Leahy Statement On FISA Legislation

Chairman Will Support Efforts To Strike Immunity Provisions

 

WASHINGTON (Wednesday, June 25, 2008) – Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) delivered the following remarks today as the Senate prepares to debate the FISA Amendments Act of 2008.  Leahy said he intends to oppose the Senate’s motion to proceed to the legislation, and that he will support efforts to strike provisions in the bill that fail to provide accountability for the Bush administration’s warrantless wiretapping program.  In November, the Judiciary Committee considered legislation to amend the Foreign Intelligence Surveillance Act of 1978, and the Senate debated the legislation, which Leahy opposed, in February.  The House of Representatives last week passed a revised version of the bill.  The Senate is expected to vote on amendments, including an amendment Leahy has co-sponsored to strike immunity provisions in the bill, and final passage of the bill Thursday.  For more on Leahy’s work on amending FISA, click here.

 

 

Statement Of Sen. Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee,
On FISA Amendments Act Of 2008

June 25, 2008

 

As Prepared

 

I have said since the beginning of this debate that I oppose legislation that does not provide accountability for the six years of illegal, warrantless wiretapping initiated and approved by this administration.  The bill presented to the Senate seems intended to result in the dismissal of ongoing cases against the telecommunications carriers that participated in the warrantless wiretapping program, without allowing a court ever to review whether the program itself was legal.  Thus, the bill would have the affect of ensuring that this administration is never called to answer for its actions – never held accountable in a court of law.  I do not support that result.

 

It is now almost seven years since this President began efforts to circumvent the law and, in violation of the provisions of the governing statute, the Foreign Intelligence Surveillance Act, engaged in a program of warrantless wiretapping.  I have said that I believe that conduct was illegal.  In running its program of warrantless surveillance, the administration relied on ends-oriented legal opinions prepared in secret and shown only to a tiny group of like-minded officials.  This ensured that the administration received the legal advice that it wanted.  A former head of the Justice Department’s Office of Legal Counsel described this program as a “legal mess.” And this administration wants to make sure no court ever reviews that legal mess.  The bill presented to the Senate seems designed to ensure that they get their wish.

 

The administration worked hard to ensure that Congress could not effectively review the program or its arguments for immunity.  Since the existence of this program became known through the press, the Judiciary Committee repeatedly tried to obtain access to the information its members needed to evaluate the administration’s legal arguments.  Indeed, Senator Specter, when he was chairman of the Judiciary Committee, prepared subpoenas to the telecommunications carriers to obtain information.  He sought information from the telecommunications carriers because the administration would not tell us directly what it had done.  But those subpoenas were never issued.  As Senator Specter himself has explained publicly, Vice President Cheney intervened with other Republican members of the Judiciary Committee to undercut Senator Specter and the Vice President was effective in preventing the Committee from voting on them. 

 

It was only just before the Intelligence and Judiciary Committees’ consideration of this bill that Judiciary Committee members finally obtained access to some of the documents we had long sought.  I remind you, though, that most members of this Chamber, most Senators being called upon to vote, have not seen those documents.  The Senators who have seen them have drawn very different conclusions.  All members should have received access to allow them to make informed judgments. 

 

There are public reports that at least one telecommunications carrier refused to comply with the administration’s request to cooperate with the warrantless wiretapping.  All Senators should have had the opportunity to know those facts so that they could make informed judgments whether there were legal concerns that other carriers should have raised.  Surely that objection raised a red flag for all involved.  It is clear that the administration did not want the Senate to evaluate the evidence and draw its own conclusions.  Again, it sought to avoid accountability.  Indeed, the Select Committee on Intelligence has not made an independent review of the illegality of the warrantless wiretapping program. 

 

I would have supported efforts to have the Government indemnify the telecommunications carriers for any liability incurred when they acted at the behest of the Government.  I also supported alternative efforts by Senator Specter and Senator Whitehouse to substitute the Government for the defendants in these cases – the phone companies – so that the cases could proceed to a determination on the merits.   These alternatives would have allowed judicial review of the legality of the administration’s actions.  They would have provided accountability for this administration.  This bill does not.

 

As I read the language of the bill, it is designed to have courts dismiss the pending cases if Attorney General Mukasey simply certifies to the court that the “alleged” activity was the subject of a written request from the Attorney General, which indicated that the activity was authorized by the President and “determined to be lawful.”  

 

This concerns me.  We should not be dismissing Americans’ claim of a deprivation of rights based on the mere assertion by a party in interest that what it did was lawful.  In this setting, in fact, it is not even a determination by the current Attorney General that the warrantless wiretapping program was lawful.  All the bill requires is that the Attorney General certify that the phone company acted at the behest of the administration and that the administration “indicat[ed]” that the activity was “determined to be lawful”– by somebody, at some time, whether or not it actually was determined to be lawful or actually was lawful.

 

I believe the rule of law is important.  I do not believe Congress should seek to take away the only viable avenue for Americans to seek redress for harms to their privacy and liberties, and the only viable avenue of accountability for the administration’s lawlessness. 

 

I recognize that this legislation also contains important surveillance authorities.  I support this new authority and have worked for a year to craft legislation that provides that important authority along with appropriate protections for privacy and civil liberties.  The Senate Judiciary Committee reported such a bill last fall.  I commend House Majority Leader Hoyer and Senator Rockefeller, who negotiated this legislation, for incorporating several additional protections that bring it closer to the Judiciary Committee’s bill. 

 

I note, in particular, the requirement of an Inspector General review of the administration’s warrantless wiretapping program.  It is a provision I have advocated throughout the course of consideration of these matters. This review will provide for a comprehensive examination of the facts of that program and should prove useful to the next President.  I believe still more protections for privacy and civil liberties are necessary, and if this bill becomes law I will work with the next administration on additional protections. 

 

Despite some improvements to the surveillance authorities the bill authorizes, I cannot support this legislation.  This administration violated FISA by conducting warrantless surveillance for more than five years.  They got caught.  The apparent purpose of Title II of this bill is to ensure that they will not be held to account.  That is wrong.  I will, therefore, oppose cloture on the motion to proceed to the measure.  If the Senate proceeds to the bill, I will then support amendments to its unaccountability provisions, including an amendment which I am cosponsoring to strike the immunity provisions.  If those are unsuccessful, I will vote against the bill because it remains designed to avoid accountability.

 

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