The Kennedy/Leahy Inspector General Review Amendment (Am. 3862), To The FISA Amendments Act Of 2007, S. 2248

Senator Kennedy and I have offered this important amendment to ensure that there will be some measure of accountability for the unlawful actions of this administration in the years following 9/11.  Regrettably, those opposing this common-sense review have so far succeeded in stopping the full Senate from even considering its merits. 


It is a sad day for the American public when its elected officials stonewall a measure designed to shed light on the government’s efforts to unlawfully spy on its own citizens.  I urge Senators across the aisle to allow this amendment to be called up, debated, and given an up-or-down vote.         


As we all now know from press accounts, in the years after 9/11, the government secretly conducted surveillance on its own citizens on a massive scale through what has become known as the Terrorist Surveillance Program (TSP).  It was done completely outside of FISA, the law specifically drafted to regulate such conduct.  And it was done without the consent or even the knowledge of the United States Congress.  It is crucial that Congress and the American people understand why and how these decisions were made, both in the months after 9/11, and in the several years following that difficult time.  This Inspector General review amendment will provide that accountability.


This review would be conducted jointly by the Offices of Inspectors General of each component of the Intelligence Community that may have played any role in the TSP, including the Inspector General of the Department of Justice.  It will examine the circumstances that led to the approval of the TSP, as well as any procedural irregularities that may have taken place within the Department of Justice Office of Legal Counsel – the part of the Justice Department that is supposed to give unvarnished legal advice to the President.  It will result in a final report to be submitted to the Intelligence and Judiciary Committees in the House and Senate within 180 days, containing recommendations and a classified annex.  There has been no such comprehensive review to date.


This amendment is particularly important because the administration and some of its allies in Congress are relentlessly arguing for retroactive immunity for the 40 or so lawsuits against those telecommunications companies that may have assisted in conducting this secret surveillance.  They are trying to shut down avenues for investigating and determining whether their actions were lawful.  This amendment will ensure that there will be an objective assessment of the lawfulness of the secret spying program and the manner in which the government approved and carried out the program.


Critics of the amendment claim that Congress has already conducted sufficient oversight of the TSP, and that no further review is warranted.  That is simply not true.  Only a small number of Senators and Representatives have been granted access to classified documents related to the TSP.  Those of us who have been granted access can provide a measure of oversight by reading through documents to try to piece together how the government decided to spy on its own citizens, for years, and how the Justice Department came to bless this unlawful conduct.  But the documents don’t tell the full story.  As we learned from Jack Goldsmith, the former head of the Office of Legal Counsel, the President’s program was a “legal mess” when he took over.  It is crucial to understand how this “legal mess” got approved in the first place.  Who was responsible?  Were the normal procedures followed at the Office of Legal Counsel?  And, perhaps most importantly, how can we stop something like this from ever happening again? 


This amendment is one of the many improvements to the Senate Intelligence bill that were adopted by the Judiciary Committee and included in the Judiciary Committee’s substitute amendment.  Regrettably, that substitute was tabled by the Senate earlier today.  I urge Senators to reconsider their votes with respect to this simple but critically important accountability measure.


If the critics succeed in quashing not only the outstanding lawsuits seeking accountability, but also congressional efforts to arrive at the truth through a comprehensive review of the TSP, the American public will never forgive us.  This administration is hoping it will end its time in office without any meaningful review of its more than five years of illegal surveillance.  We must not let this happen.  I urge all Senators to support this common sense amendment to ensure accountability. 


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