Remarks
of U.S. Senator Russ Feingold
On the Amendment to the FISA Amendments Act to Strike Immunity
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July 8, 2008
Mr. FEINGOLD: Mr. President,
I strongly support Senator Dodd’s amendment to strike the immunity
provision from this bill, and I want to thank the Senator from Connecticut
for his leadership on this issue. Both earlier this year when the Senate
first considered FISA legislation and again this time around, he has
demonstrated tremendous resolve on this issue, and I have been proud
to work with him.
Now, Mr. President, some
have tried to suggest that the bill before us will leave it up to the
courts to decide whether or not to give retroactive immunity to the
companies that allegedly participated in the President’s illegal
wiretapping program. Make no mistake – this bill will result in
immunity being granted, because it sets up a rigged process with only
one possible outcome.
Under the terms of this bill,
a federal district court would evaluate whether there is substantial
evidence that a company received “a written request or directive
… from the Attorney General or the head of an element of the intelligence
community … indicating that the activity was authorized by the
President and determined to be lawful.”
But, Mr. President, we already
know from the report of the Senate Intelligence Committee that was issued
last fall that the companies received exactly such a request or directive.
That is already public information. So under the terms of this proposal,
the court’s decision would be predetermined.
As a practical matter, that
means that regardless of how much information the court is permitted
to review, what standard of review is employed, how open the proceedings
are, and what role the plaintiffs are permitted to play, the court will
essentially be required to grant immunity under this bill.
Now, proponents will argue
that the plaintiffs in the lawsuits against the companies can participate
in briefing to the court. This is true, but they are not allowed access
to any classified information. Talk about fighting with both hands tied
behind your back. Mr. President, the administration has restricted information
about this illegal wiretapping program so much that roughly 70 members
of this chamber don’t even have access to the basic facts about
what happened. So let’s not pretend that the plaintiffs will be
able to participate in any meaningful way in these proceedings -- in
which Congress has made sure that their claims will be dismissed.
This result is extremely
disappointing. It is entirely unnecessary and unjustified, and it will
profoundly undermine the rule of law in this country. I cannot comprehend
why Congress would take this action in the waning months of an administration
that has consistently shown contempt for the rule of law – perhaps
most notably in the illegal warrantless wiretapping program it set up
in secret.
Mr. President, we hear people
argue that telecom companies should not be penalized for allegedly taking
part in this illegal program. What you don’t hear is that current
law already provides immunity from lawsuits for companies that cooperate
with the government’s request for assistance, as long as they
receive either a court order or a certification from the Attorney General
that no court order is needed and the request meets all statutory requirements.
But if requests are not properly documented, FISA instructs the telephone
companies to refuse the government’s request, and subjects them
to liability if they instead decide to cooperate.
When Congress passed FISA
three decades ago, in the wake of the extensive, well-documented wiretapping
abuses of the 1960s and 1970s, it decided that, in the future, telephone
companies should not simply assume that any government request for assistance
to conduct electronic surveillance was appropriate. It was clear that
some checks needed to be in place to prevent future abuses of this incredibly
intrusive power – the power to listen in on people’s personal
conversations.
At the same time, however,
Congress did not want to saddle telephone companies with the responsibility
of determining whether the government’s request for assistance
was legitimate or not.
So Congress devised a system
that would take the guesswork out of it completely. Under that system,
which is still in place today, the companies’ legal obligations
and liability depend entirely on whether the government has presented
the company with a court order or a certification stating that certain
basic requirements have been met. If the proper documentation is submitted,
the company must cooperate with the request and is immune from liability.
If the proper documentation has not been submitted, the company must
refuse the government’s request, or be subject to possible liability
in the courts.
This framework, which has
been in place for 30 years, protects companies that comply with legitimate
government requests while also protecting the privacy of Americans’
communications from illegitimate snooping.
Granting companies that allegedly
cooperated with an illegal program the new form of retroactive immunity
that is in this bill undermines the law that has been on the books for
decades – a law that was designed to prevent exactly the type
of abuses that allegedly occurred here.
Even worse, granting retroactive
immunity under these circumstances will undermine any new laws that
we pass regarding government surveillance. If we want companies to follow
the law in the future, it sends a terrible message, and sets a terrible
precedent, to give them a “get out of jail free” card for
allegedly ignoring the law in the past.
Mr. President, just last
week a key court decision on FISA undercut one of the most popular arguments
in support of immunity -- that we need to let the companies off the
hook because the state secrets privilege prevents them from defending
themselves in court. A federal court has now held that the state secrets
privilege does not apply to claims brought under FISA. Rather, more
specific evidentiary rules in FISA govern. Shouldn’t we at least
let these cases proceed to see how this plays out, rather than trying
to solve a problem that may not even exist?
And that’s not all.
Mr. President, this immunity provision doesn’t just allow telephone
companies off the hook. It also will make it that much harder to get
to the core issue that I’ve been raising since December 2005,
which is that the President broke the law and should be held accountable.
When these lawsuits are dismissed, we will be that much further away
from an independent judicial review of this illegal program.
On top of all this, we are
considering granting immunity when roughly 70 members of the Senate
still have not been briefed on the President’s wiretapping program.
The vast majority of this body still does not even know what we are
being asked to grant immunity for. Frankly, I have a hard time understanding
how any Senator can vote against this amendment without this information.
I urge my colleagues to support
the amendment to strike the immunity provision from the bill.
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