FISA Bill Fails To Hold Administration Accountable
For Illegal Wiretapping Program

 

 

WASHINGTON (Tuesday, July 8, 2008) – Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) today expressed his support for an amendment to the FISA Amendments Act of 2008 to strike provisions in the bill that would grant retroactive immunity to telephone companies that participated in the Bush administration’s warrantless wiretapping program.  Leahy is a cosponsor of an amendment to strike Title II of the bill, which would provide for the dismissal of lawsuits brought against the telephone companies, provided that the Attorney General certifies that the government requested the surveillance and indicated that it had been ‘determined to be lawful.’  Leahy has joined Sen. Chris Dodd (D-Conn.) and Sen. Russ Feingold (D-Wis.) in offering the amendment.

 

The Senate is expected to continue debate on the FISA Amendments Act of 2008 into Wednesday morning.  Votes on the Dodd-Feingold-Leahy amendment and on two additional amendments are expected tomorrow morning.  A vote on final passage of the bill is expected around noon on Wednesday.  The text of Leahy’s prepared remarks follows.  For more on Leahy’s efforts to hold the Bush administration accountable for the illegal warrantless wiretapping program, click here.

 

Statement Of Senator Patrick Leahy (D-Vt.),

On The Dodd-Feingold-Leahy Amendment To Strike Immunity

In The FISA Amendments Act Of 2008

July 8, 2008

 

As Prepared

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

 

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

 

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

# # # # #