[Congressional Record Volume 153, Number 194 (Tuesday, December 18, 2007)]
[Senate]
[Page S15819]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                                  FISA

  Mr. LEAHY. Mr. President, I thank the Senator.
  Mr. President, I strongly oppose the blanket grant of retroactive 
immunity in the Senate Intelligence Committee's bill to amend the 
Foreign Intelligence Surveillance Act. This administration violated 
FISA by conducting warrantless surveillance of Americans for more than 
5 years. They got caught. If they had not gotten caught, they probably 
would still be doing it.
  When the public found out about the President's illegal surveillance 
of Americans, this administration, and the telephone companies who may 
have assisted them, were sued by citizens who believed their privacy 
rights were violated. Now, this administration is trying to convince 
Congress to terminate those lawsuits, in order to avoid accountability. 
We should not allow that to happen.
  The administration knows that these lawsuits may be the only way that 
it will ever be called to account for its illegal program of 
warrantless surveillance and its flagrant disrespect for the rule of 
law. In running its program of warrantless surveillance this 
administration relied on legal opinions, prepared in secret by a very 
small group of like-minded officials, who crafted those opinions to fit 
the administration's agenda. Jack Goldsmith, who came in briefly to 
head the Justice Department's Office of Legal Counsel, described the 
program as a ``legal mess.'' The administration does not want a court 
to get a chance to look at that mess, and retroactive immunity would 
ensure that there is no court scrutiny of their actions.
  Senator Rockefeller and I have been consulting since this summer to 
find ways to obtain access to the information our members need to 
evaluate the administration's arguments for immunity. The 
administration has consistently refused to provide this information to 
the Judiciary Committee. In fact, in light of the administration's 
stonewalling, Chairman Specter was prepared to subpoena this 
information from the telephone companies during the last Congress. 
Finally, we obtained access, not only for the chairman and ranking 
member, but for members of the Judiciary Committee. However, I believe 
all Senators should have access to this information, as well as those 
staff with the appropriate clearance.
  Instead of conducting warrantless surveillance in violation of FISA, 
trying to cover it up, and then trying to justify the coverup, this 
administration should have come to Congress immediately and asked for 
the authority it is now claiming it needs.
  I have drawn a different conclusion than Senator Rockefeller about 
retroactive immunity. I oppose granting blanket retroactive immunity. I 
agree with Senator Specter and many others that blanket retroactive 
immunity, which would end ongoing lawsuits by legislative fiat, 
undermines accountability.
  Immunity against future litigation is not the issue; the issue is 
retroactive immunity. If they followed the law, and FISA was not 
violated, the telephone companies would automatically have immunity and 
there would be no need for Congress to now duplicate that immunity.
  I also would note that title I of the FISA law was changed during 
markup in the Senate Judiciary Committee. When we come back to this 
bill next year, it will be my intent to bring much of what we did in 
the Judiciary Committee before the Senate for a vote.
  Again, I want our intelligence agencies to be able to intercept the 
communications of those people overseas who are trying to do harm to 
the United States. We all agree with that. But I want to make sure that 
Americans' communications cannot be acquired by the executive for just 
any reason. If the Government is going to listen to the communications 
of Americans it must abide by the legal system that has served us so 
well throughout the history of this country: court determination of the 
legality of surveillance before it begins, and court oversight 
throughout the process.
  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 if we do not grant retroactive 
immunity, telecommunications carriers will still have immunity for 
actions they take in the future. If they follow the law, they have 
immunity.
  Instead, I will continue to work with Senator Specter, as well as 
with Senators Feinstein and Whitehouse to try to craft a more effective 
alternative to retroactive immunity. We are working 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 any illegal conduct.
  I believe that requires reaching agreement that the lawsuits should 
be able to reach the merits rather than be short-circuited by Congress, 
and that the program be subject to judicial review so that its legality 
can be determined.
  Again, this administration violated FISA by conducting warrantless 
surveillance for more than 5-years. They got caught and they got sued. 
The administration's insistence that those lawsuits be terminated by 
congressional action is designed to insulate itself from 
accountability.
  Retroactive immunity would do more than let the carriers off the 
hook. It would shield this administration from any accountability for 
conducting surveillance outside the law. It would leave the lawsuits 
that are now working their way through the courts dead in their tracks 
and leave Americans whose privacy has been violated 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.
  The PRESIDING OFFICER. The Senator from Missouri has yielded earlier 
to the Senator from Vermont.
  Mr. GREGG. Would the Senator yield so I may propound a unanimous 
consent request that I be recognized at the completion of her remarks?
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Missouri is recognized.

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