Senate Consideration Of FISA Legislation

The Foreign Intelligence Surveillance Act – FISA – is intended to protect both our national security and the privacy and civil liberties of Americans. 

This law was passed to protect the rights of Americans after the excesses of an earlier time.  I had hoped that the Senate would act to improve the bill reported by the Select Committee on Intelligence.  It has not.  I had hoped that the Senate would incorporate improvements included in the House-passed RESTORE Act and in the bill reported by the Senate Judiciary Committee.  It has not.  I had hoped that the administration would work with us, but it has not.  Instead, having gotten exactly the bill they want and the way they want it from the Intelligence Committee, they have threatened a presidential veto if any improvements are made. 

I had hoped that Republican Senators would work with us as we have worked together to amend FISA dozens of times over the last 30 years and to update it in more than a dozen ways since September 11, 2001.  But Republicans voted lockstep to table the Judiciary Committee improvements and virtually lockstep against every individual amendment and improvement.  Worse, the Republican leadership has stalled action on the measure for weeks and continues to insist it is their way or no way.  Sadly, with the acquiescence of some on this side of the aisle, they have controlled the debate, the bill and the final result in the Senate.  Working together, we could have done better.  I look forward to working with the House to make the improvements that are needed to this measure before I can support it.  

This process has been in large part a repeat of that which led to the so-called Protect America Act last summer. That ill-conceived measure was rushed through the Senate in an atmosphere of fear and intimidation just before the August recess after the administration reneged on agreements reached with congressional leaders.  That bill was hurriedly passed under intense, partisan pressure from the administration.  It provided sweeping new powers to the government to engage in surveillance, without a warrant, of international calls to and from the United States involving Americans, and it provided no meaningful protection for the privacy and civil liberties of the Americans who are on those calls. 

The Senate should have considered and incorporated more meaningful corrections to that measure.  Before that flawed bill passed, Senator Rockefeller and I, and several others in the House and the Senate, had worked hard and in good faith with the administration to craft legislation that solved an identified problem, but also protected Americans’ privacy and liberties.  Just before the August recess, the administration decided, instead, to ram through its version of the so-called Protect America Act with excessive grants of government authority and without accountability or checks and balances.  After almost six years of violating FISA through secret warrantless wiretapping programs, that was wrong.  A number of us supported the better balanced alternative and voted against the Protect America Act as drafted by the administration and passed by the Senate. 


Because of a sunset provision, we had a chance to revisit that matter and to correct it. The Judiciary Committees and Intelligence Committees in the Senate and the House have spent the past months considering changes to FISA.  In the Senate Judiciary Committee, we held open hearings and countless briefings and meetings to consider new surveillance legislation.  We considered legislative language in a number of open business meetings of the Committee and reported a good bill to the Senate before last Thanksgiving.  


Instead, the bill the Senate is poised to pass will permit the Government to review more Americans’ communications with little in the way of meaningful court supervision.  I support surveillance targeting foreign threats, but wanted to take care to protect Americans’ liberties.  Attorney General Mukasey said at his nomination hearing that “protecting civil liberties, and people’s confidence that those liberties are protected, is a part of protecting national security.” On that I agree with him.  That is what the Senate Judiciary bill would have done.


The administration insists on avoiding accountability by including blanket retroactive immunity in their bill. It would grant blanket retroactive immunity to telecommunications carriers for their warrantless surveillance activities from 2001 through earlier this year contrary to FISA and in violation of the privacy rights of Americans.     


This administration violated FISA by conducting warrantless surveillance for more than five years.  They got caught, and if they had not, they would probably still be doing it.  When the public found out about the President’s illegal surveillance of Americans, the administration and the telephone companies were sued by citizens who believe their privacy and their rights were violated.  Now, the administration is trying to get this Congress to terminate those lawsuits in order to insulate itself from accountability.  I will not support such an end run around accountability.  


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.  This ensured that 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 rule of law is fundamentally important in our system, and so is 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.  Instead, I continued to work with Senator Specter, as well as with Senators Feinstein and Whitehouse, to try to craft more effective alternatives to retroactive immunity.  We worked with the legal concept of substitution to place the Government in the shoes of the private defendants that acted at its behest and to let it assume full responsibility for the illegal conduct.  I supported Senator Feinstein’s alternative proposal strengthening the role of the FISA Court in this regard.  The administration warded off all efforts at compromise and accommodation.  They refuse to be held accountable – to the Congress, or to the American people.


With the Senate poised to vote on retroactive immunity, it is long past time for all Senators 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 last year urging such access.  I have supported it.  We have had no response – the administration has ignored the request.  It is clear that they do not want to allow Senators or anyone else to evaluate their lawlessness.  Again, their rule is no accountability.  Whether it is Scooter Libby or anyone else, no accountability.   


I have drawn very different conclusions from 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. 


I believe that protecting the rule of law is important, and I believe 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 retroactive immunity.  There should be a measure of accountability for the administration’s actions in the years following 9/11.


I do not believe anybody is above the law.  I do not believe a President is, I do not believe a Senator is, I do not believe anybody is.  Keep in mind why we have FISA.  Congress passed that law only after we discovered the abuses of J. Edgar Hoover’s FBI.  Through the COINTEL Program, Hoover spied on Americans who objected and spoke out against the war in Vietnam -- which pretty well involved 100 percent of the Vermont delegation in Congress. 


Are we so frightened by 9/11 that we are willing to throw away everything this country fought for and everything that has made this country great through our history?   We can protect Americans’ rights, we can protect those things that our forefathers fought a revolution to attain, that we fought a civil war to protect, that we fought two World Wars to cement.  Are we going to throw it away because of a group of terrorists?  Not this Senator. 


Let us show the American people and the world what America stands for.  We can and will do all we can to secure the future, but at the same time we can protect the cherished rights and freedoms that define America.  Those are the rights and freedoms that protected past generations and allow us to have an American future.  If we do not protect them, what will we leave to our children and grandchildren?  Let us stand up for American values and preserve our freedom while protecting our national security.  


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