02.11.08

Amendment To Strike Immunity

I strongly oppose the blanket grant of retroactive immunity in the Intelligence Committee bill.  This administration violated FISA by conducting warrantless surveillance for more than five years.  They got caught.  If they had not, they would probably still be doing it.  In the wake of the public disclosure of the President’s illegal surveillance of Americans, the administration and the telephone companies are being sued by citizens who believe their privacy and constitutional rights have been violated.  Now, the administration is trying to force Congress to terminate those lawsuits in order to insulate itself from accountability.  We should not allow this to happen. 

The administration knows that these lawsuits may be the only way that it will ever be called to account for its flagrant disrespect for the rule of law.  In running its illegal program of warrantless surveillance, the administration relied on legal opinions prepared in secret and shown to only a tiny group of like-minded officials ensured the administration received the advice they wanted.  Jack Goldsmith, who came in briefly to head the Justice Department’s Office of Legal Counsel described the program as a “legal mess.”  This administration does not want a court to have the chance to look at this legal mess.  Retroactive immunity would assure that they get their wish. 

The Judiciary Committee and Intelligence Committee tried for well over a year and a half to obtain access to the information that our members needed to evaluate the administration’s arguments for immunity.  Indeed, over a year ago Chairman Specter was prepared to proceed to subpoena information from the telephone companies in light of the administration’s stonewalling.  It was only just before the Intelligence and Judiciary Committees’ consideration of this bill that committee members finally obtained access to a limited number of these documents.  Senators who have reviewed the information have drawn very different conclusions.  

 

Now this matter is before all Senators and it is well past time for all Members to have access to the information they need to make informed judgments about the provisions of these bills.  The Majority Leader wrote to the administration state that Members of the Senate need that access.  We have had no response – the administration has ignored the request.  It is clear that they do not want to allow Senators to appropriately evaluate these documents, and draw their own conclusions. 

 

There are reports in the press that at least one telecommunications carrier refused to comply with the administration’s request to cooperate with the warrantless wiretapping.  All Senators should have the opportunity to know these facts, so they can make an informed judgment about whether there were legitimate legal concerns that other cooperating telecommunications companies should have raised.  Indeed, if other carriers had been more careful in their legal analysis, and had raised these concerns, would the administration have had a greater incentive to come to the Congress and get the law changed?  Would we have been spared five long years of illegal behavior by this administration?

 

I have drawn very different conclusions than Senator Rockefeller about retroactive immunity. I agree with Senator Specter and many others that blanket retroactive immunity, which would end ongoing lawsuits by legislative fiat, undermines accountability.  Senator Specter has been working diligently first as the chairman of the Judiciary Committee and now as its ranking member to obtain judicial review of the legality of the warrantless wiretapping of Americans from 2001 into last year.  The check and balance the judiciary provides in our constitutional democracy has an important role to play and should be protected.  Judicial review can and should provide a measure of accountability. 

 

We hear from the administration and some of our colleagues that we must grant immunity or the telephone companies will no longer cooperate with the Government.  Senators should understand that even if we do not grant retroactive immunity, telecommunications carriers will still have immunity for actions they take in the future.  Their cooperation in the future will still be required by legal orders and they will not be subject to liability for doing what the law requires.  If they follow the law, they have immunity. 

 

We have heard some people argue that the telephone companies should get immunity because they complied with the Government’s requests to engage in warrantless surveillance out of patriotism.  I do not doubt the patriotism of the executives and employees of these companies, but this month we learned that these companies cut off wiretaps, including wiretaps of terrorists, because the FBI failed to pay its telephone bills.  How can this administration talk repeatedly, on the one hand, about the importance of FISA surveillance, and on the other hand, fail to pay its phone bills and jeopardize this critical surveillance.  But beyond that, the fact that carriers were willing to cut off surveillance when they were not paid – presumably some of the same carriers that agreed to conduct warrantless surveillance – undercuts the argument about their patriotic motives. 

 

As one former FBI special agent has said “It sounds as though the telecoms believe it when the FBI says the warrant is in the mail, but not when they say the check is in the mail.”

 

I believe in the rule of law is important and in protecting the rights of Americans from unlawful surveillance.  I do not believe that Congress can or should seek to take those rights and those claims from those already harmed.  Moreover, ending ongoing litigation eliminates perhaps the only viable avenue of accountability for the Government’s illegal actions.  Therefore, I say again:  I oppose blanket retroactive immunity. 

 

I do support and will vote for the amendment that Senators Specter and Whitehouse will offer on “substitution”.  This amendment would place the Government in the shoes of the private defendants that acted at its behest and let it assume full responsibility for illegal conduct.  The Specter-Whitehouse amendment contains an explicit waiver of sovereign immunity, which will allow the lawsuits to proceed against the United States, and it makes other changes designed to assure that the Government does not have advantages as a defendant that the carriers would not have. While I see no need to deal with the issue of lawsuits against the providers in this Congress, I believe that substitution is a fairer means of dealing with these lawsuits than full retroactive immunity, because it would give the plaintiffs their day in court, and it would allow for a measure of accountability for the administration’s actions in the years following 9/11.

 

This administration violated FISA by conducting warrantless surveillance for more than five years.  They got caught, and the telecommunications carriers got sued.  Now, the administration insists that those lawsuits be terminated by Congress, so that it does not have to answer for its actions.  Retroactive immunity does more than let the carriers off the hook.  It shields this administration from any accountability for conducting surveillance outside of the law.  It would stop dead in their tracks the lawsuits that are now working their way through the courts, and leave Americans whose privacy rights have been violated with no chance to be made whole.  These lawsuits are perhaps the only avenue that exists for an outside review of the Government’s actions.  That kind of assessment is critical if our Government is to be held accountable.  That is why I do not support legislation to terminate these legal challenges and I will vote to strike it.

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