we going to turn it over to
the court to define it? Again, that is not the mission of the court.
The court is not skilled in intelligence matters, except to the extent
they have to know about it to be able to approve the various requests
that are made of them, and there is no way it is going to be as skilled
as the intelligence community.
So this amendment would grant the FISC new jurisdiction to review
past conduct of private businesses utilizing a standard which did not
exist at the time of the supposed activity and a standard which is not
even defined in the legislation which creates it. Wow.
In addition, this amendment would allow plaintiffs and defendants to
appear before the Federal Intelligence Surveillance Court. But we
should know the FISC is not a trial court. It has never had plaintiffs
in ongoing civil litigation appear before it in its nearly 30 years of
existence.
There are approximately 40 civil cases which are ongoing out of this
matter. Would all these plaintiffs appear before FISC? How would
classified information, therefore, be protected? This amendment would
create an entirely new role for the FISC, thus abandoning the very
formula by which the FISC was created in the first place. Remember, the
FISC was created to be a specialized court. Yet the expansion of FISC
jurisdiction and duty required by this amendment brings us down a road
where the FISC could be transformed from a specialized court to an
appendage of the Federal district court. That precedent set by this
amendment could forever alter the role of the FISC.
Quite simply, the FISC is not a trial court, nor should it be. Quite
simply, the FISC is not a forum for adversarial litigation, nor should
it be.
This amendment extends the rationale that the answer to any question
during this debate is ``have the FISC look at it.'' The role of the
FISC is vitally important, but the FISC is not the answer to every
question during this debate. Misguided attempts to expand the FISC to
be the purported solution to any alleged problem with terrorist
tracking are impractical, imperceptive, and inappropriate.
We are long past the time for guesswork, and we need to support the
tried-and-true bipartisan immunity provision as appropriate remedy to a
critical problem. I reiterate my strenuous objection to this amendment,
and I urge my colleagues not to support an amendment which introduces
far too many unanswered questions into a debate which needs none.
Amendment No. 3912
With regard to amendment No. 3912 regarding bulk collection, this
amendment did pass out of the Judiciary Committee, but it passed on a
10-to-9 party-line vote after only four minutes of discussion. This
Judiciary substitute was tabled by the full Senate by a 60-to-36 vote,
and this amendment is one of the reasons it was.
There is confusion about the need for this amendment. Does it
preclude bulk collection or not? The text of the amendment seems to
indicate that no bulk collection is permitted. Yet the author of the
amendment states there is an exception for military operations. I have
read the amendment, and I don't see any exception listed. Perhaps he is
referencing comments in the Judiciary Committee report. But committee
reports are not law.
The Attorney General and Director of National Intelligence have
carefully reviewed this amendment, and they have stated that if this
amendment is in a bill which is presented to the President, they will
recommend that the President veto the bill, and I agree with that
recommendation.
Amendment No. 3979
With regard to the Feingold amendment No. 3979 on sequestration of
U.S. person communications, I am very concerned about the substance of
this amendment, as are many of my colleagues. In addition, the Attorney
General and Director of National Intelligence have thoroughly reviewed
this amendment, and they recently sent a letter to the Senate stating:
This amendment would eviscerate critical core authorities
of the Protect America Act and S. 2248. Our prior letter and
Statement of Administration Policy explained how this type of
amendment increases the danger to the Nation and returns the
intelligence community to a pre-September 11th posture that
was heavily criticized in congressional reviews. It would
have a devastating impact on foreign intelligence
surveillance operations. It has never been the case that the
mere fact that a person overseas happens to communicate with
an American triggers a need for court approval. Indeed, if
court approval were mandated in such circumstances, there
would be grave consequences for the intelligence communities'
efforts to collect foreign intelligence.
The last part of this has been underlined.
Accordingly, if this amendment is part of a bill that is
presented to the President, we, as well as the President's
other senior advisors, will recommend that he veto the bill.
Unlike many of the amendments we have debated here on the Senate
floor, this amendment did not receive a vote in either the Intelligence
or Judiciary Committees. Not that that is limiting, but the amendment
itself is not a healthy one on its face. Yet this amendment is among
the most drastic in terms of affecting the efficiency and effectiveness
of our intelligence collection processes. This amendment imposes
tremendous restrictions in which the intelligence community is limited
in what information they can receive and how this information can be
shared.
That is what I think we were shocked to find when 9/11 occurred, that
our various intelligence community organizations--FBI, CIA, et cetera--
were not sharing information. Now that we have solved that problem, why
go back?
The massive reorganization of our collection techniques which would
be required by this amendment is certainly obvious. The author of the
amendment has recognized this as well, previously stating:
I do understand this amendment imposes a new framework that
may take some time to implement.
We need to remember the purpose of this bill is, and always has been,
to enable the intelligence community to target foreign terrorists and
spies overseas. But in order to make sure we are not missing valuable
intelligence, we need to get all of a target's communications, not only
when that target is talking with other people overseas, and that may
mean intercepting calls with people inside the United States. In fact,
those may be the most important calls to try to prevent an attack in
the United States.
I understand there is concern about the impact of foreign targeting
on U.S. persons. But we have a lot of protections built into this new
bill that came out of the Intelligence Committee on a 13-to-2
bipartisan vote. I have been to this floor on numerous occasions and
highlighted how the Foreign Intelligence Surveillance Court's role in
all aspects of foreign intelligence collection is being greatly
expanded by this bill, far beyond the 1978 FISA statute.
In addition, the Senate agreed to an amendment by Senator Kennedy
that would make it clear you cannot use authorities in this bill to
require communications where the sender and all intended recipients are
known to be in the United States. We shouldn't go any farther.
The intelligence community must use minimization procedures. Our
analysts are familiar with these procedures. They have used them for a
long
[[Page S836]]
time without any known abuses. Yet the scope of this amendment seems to
represent no confidence in the minimization procedures used by the U.S.
Government. Keep in mind, these minimization procedures were enacted
over 30 years ago, and this bill will authorize the FISC to review and
approve them for the first time.
This bill goes farther than ever before in our history in striking a
balance between intelligence collection and protection of civil
liberties. Personally, I am proud of this bill. I think all in the
Intelligence Committee should have stuck with it, and we should not be
trying to amend it at this point, especially with amendments that
aren't going to work and will diminish our ability to get the
intelligence we need to protect our citizens. Now I believe that in
this bill we are protecting the civil liberties of ordinary Americans,
but we also need to make sure our intelligence community isn't blind to
information which may ultimately prove to be critical.
Section (a)(1) of this amendment would not allow the collection of
certain communications if the Government knows before acquisition a
communication is to or from a person reasonably believed to be in the
United States. The Government knows when it targets foreign citizens in
foreign countries that they might call or be called by U.S. persons.
These are called ``incidental communications.'' Under the limitations
in this amendment, the Government could not initiate the collection in
the first place under many circumstances. This essentially undoes the
authority granted in section 703 of this bill and will cause us to go
deaf to our enemies.
The Director of National Intelligence has told us before that speed
and agility are essential in tracking terrorists and preventing
terrorist attacks. Yet even if collection could somehow begin under the
dangerous restrictions in this amendment, analysts would have to go
through hoop after hoop after hoop to use information that has foreign
intelligence value. Remember, if it doesn't have foreign intelligence
value, any U.S. person information would already have been minimized.
I do not understand why we would set up unnecessary roadblocks and
slow this process down when we already have so many substantial
protections in place. The Director of National Intelligence has stated
this amendment would cause significant operational problems for the
intelligence community that could lead to intelligence gaps. I affirm
this statement. Knowing this, it would be irresponsible to handcuff our
intelligence community with these additional restrictions.
I urge my colleagues to join me in opposing this dangerous amendment.
I emphasize again: We have brilliant, knowledgeable, well-trained,
decent, honorable people who are here, no matter who is President, in
the business of protecting our citizens from terrorist acts. And this
bill, which passed 13 to 2 on a bipartisan vote out of the Intelligence
Committee, provides more checks on these good people than the FISA Act
of 1978 did, and that act has worked very well through all those years.
The reason we are doing this bill is because we are in a new age, with
new methods of communication that simply were not covered by the 1978
act, to put it in simple terms.
This is a complex thing, and I think we have to be very careful if we
go beyond what the Intelligence Committee bill has said we should do.
It was a bill worked out after months of hearings and work by the
Intelligence Committee. I believe, in the Senate, I have probably been
on the Intelligence Committee longer than anybody else, and I want to
protect our people too. I want to protect them in a multiplicity of
ways. But one of the most important ways we can protect them in this
day of Islamic fascism is to give them the tools to do it and not
restrict and hamper them from doing it--keeping in mind that they are
honest, non-partisan citizens who are more interested in protecting
Americans and getting the information we need to protect everybody than
the partisans and sometimes uninformed people make them out to be.
Yes, any administration can put the top-level people in, but it is
those who collect this information on a daily basis, minimize this
information when it needs to be minimized, and work to do it in an
honorable fashion who do the work. We should not be tying their hands
and hampering them from getting the work done in this day and age when
we have so many problems, and it looks to me as if we are going to have
them for many years to come.
Mr. President, I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Rhode Island.
Amendment No. 3919
Mr. WHITEHOUSE. Mr. President, I am glad to have had the occasion to
be on the floor and hear the words of the very distinguished Senator
from Utah, who has served with such distinction on the Intelligence
Committee for so long, but I would respond to him first that this much-
touted 13-to-2 vote in the Intelligence Committee, as shown by the
record of the additional views of the members of the Intelligence
Committee, reflected the consensus of the Intelligence Committee that
this was a work in progress; that it should go on to the Judiciary
Committee, which was its next stop, and then to the floor. There was no
sense that the work on the bill should stop at the time it left the
Intelligence Committee.
Indeed, in the 13-to-2 vote, there were 9 Senators who offered
additional views suggesting changes or differences in the legislation.
So I don't think it would be wise or appropriate for this body to take
a look at what the Intelligence Committee did and say that because the
number appears to be 13 to 2 on the surface that we are not going to do
our job of continuing to work on this work in progress.
In that spirit, I rise today to support amendment No. 3919, on good
faith determinations, offered by Senators Feinstein and Nelson. In the
divisive debate we are having over immunity, Senator Feinstein's
amendment is a commendable effort to find middle ground, to which
Senator Feinstein has brought great diligence and care. Senator Specter
and I have offered a broader approach, but I also support the
Feinstein-Nelson amendment.
This amendment goes forward with the first half of Specter-
Whitehouse. It provides for an independent judicial review of the
companies' good faith. Specter-Whitehouse then provides for
substitution of the Government in place of the companies, which would
protect plaintiffs' legitimate rights to continue legitimate
litigation, including the right to conduct discovery.
Substitution also avoids the problem of uncompensated congressional
termination of ongoing litigation--a separation of powers problem.
Senator Feinstein's alternative at least provides for the bare minimum
of a judicial determination whether the defendant companies were acting
in compliance with the law or with the reasonable good faith belief
that they were in compliance. I would note this is probably the lowest
possible standard. We don't even require companies to have been acting
within the law. All we require in this amendment is that they have a
reasonable and good faith belief they were acting within the law.
As I have said before, both of the all-or-nothing approaches we are
presented with here are flawed. Full immunity would strip the
plaintiffs of their day in court and take away their due process rights
without any judicial determination that the companies acted in good
faith. That is not fair. Nothing suggests this isn't legitimate
litigation, and it is wrong to take away a plaintiff's day in court
without a chance to show why doing so may not be warranted.
I hope in this Chamber we can all agree that if the companies did not
act reasonably and in good faith they shouldn't get protection. If we
agree on that, the question becomes where the good faith determination
should be made. I think it should be in court, and that is where
Senator Feinstein's amendment puts it--in this case, the FISA Court.
First, it should not be here. We in Congress are not judges, and good
faith is a judicial determination. We should leave this key
determination to the judicial branch of Government. The companies have,
of course, asserted that they acted in good faith. But we surely should
not rely on one side's assertions in making a decision of this
importance.
Moreover, most Senators have not even been read into the classified
materials that would allow them to reach a fair conclusion. This body
is literally incapable of forming a fair opinion
[[Page S837]]
without access by most Members to the facts. So this is the wrong place
to have it. We need to provide a fair mechanism for a finding of good
faith by a proper judicial body with the proper provisions for secrecy,
which the FISA Court has. If we do not do this, we are simply acting by
brute political force, and doing so in an area where there are
significant constitutional issues. Congress cutting off the ongoing
work of the judicial branch may well violate the boundary that keeps
the legislative and judicial branches separate--a cornerstone of our
Constitution.
In an opinion written by Justice Scalia, the U.S. Supreme Court said
that the Framers of the Federal Constitution had what they called ``the
sense of a sharp necessity to separate the legislative from the
judicial power, prompted by the crescendo''--was the word they used--
``of legislative interference with private judgments of the courts.''
If there were ever a case of legislative interference with private
judgment of the courts, this is it. On the other hand, consider the
fact that the Government has forbidden these defendants to defend
themselves. By invoking the state secrets privilege, the Government has
gagged the companies. In my view, that is not fair either, particularly
if the Government put these companies in this mess in the first place.
So both of the all-or-nothing approaches are flawed.
I think Senator Specter and I have come up with the best answer:
substitution. But Senator Feinstein's amendment at least requires the
FISA Court to make an initial determination that the companies either
did not provide assistance to the Government--obviously, if they did
not do anything, they should not be liable--or were actually complying
with the law. Clearly, if they complied with the law, they should not
be liable--or were at least acting with a reasonable good-faith belief
that they were complying with the law--again, the lowest possible
standard. If we cannot agree on this, then we have really taken our
eyes off of our duties. The difference then becomes that once that
good-faith determination is made, the Specter-Whitehouse amendment
would lead to substitution, whereas the Feinstein-Nelson amendment
would lead to a termination of the claims.
Both of these approaches are better than the all-or-nothing
alternative we otherwise face, and both share the same goal: to use
existing procedures and existing rules and existing courts to unsnarl
this litigation and move it toward a just and a proper conclusion.
I urge my colleagues to support both the Specter-Whitehouse and the
Feinstein-Nelson amendments.
I make one final point. Senator Hatch pointed out that the people who
serve us in our intelligence community are honorable, are well trained,
are intelligent, are decent, and are trying to do the right thing. I do
not challenge any of that.
As the U.S. attorney, I worked with FBI agents day-in and day-out,
Secret Service agents, Drug Enforcement Administration agents, Alcohol,
Tobacco and Firearms agents--all decent, honorable, hard working, well
trained, trying to do the right thing. In that environment, they are
all very comfortable that the structure we have put in place for
domestic surveillance, to protect American's rights, is a useful thing,
it is important infrastructure of Government.
I see what we are trying to do now not as a criticism of the people
in the intelligence community but, rather, as being an attempt to build
out the infrastructure, the infrastructure that balances freedom and
security in this new area of international surveillance, in just the
same way we put restrictions on our agents at home.
As attorney general, I actually had to personally get the wiretaps
for the State of Rhode Island from the presiding judge of the superior
court. I would say the same thing about the Rhode Island State troopers
with whom I worked in those cases.
Agents and police officers who have this responsibility do not resent
the fact that they are given a structure to work within. I doubt that
the intelligence community would resent a sensible measure that would
allow a judicial determination before an American company has a finding
of good faith made about it.
I yield the floor, and I suggest the absence of a quorum.
The PRESIDING OFFICER (Ms. Klobuchar). The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. FEINGOLD. I ask unanimous consent that the order for the quorum
call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendment No. 3979
Mr. FEINGOLD. Madam President, today I want to address several of the
pending amendments to the FISA legislation, and I will indicate the
amendment number of each one as I discuss it. First is what we call the
Feingold-Webb-Tester amendment No. 3979. I wish to address some of the
arguments that have been made in opposition to Feingold-Webb-Tester and
to set the record straight about what the amendment does. The Senator
from Missouri has suggested it would cut off all foreign intelligence
collection because the Government would not be able to determine in
advance whether communications are foreign to foreign. This is
preposterous. The whole point of the amendment is to allow the
Government to acquire all communications of foreign targets when it
does not know in advance whether they are purely foreign or have one
end in the United States.
The administration also argues we should not pass the Feingold-Webb-
Tester amendment because it would be difficult and time consuming to
implement. That is no reason to oppose the amendment. I understand the
amendment imposes a new framework, and that is precisely why the
amendment grants the Government up to a year before it goes into
effect.
I also wish to make clear that the amendment does not force the
Government to determine the location of every person and every e-mail
the Government acquires, contrary to what has been suggested. The
amendment only requires that the Government determine whether one end
of a communication is in the United States where reasonably
practicable, based on procedures approved by the FISA Court. In some
instances, that would be easy to do, while in others it would not be
feasible at all. The court-approved procedures will take those
differences into account.
It is also not true that the amendment would harm our nonterrorism
foreign intelligence operations. This amendment leaves intact the
warrantless acquisition of any foreign-to-foreign communications and
any communications where the Government doesn't know in advance whether
they are to or from people in the United States. Even for
communications where the Government knows they involve Americans in the
United States, no court order is actually required for communications
relating to terrorism or anyone's safety.
This is much broader than the pre-Protect America Act law. None of
this would have been possible 7 months ago. Let's not forget the
justification for this legislation has always been about terrorism and
foreign-to-foreign communications. Last month, the Vice President
defended the Protect America Act by talking about ``one foreign citizen
abroad making a telephone call to another foreign citizen abroad about
terrorism.'' The Feingold-Webb-Tester amendment allows those calls to
be monitored without a warrant.
The Feingold-Webb-Tester amendment allows the Government to get the
information it needs about terrorists and about purely foreign
communications, while providing additional checks and balances for
communications between people in the United States and their overseas
family members, friends, and business colleagues. I urge my colleagues
to support the Feingold-Webb-Tester amendment.
Let me next turn to Amendment No. 3912, which has been referred to as
the bulk collection amendment. I wish to again stress the importance of
my amendment prohibiting the bulk collection of Americans'
international communications. The bill we are debating is supposedly
intended to permit monitoring of foreign-to-foreign communications and
the tracking of terrorists overseas without a warrant. It is not
supposed to allow the Government to collect all communications into or
out of the United States, but
[[Page S838]]
that is exactly what the Government could seek to do with these
authorities, which is why this amendment is critical. I have yet to
hear any real arguments against it.
The DNI's recent letter opposing the amendment fails to come up with
any substantive arguments. Instead, it describes hypothetical
situations that clearly wouldn't be affected by the amendment. In order
to protect the international communications of innocent Americans at
home, the amendment simply requires that the Government is seeking
foreign intelligence information from its targets. In the only examples
cited in the letter--a neighborhood or group of buildings or geographic
area that the U.S. military is about to invade--clearly, the Government
has that purpose. The notion that the Government could not make a good-
faith certification to the court that it is seeking foreign
intelligence, which is all this amendment requires, is simply
ludicrous. What is telling about the DNI's letter, besides that it
includes no real arguments against the amendment, is what it does not
say. It does not refute the danger this amendment is intended to
address: the bulk collection of all communications between the United
States and Europe or Canada or South America or, indeed, the world.
The DNI has testified that the PAA would authorize that kind of
massive, indiscriminate collection of Americans' communications, and
the administration has never denied that this bill could, too, unless
we pass this amendment. In fact, this letter does nothing to reassure
the American people the Government could not and would not collect all
their international communications. Worse, the letter argues that a
prohibition on that kind of massive collection would not ``appreciably
enhanc[e] the privacy interests of Americans.'' If the DNI does not
think the privacy interests of Americans would be affected by the
collection of all their international communications, potentially
vacuuming up their communications not just with foreigners overseas but
with Americans overseas as well, then that is all the more reason to be
concerned.
Serious constitutional issues are at stake. The administration is
effectively telling us it intends to ignore them.
Let me also respond to a statement by the chairman of the
Intelligence Committee last week that a dragnet of all international
communications of Americans would probably violate the fourth
amendment. I am pleased to hear the chairman acknowledge that the
surveillance the administration would like to conduct would violate the
constitutional rights of Americans, but how could we possibly expect
this administration--an administration that has already demonstrated
indifference to Americans' privacy and has already said that bulk
collection would be ``desirable''--to hold back. Nor should we rely on
the FISA Court to stop this, as the chairman has suggested. If Congress
believes something is unconstitutional, we have absolutely no business
authorizing it. We have been warned, and now we need to act by passing
my modest bulk collection amendment.
I reserve the remainder of my time on amendment No. 3902.
As to the Dodd-Feingold immunity amendment No. 3907, I am pleased to
join my colleague in offering this amendment to strike the immunity
provision. I ask unanimous consent that I be yielded 15 minutes to
speak on the Dodd amendment and that the time be charged to the
proponents of the amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. FEINGOLD. I thank the Senator from Connecticut.
Amendment No. 3907
I strongly support Senator Dodd's amendment to strike the immunity
provision from this bill. I thank him for his leadership on the issue.
I offered a similar amendment in the Judiciary Committee, and I
supported a similar amendment in the Intelligence Committee when it was
offered by the Senator from Florida, Mr. Nelson. Congress should not be
giving automatic retroactive immunity to companies that allegedly
cooperated with the President's illegal NSA wiretapping program. This
provision of the bill is both unnecessary and unjustified, and it will
undermine the rule of law. Retroactive immunity is unnecessary because
current law already provides immunity from lawsuits for companies that
cooperate with the Government's request for assistance, as long as they
receive either a court order or a certification from the Attorney
General that no court order is needed and the request meets all
statutory requirements.
Companies do not need to do their own analysis of the court order or
the certification to determine whether the Government is, in fact,
acting lawfully. But if requests are not properly documented, FISA
instructs the telephone companies to refuse the Government's request
and subjects them to liability if they instead decide to cooperate.
This framework, which has been in place for 30 years, protects
companies that act at the request of the Government, while also
protecting the privacy of Americans' communications. Some supporters of
retroactively expanding this provision argue that the telephone
companies should not be penalized if they relied on high-level
Government assurance that the requested assistance was lawful. As
superficially appealing as that argument may sound, it utterly ignores
the history of the FISA statute.
Telephone companies have a long history of receiving requests for
assistance from the Government. That is because telephone companies
have access to a wealth of private information about Americans,
information that can be a very useful tool for law enforcement. But
that very same access to private communications means telephone
companies are in a unique position of responsibility and public trust.
Yet before FISA, there were basically no rules to help the phone
companies resolve this tension, between the Government's request for
assistance in foreign intelligence investigations and the companies'
responsibilities to their customers. This legal vacuum resulted in
serious Government abuse and overreaching.
The Judiciary Committee has heard testimony about this system from
Mort Halperin, a former Nixon administration official who was himself
the subject of a warrantless wiretap and was involved in the drafting
of the FISA law in the 1970s. He testified that before FISA:
Government communication with the telephone company . . .
could not have been more casual. A designated official of the
FBI called a designated official of [the company] and passed
on the phone number. Within minutes all of the calls from
that number were being routed to the local FBI field office
and monitored.
Not surprisingly, this casual ad hoc system failed to protect
Americans' privacy. The abuses that took place are well documented and
quite shocking. With the willing cooperation of the telephone
companies, the FBI conducted surveillance of peaceful antiwar
protesters, journalists, steel company executives, and even Martin
Luther King, Jr., an American hero whose life we recently celebrated.
So Congress decided to take action. Based on the history of and
potential for Government abuses, Congress decided it was not
appropriate for telephone companies to simply assume that any
Government request for assistance to conduct electronic surveillance
was legal.
Let me repeat that. A primary purpose of FISA was to make clear once
and for all that the telephone companies should not blindly cooperate
with Government requests for assistance. At the same time, however,
Congress did not want to saddle telephone companies with the
responsibility of determining whether the Government's request for
assistance was a lawful one. That approach would leave the companies in
a permanent state of legal uncertainty about their obligations. So
Congress devised a system that would take the guesswork out of it
completely. Under that system, which is still in place today, the
companies' legal obligations and liability depends entirely on whether
the Government has presented the company with a court order or a
certification stating that certain basic requirements have been met.
If the proper documentation is submitted, the company must cooperate
with the request and will be immune from liability. If the proper
documentation has not been submitted, the
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company must refuse the Government's request or be subject to possible
liability in the courts.
AT&T, which was the only telephone company in existence at the time
in the 1970s, was at the table when FISA was drafted. As Mr. Halperin
described in his testimony, the company:
received the clarity that it sought and deserved. The rule,
spelled out clearly in several places in the legislation and
well understood by all, was this: If [the phone company]
received a copy of a warrant or certification under the
statute, it was required to cooperate. If it did not receive
authorization by means outlined in the statute, it was to
refuse to cooperate and was to be subjected to state and
federal civil and criminal penalties for unlawful acquisition
of electronic communications.
The telephone companies and the Government have been operating under
this simple framework for 30 years. Companies have experienced, highly
trained and highly compensated lawyers who know this law inside and
out. In view of this history, it is inconceivable that any telephone
companies that allegedly cooperated with the administration's
warrantless wiretapping program did not know what their obligations
were. It is just as implausible that those companies believed they were
entitled to simply assume the lawfulness of a Government request for
assistance. This whole effort to obtain retroactive immunity is based
on an assumption that does not hold water.
Quite frankly, the claim that any telephone company that cooperates
with a Government request for assistance is simply acting out of the
sense of patriotic duty doesn't fare much better. Recently, we learned
that telecommunications companies actually have cut off wiretaps when
the Government failed to promptly pay its bills.
The Department of Justice Office of Inspector General released a
report last month finding that ``late payments have resulted in
telecommunications carriers actually disconnecting phone lines
established to deliver surveillance to the FBI, resulting in lost
evidence.'' Since when does patriotic duty come with a price tag?
Evidently, assisting the Government's criminal intelligence
investigation efforts fell somewhere below collecting a paycheck on the
companies' lines of priorities.
Some of my colleagues have argued the telephone companies alleged to
have cooperated with the program had a good-faith belief their actions
were in accordance with the law. But there is an entire statute in
addition to the certification provision that already provides telephone
companies with a precisely defined good-faith defense. Under this
provision, which is found in section 2520 of title 18, if the company
is relying in good faith on a court order or other statutory
legislative authorization, they have a complete defense to liability.
This is a generous defense, but as generous as it is, it is not
unlimited. The court must find that the telephone company determined in
good faith that there was a judicial, legislative, or statutory
authorization for the requested assistance.
I also wish to address the argument that retroactive immunity is
necessary because the telephone companies can't defend themselves in
court. When I hear this argument, I can't help but think that this
administration has staged the perfect crime: enlist private companies
to allegedly provide assistance in an illegal Government program, then
prevent any judicial inquiry into the program by claiming a privilege--
the so-called state secrets privilege--that not only shields your own
actions from scrutiny but enables the companies to evade judicial
scrutiny as well by claiming that they are defenseless. All the
administration needs to get away with this is Congress's blessing.
That is exactly why immunity is the wrong solution. Think about what
we would be doing. We would be saying that in matters of national
security, you can break the law with impunity because the courts can't
handle national security materials. This is outrageous. Do we really
want to create a law-free zone for crimes that involve national
security matters? If the Government's use of the state secrets
privilege is interfering with holding companies accountable for alleged
violations of the law, the solution isn't to shrug and just give up on
accountability; the solution is to address the privilege head-on and
make sure it doesn't become a license to evade the laws we have passed.
In any event, the notion that the Federal courts can't handle
national security matters is insulting to the judges this body has seen
fit to confirm, and it is contrary to the facts. Cases involving
classified information are decided routinely by the Federal courts.
That is why we have a statute--the Classified Information Procedures
Act--to govern how courts handle classified materials. Pursuant to that
statute, courts have in place procedures that have successfully
protected classified information for many years. There is no need to
create a ``classified materials'' exception to our justice system.
That brings me to another issue. I have been discussing why
retroactive immunity is unnecessary and unjustified, but it goes beyond
that. Granting companies that allegedly cooperated with an illegal
program this new form of automatic retroactive immunity undermines the
law that has been on the books for decades, a law that was designed to
prevent exactly the type of actions that allegedly occurred here.
Remember, telephone companies already have absolute immunity if they
complied with the applicable law, and they have an affirmative defense
if they believed in good faith that they were complying with that law.
So the retroactive immunity provision we are debating here is necessary
only if we want to extend immunity to companies that did not comply
with the applicable law and did not even have a good-faith belief that
they were complying with it. So much for the rule of law. Even worse,
granting retroactive immunity under these circumstances will undermine
any new laws we pass regarding Government surveillance. If we want
companies to follow the law in the future, it certainly sends a
terrible message, and sets a terrible precedent, to give them a ``get
out of jail free'' card for allegedly ignoring the law in the past.
I find it particularly troubling when some of my colleagues argue
that we should grant immunity in order to encourage the telephone
companies to cooperate with the Government in the future. Let's take a
close look at that argument.
Telephone companies are already legally obligated to cooperate with a
court order, and as I have mentioned, they already have absolute
immunity for cooperating with requests that are properly certified. So
the only thing we would be encouraging by granting immunity here is
cooperation with requests that violate the law. That is exactly the
kind of cooperation FISA was supposed to prevent.
Let's remember why: These companies have access to our most private
conversations, and Americans depend on them to respect and defend the
privacy of these communications unless there is clear legal authority
for sharing them. They depend on us to make sure the companies are held
accountable for betrayals of that public trust. Instead, this immunity
provision would invite the telephone companies to betray that trust by
encouraging cooperation with a legal Government program.
Since 9/11, I have heard it said many times that what separates us
from our enemies is respect for the rule of law. Unfortunately, the
rule of law has taken it on the chin from this administration. Over and
over, the President and his advisers have claimed the right to ignore
the will of Congress if and when they see fit. Now they are claiming
the same right for any entity that assists them in that effort. It is
time for Congress to state clearly and unequivocally: When we pass a
law, we mean what we say, and we except the law to be followed. That
goes for the President, it goes for the Attorney General, and it goes
for the telephone companies. The rule of law is not less important
after 9/11. We can and we must defeat al-Qaida without breaking the law
or sacrificing Americans' basic rights.
We have a choice. The Senate can stand up for the rule of law and let
these cases go forward in the courts or we can decide to give our
blessing to an administration that broke the law and the companies that
allegedly helped it, and we can signal that we stand ready to bail them
out the next time they decide to ignore the law. I urge my colleagues
not to take that step. Support the rule of law by voting in favor of
the Dodd-Feingold amendment No. 3907.
[[Page S840]]
I again thank my colleague from Connecticut for his tremendous
leadership on this issue. It has been extremely helpful in this effort.
I sincerely thank him.
I ask unanimous consent that my remaining time be reserved.
Madam President, I yield the floor.
The PRESIDING OFFICER. The Senator from Connecticut is recognized.
Mr. DODD. Madam President, before our colleague from Wisconsin leaves
the floor, let me thank him for his leadership on this issue, along
with many others associated with this piece of legislation: the reverse
targeting and the bulk collection issues which he has raised, which
seem so obvious and so clear that you wonder why they even have to be a
subject of debate. The clear reaction, in fact, from leading
authorities, including those of the intelligence agencies, has been to
state categorically that the very actions he wants to exclude from this
legislation are prohibited under law. Reverse targeting is
unconstitutional, and bulk collection is unattainable. But some in the
administration have said: Were bulk collection possible, we believe we
have the right to do it. The idea of bulk collection without following
the rule of law should violate the sensibilities of every single Member
of this body.
This debate and this discussion are very important. This has gone on
now since back in December--actually, before then. The Senator from
Wisconsin sits on both the Judiciary Committee and the Intelligence
Committee, and so he has been deeply involved in these issues for a
long time.
What I wish to state at the outset is that these amendments we are
offering should not be the subject of some sort of political divide
between Democrats, Republicans, liberals, conservatives, moderates, or
whatever definitions one wants to apply to the people who serve here.
This is about the rule of law. It is about the Constitution of the
United States, and the idea that this issue and debate should somehow
be divided along those lines ought to be offensive to every single
Member of this body. Every single one of us, on the day we raise our
right hand and take the oath of office, swear to uphold the
Constitution of the United States. That is nothing less than what we
are engaged in with this debate.
We have been asked to subscribe to the false dichotomy that in order
for us to be more secure as a nation, we must give up some of our
rights. The Senator from Wisconsin and the Senator from Connecticut
believe very firmly that quite the opposite is true: that if you begin
to give up rights, you become less secure, as a people and as a nation.
Our deep concern is that that is exactly the path we seem to be
following these days with the refusal to adopt the Feingold amendments
in dealing with reverse targeting and bulk collections. It is what I am
fearful may be the case when we try to strike title II of the Foreign
Intelligence Surveillance Act and prohibit the retroactive immunity
being sought by the administration and by a handful of telephone
companies.
Let me remind our colleagues that when this proposal was first made
to the Intelligence Committee, the proposal was to grant immunity to
anyone involved in the collection of this information, including those
who allegedly authorized it at the executive branch. So while I am
critical of what is in the Intelligence Committee bill that has been
brought to us by my friend from West Virginia and my friend from
Missouri, Senator Rockefeller and Senator Bond, I wish to begin by
thanking them for having rejected the administration's earlier request
that there be broad-based immunity granted to everyone involved in
warrantless wiretapping. But it is instructive to know what the
administration wanted at the outset: complete immunity for everyone
associated with this vacuum-cleaning operation, who eavesdropped on
millions of phone conversations, e-mails, and faxes over the last 5
years.
Why were they seeking immunity for everyone involved in this? I think
the answer becomes abundantly clear. There is a great concern that the
courts may conclude that, in fact, what was done was illegal and that
those who participated in it might be held liable.
Again, I thank the Intelligence Committee for narrowing this request.
However, title II of this bill would still provide telecommunications
corporations retroactive immunity for their warrantless and possibly--
possibly--illegal spying on their very customers.
Much more than a few companies and a few lawsuits are at stake. Equal
justice is at stake--justice that does not place some corporations
outside of the rule of law.
Openness is at stake--an open debate on security and liberty, and an
end to warrantless wiretapping of Americans.
Senator Feingold laid out the history of FISA in eloquent terms this
afternoon, going back to the 1970s and describing the genesis of this
law that has been amended, I might add, many, many times over the last
30 years. It has been amended periodically to conform to the emerging
technologies, the emerging abilities of those who would do us harm, and
the emerging strategies that would allow us to collect the information
that would minimize their ability to do just that.
So over the years, this body has been asked to modify that law.
Almost without exception, I think it is important to point out, this
body has amended that law almost unanimously, because all of us
recognize that it is critically important that we have the ability to
determine who would do us harm, how they would do that harm, and to
stop it before it happens. There is not a single Member of this body
who is not deeply committed to that goal. We all understand and are
deeply committed to the idea that we ought to do everything we can to
protect ourselves. But we also understand, and have since the 1970s,
the importance not only of gathering the information from those who
would do us injury but simultaneously doing that which is also critical
for our survival as a nation; that is, protecting the liberties and
rights of this country.
They are what makes us unique as a nation. We were really the first
Nation that insisted that we were a nation of laws and not men. It was
a unique idea in the annals of recorded history; but at the founding of
this great Republic, we declared that we were going to do things
differently. In fact, many have argued over the years that if we were
looking for pure efficiency, this is the last form of government we
would have designed. But the Framers of our Constitution were
interested in other things than just efficiency. Had efficiency been
the goal, they certainly would have thought of a more streamlined
system. But they set up a system that not only determined what we did
but how we did things: establishing coequal branches of Government--an
executive, legislative, and judicial branch--coequal branches of
Government, and insisting that there be checks and balances, because
the Framers had been through a system in which a king and a handful of
people decided the fate of not only their own nation but the colonies
they controlled. So they set up this cumbersome, less efficient system
because they were deeply determined to protect the rule of law that
never allowed one individual or a handful of individuals decide the
fate of a nation.
So it is important to understand the genesis of this tension which
has existed in our country for more than 200 years: protecting our
security and protecting our liberties. I am not suggesting that it is
always easy to strike the perfect balance, but over the years we have
tried as a nation, from one generation to the next, to try to keep that
balance, that tension, in place so that not one side or the other would
dominate. In our time, the challenge is to balance our need to gather
information with the protection of privacy and the rights that all
Americans seek, regardless of geography or ideology.
That has been the tension that confronts us and that is what brings
me to this debate, calling upon my colleagues to support the amendment
Senator Feingold is offering to strike title II of this legislation.
Retroactive immunity stands against the very principles Senator
Feingold has outlined, which I have tried to describe. Under
retroactive immunity, the law will forbid some of our fellow citizens
from having their day in court.
On what basis are we asked to pass retroactive immunity? On trust.
There are classified documents, we are told, that prove the case beyond
the shadow of a doubt; but, of course, we are in the allowed to see
them. I have served in
[[Page S841]]
this body for 27 years. Yet I am not allowed to see these documents.
Retroactive immunity allows the President to stand up and say: Trust
me, I know what I am talking about, and you don't.
There is only one way to settle the issue at stake today. Not simply
on trust, not the opinion of a handful of individuals--as much as we
may admire or like them--but in our courts. We are not judges. We are
members of a legislative body.
Real judges and juries--whose courts ought to be our pride, not our
embarrassment--deserve to do their jobs and decide these cases. By
striking this title of the bill, we would allow them to.
That is all we are asking. Let's have the courts decide. We are not
here to assign guilt or innocence. That is not our job as legislators.
We are here to hold open the courthouse door, to ensure a fair hearing
to American citizens seeking redress. I, for one, will accept whatever
verdict results.
This is not a Democratic or Republican issue; this is a rule-of-law
issue. It is about striking the right balance between liberty and
security. I have absolutely rejected, as I said a few moments ago, the
false dichotomy that tells us to choose one over the other. And If a
Democratic President were seeking to grant retroactive immunity, I
would object as stridently and passionately as I am this afternoon.
This should not be a partisan issue. We should all be in favor of
allowing our courts to perform their constitutional responsibility to
determine whether these companies should be held accountable.
I believe that when surveillance is fully under the rule of law,
Americans will only be more secure. To claim otherwise is an insult to
our intelligence, our common sense, and our proud tradition of law.
I don't know how many colleagues have seen the movie called ``A Man
For All Seasons.'' It is the story of St. Thomas More, who was the only
individual in history that I know of who achieved the trifecta of being
a lawyer, a politician, and a saint--a rare combination in any
generation. In the movie, St. Thomas More was asked if he would be
willing to cut down every law in England to get his hands on the devil.
More answered: Absolutely not. He said:
When the last law was down, and the Devil turned 'round on
you, where would you hide, the laws all being flat? This
country is planted thick with laws, from coast to coast--
Man's laws, not God's! And if you cut them down . . . do you
really think you could stand upright in the winds that would
blow then?
Those laws know no secrecy, Madam President, they know no
distinctions for power or wealth. They live, that is, in openness. And
when that openness ha
