[Congressional Record Volume 154, Number 37 (Wednesday, March 5, 2008)]
[House]
[Pages H1329-H1335]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
DEMOCRATIC FRESHMEN HOUR
The SPEAKER pro tempore (Mr. Braley of Iowa). Under the Speaker's
announced policy of January 18, 2007, the gentleman from Kentucky (Mr.
Yarmuth) is recognized for 60 minutes.
Mr. YARMUTH. Mr. Speaker, it's a great honor for me to be here
tonight representing the class of 2006, the freshmen Democrats who were
responsible for returning the majority to the Democrats in the last
election. I'm particularly proud to be here to talk about the whole
area of intelligence and surveillance, which our colleagues from across
the aisle spent the last hour talking about.
I don't have props tonight because I look down at the dais and I see
engraved in the side of the dais two words that serve as the only props
I need in discussing this very important topic. I see the word
``justice,'' and I see the word ``freedom.'' Because that's really what
we're talking about when we're talking about the FISA controversy.
We're talking about whether the incredibly important principles of
justice will apply to the way we treat corporations in this country
that choose not to
[[Page H1330]]
obey the law. And we're also talking about freedom. We're talking about
the freedom of individuals to pursue their private lives free of the
worry that they're being listened to for no good reason.
You know, it's interesting to listen to my colleagues from across the
aisle. And I don't want to impugn their motives at all. I believe that
they, just as we on the majority side of the aisle, firmly believe in
patriotism. We firmly believe in securing this country. We believe this
is one of our sworn duties.
There is no question that all of us take an oath to secure this
country and to protect it, and one of our primary responsibilities is
to defend the people of this great country. But the first thing that we
swear to when we take the oath of office is to protect the Constitution
of the United States. That is our solemn oath. And the Constitution was
written primarily to protect the rights of the American citizens. And
that's really what this controversy is all about. All of us, every one
of us, Democrat and Republican, is primarily concerned about making
sure that our citizens are safe. And we want to do everything in our
power to make sure that we use every tool that we have at our disposal
to make sure that our citizens are safe. But we also want to make sure
that every tool in our power is not used to violate the Bill of Rights,
the amendments which guarantee fundamental freedoms to our citizens.
And that's really what we're talking about when we talk about the FISA
reauthorization.
You know, it's interesting; we passed, last fall, a reauthorization
of the FISA Act, the Protect America Act, and we passed it willingly.
We thought it was a good bill. And here comes the President saying, I'm
not going to allow this bill to go forward. I'm not going to allow
these important protections for the American citizens to go forward
unless we give immunity to the phone companies because the phone
companies did what we ordered them to do, essentially, starting with 9/
11. We asked them to help us provide surveillance of American citizens
even though we knew it was against the law, even though they knew it
was against the law. We asked them to do that, and, therefore, they
shouldn't be held accountable for that.
Well, that's an interesting attitude. And I know that my colleagues
across the aisle said all they're trying to do is to protect the trial
lawyers, all they're trying to do is protect the trial lawyers. Well, I
have another question because there is another side to that point. And
I'll address the trial lawyer controversy, or issue, but the other side
of that is, why are they trying to protect the phone companies? Why are
they trying to protect American corporations that knowingly violated
the law of the United States?
Now I don't think that it's really because they care whether the
phone companies have to pay millions of dollars in damages. I don't
think it's really because they care whether trial lawyers might make a
contingent fee. I think the only reason that they are concerned about
granting immunity to the phone companies for ostensibly violating the
law of the United States is because they don't want the American people
to know what the phone companies were doing and what the administration
has ordered them to do because in a legal procedure, a lot of that
information may come out.
Now they will say, on the other hand, if they get to that, well, this
is a matter of national security. And all the legal experts say no, the
courts have a way of making sure that no classified information is
divulged to the public. But what the administration is really afraid of
is not that AT&T might have to pay $100 million. They're concerned
about AT&T having to go under oath and say here's what we did, and that
somebody will understand that this administration asked them to violate
the law, and they knowingly did that. That's what the immunity issue is
all about.
Now in terms of the trial lawyers. I know, and I know our leadership
has told us, the trial lawyers have never said a word about this issue.
This isn't a big deal. You're not talking about a vast number of
lawyers who are going to benefit from this. There are only a few
companies that did it. As a matter of fact, there are a couple of
companies that were reputable enough and honest enough to say no to the
government, we're not going to do that, we're not going to violate the
law.
{time} 2015
So they didn't need immunity because they didn't do anything wrong,
and I don't know how many lawyers could actually, and I don't want to
use the metaphor I was thinking of, but try to exploit that situation
for their benefit, but there are not that many involved. And trial
lawyers really have not lobbied this issue at all.
What we are talking about, plain and simple, is the issue of who
violated the law. Is there accountability? Is there justice in this
country? And this administration, in spite of their protestations of
saying Osama bin Laden is out there, he's making phone calls, they're
all making phone calls, that that's what we want to protect ourselves
from, that has nothing to do with the immunity issue. The immunity
issue is history. That's the past. We're concerned about what we do
going forward. We're concerned about protecting the American people. We
enacted legislation last fall that would do that. The President won't
sign it.
So we have a very, very different perspective on this issue. And it's
funny because they throw up their hands on the other side and say, I
just can't imagine why the leadership of the Democrats is not allowing
this to come to a vote, why they won't pass this bill. We need to do
it. It's a perfect bill. We need to do it.
Well, I have three answers for them. I think I have already mentioned
a couple of them. One is the Constitution. That's the solemn oath that
we take when we enter this office. And we are not willing to pass a
bill that basically eliminates part of the Constitution.
Secondly is the rule of law. I think we all agree that the rule of
law is sacrosanct, that this country would fall if it weren't for the
rule of law. And we are trying to make sure here that the rule of law
is observed and respected.
And, finally, we're talking about individual liberty, the freedom I
talked about at the outset of the remarks, that we need to make sure
that if we allow individual liberties to be abridged in this country
that it is done pursuant to legal authority, that it is done pursuant
to warrants, that it is done pursuant to the government's going to a
court and providing reasonable cause to assume that there is some
reason to surveil an individual American citizen. That's what this
dispute is all about. That's what this issue is on both sides.
And it's interesting. As I listened to the President not too long ago
when he was once again trying to use scare tactics to intimidate this
body into doing what he wants to do, to protecting him and to
essentially helping him engage in a coverup of the activities of the
administration and the phone companies, he made the statement that
right now terrorists are plotting activities against the United States
that would make 9/11 pale in comparison. That's what he said.
And when I heard him say that, my thought was, well, wait a minute.
If he actually knows that, that they are plotting something that's
worse than 9/11, then I guess he's getting all the information he
needs. Somehow, some way he's hearing information. If he can make a
claim with that specificity that it's going to be worse than 9/11 and
they are planning it now, then maybe he's listening to something. Maybe
the intelligence authority that he was using works and he doesn't need
this additional authority.
But I don't think that's the case, of course. I think basically what
he was trying to say is do this or you die because that's been the
strategy of this administration in many cases. Do what we want or you
will be in trouble. You will be harmed. Your family will be harmed.
I don't think the American people are buying it anymore. I think
they've cried wolf far too often. But that's what we have been dealing
with in trying to have a very reasonable approach to providing the type
of authority that we agree is necessary to allow us to wage this
struggle against terrorist activity. So that's sort of, in an
introductory way, what we are dealing with.
And it gives me great pleasure now to welcome another Member of the
class of 2006, my good friend, the gentleman from Wisconsin, Dr. Kagen.
[[Page H1331]]
Mr. KAGEN. Thank you, Congressman Yarmuth. I really appreciate your
words of wisdom and your counsel. And I would like to engage you in
some conversation this evening.
Earlier this evening we heard our colleagues on the Republican side
raise some interesting issues, and one of the questions that someone
raised was, almost facetiously, I hope, ``Where's Waldo?'' If security,
if international security depends upon finding anybody, it's not Waldo.
We took our eye off the ball. Where is Osama bin Laden, and what are we
doing about him and his violent extremists and the people that follow
his way of thinking?
So, may I ask you a question? Congressman Yarmuth, is it really true
that our intelligence community went dark? Are we no longer listening
in on conversations? Is some of this fear mongering actually real? Is
there any truth in there at all? Are we going dark? Are we not
listening to people who want to do us harm?
Mr. YARMUTH. Well, I think the answer to anyone who thinks about it
is obvious. No, of course we are listening. And what's more, we're
listening pursuant to authority that exists in the law. And when the
current law expired recently, the authority to surveil under the prior
act did not expire. And, in fact, there have been numerous people who
have said we have all the authority we need to protect this country.
Mr. KAGEN. But, sir, there have been telephone calls going out. There
have been radio conversations. There have been television commercials
in districts around America trying to indicate that, in fact, we have
gone dark, that we've suddenly stopped listening. Are you telling me
here tonight that that just isn't true?
Mr. YARMUTH. You don't have to take my word for it. Experts in the
field have testified to the fact that this is not the case. Richard
Clarke, who is the former Chief NSC Counterterrorism Adviser under both
Presidents Clinton and George W. Bush said, ``Let me be clear. Our
ability to track and monitor terrorists overseas would not cease should
the Protect America Act expire. If this were true, the President would
not threaten to terminate any temporary extension with his veto pen.
All surveillance currently occurring would continue even after
legislative provisions lapsed because authorizations issued under the
act are under effect up to a full year.''
So, of course, there is no reason to believe the ads and the scare
tactics that have been perpetrated against Members in the Congress.
Mr. KAGEN. Well, then the question has to be asked, what's really
going on here? What is it that our Republican colleagues disagree with
us about with regard to protecting not only America, using FISA, but
also protecting our constitutional rights? Can we not protect America
and our Constitution at the same time?
Mr. YARMUTH. Well, obviously we can. And obviously this body did last
fall. We passed a very, very reasonable reauthorization of the Protect
America Act which did virtually everything that the President wanted,
and it provided authority to surveil under reasonable circumstances. It
didn't grant the NSC or any other institution the ability to go on a
fishing expedition. It retains some oversight, some court control.
Again, this is a secret court. But this is the way the law was set up
in 1978. It's worked very well since then. There are some tweaks that
are needed in this law. We recognize that. We did what the
administration requested. All of a sudden, this issue of immunity comes
up. And, again, I can't believe that this has anything to do with
worrying about whether AT&T pays out millions of dollars. This is not
what they are concerned about. I don't think the gentleman believes
that either.
Mr. KAGEN. I appreciate what you just said, but it raises another
question.
When you indicate that there is a question of immunity, is that not
another word for ``amnesty''? Is it correct to say that the current
President, President Bush, is seeking amnesty? And if we are going to
give amnesty to someone, isn't it a natural thing to ask what are we
forgiving somebody for? Don't you think we should understand exactly
what someone did before we forgive them and give them amnesty? Isn't
that a reasonable thing to ask?
Mr. YARMUTH. I think it's not only reasonable; I think it's our duty
to require that because it would be a frivolous act if we just said,
well, whatever you did, whether it was legal or not, then we're going
to grant you immunity or amnesty for doing that. No, we have to know,
in order to grant immunity, whether or not there is a reason to grant
immunity. Why would we want to do that if there were no reason to do
it?
Mr. KAGEN. Isn't that also one of the reasons why we were sent here
to Washington to try to fix this situation where the 109th Congress
failed to ask questions, failed to ask the pertinent questions, failed
to hold hearings to find out what it is we are fighting for, why we
really invaded Iraq, where's our money being spent? I've been told that
20 percent of the money we spent in Iraq is simply unaccounted for. And
20 percent of over a trillion dollars is a lot of billions of dollars.
So I think the 110th Congress has a duty, a responsibility, and, yes, a
constitutional responsibility to balance the balance of power, to reset
the balance, and to also investigate wherever possible and ask
questions.
So the questions I would pose to my Republican friends is, what is it
you're afraid of? What is it that someone has done wrong? And whom is
it we are trying to protect? Are we trying to protect America, or are
we trying to protect special interests, either the telephone industry
or the people that ask them to break the law in the White House?
Do you think it's possible that what they are really concerned about
is their own immunity in the White House? Is that a possibility?
Mr. YARMUTH. Well, I think that's exactly the case.
And I don't blame the telephone companies. I think they were in a
very difficult spot. When your government asks you to do something and
says that the security of this country is at stake, then I suspect that
most corporations would comply with the government's request.
Now, these corporations, being the major corporations that they are,
with lots of money, with lots of legal advice, lawyers everywhere,
would understand that what they were being asked to do might run afoul
of the law. And I would suspect that they did make a decision, being in
a very difficult spot, I can see, that I either comply with the
government, do what they ask me to do, understanding that the
government is regulating me; so they would say, okay, I'm really
between a rock and a hard place. I can do what the government asks,
knowing it's a violation of the law, or I can refuse and knowing that
they are regulating me, that my business might be affected some way or
another.
But that's all a different dynamic from what we're dealing with. We
are dealing with the question of does the Congress have the
responsibility to hold anyone, corporation or individual, accountable
if they violate the law? And that's what I think we're talking about
today and talking about in this long debate.
Mr. KAGEN. But isn't it also true that not every telephone company
bent over and yielded information that was constitutionally protected
under the fourth amendment? Isn't it true that Quest in Colorado said,
no, not without a court order? And isn't it true that what we are
trying to obtain is judicial oversight of the executive branch? And
isn't it also a fact that the telephone companies didn't just volunteer
the information, that they were being paid to do so, and at one point
when they weren't being paid, they stopped turning over the information
and stopped the wiretaps?
So I don't think it's just out of a patriotic duty that the companies
had. There was a monetary compensation that went along with it. So I
think that we have a constitutional duty and the right as
representatives of the people that we have the honor of serving to ask
these questions and to bring out the reality and the truth of this
situation.
Mr. YARMUTH. We have to do this. And I agree with my colleague that
what we're talking about here is the oath we took. We took an oath to
uphold the Constitution. And the Constitution says that we have to obey
the laws of the land and we have to, within
[[Page H1332]]
our area of authority, make sure the laws of the land are upheld. And
we have to provide oversight for that.
We have been joined by another one of our distinguished colleagues, a
freshman Member, one of our most passionate Members from New Hampshire,
Carol Shea-Porter, and I yield to her.
{time} 2230
Ms. SHEA-PORTER. I am happy to be here. I am standing here tonight at
10:30 for the same reason that we are all here, because we believe that
it's our obligation, our duty to defend the Constitution. This
Constitution is a gift that has been handed to us through the
centuries, and it's the envy of the world. This is what differentiates
us from other nations.
To give you an idea of our Founding Fathers and what they thought
about this, at the conclusion of the Constitutional Convention,
Benjamin Franklin was asked, What have you wrought? And he said, A
Republic, if you can keep it.
So they understood even then that we would have to defend this
Constitution against well-meaning people who believed that they had to
give up some liberty in order to make themselves safe. This is not the
first time in our history that we have faced peril, as you know. This
has been an ongoing issue for us through the centuries. There are
always countries that wish to do us harm, and it is our obligation to
keep ourselves safe and to keep the American public safe. But that is
not what this argument is about, as you know, because we have FISA, and
FISA is in effect.
Now the President more than suggested that the intelligence community
went dark and that they would be unable to do any surveillance. But the
reality is, and the President and the Justice Department had to admit
recently, that the wiretaps could still go on.
I would just like to read this so people understand what we are
talking about here. This is from Reuters: ``White House Says Phone
Wiretaps Back on For Now.'' Here's the quote, the statement from the
Justice Department, the Office of the Director of National
Intelligence: ``Although our private partners are cooperating for the
time being, they have expressed understandable misgivings about doing
so in light of the ongoing uncertainty, and have indicated they may
well discontinue cooperation if the uncertainty persists.'' Well, first
of all, where is the patriotism there? If they believed this was for
the good of the country, they should stay with this program, and will
stay with this program.
Also, as my fellow Congressmen indicated, when they failed to pay the
bills for the wiretap, these companies pulled the wiretaps, and we lost
some critical information. So you have to wonder about that commitment
there.
But there's a larger issue. First of all, we do have all the national
security that we need right now. You're right that we need to tweak it,
and we tried to. We tried to extend this for 3 weeks so that we could
work it out. If it were so critical, why did the President and his
supporters vote to let it go? We voted to extend it for 3 weeks.
So there's something that is counterintuitive and actually bizarre,
that the President and his supporters would argue on one hand that we
were allowing something to drop that was so critical and, on the other
hand, refuse to vote to extend it for 3 weeks. So they didn't give us
the time that we needed to do two things. We have to do all we can to
protect Americans, and tweak this, but we also have an obligation to
protect the Constitution while we do this.
So what have we done here? The intelligence community has not gone
dark and the authority under this act allows the administration to
conduct surveillance here in the United States of any foreign target. I
am now reading from the House majority staff of the House Permanent
Select Committee on Intelligence. It's important that we cite these
sources so that we know. ``In the event that a new phone number or e-
mail address is identified, the NSA can add to the existing orders.''
They can begin surveillance immediately, without a court warrant.
Within 72 hours they have to get one. That sounds perfectly reasonable
to have judicial oversight and review.
So it's not true that people can't do surveillance. They can do
surveillance. They must do surveillance. If we think that there are
terrorists talking on the phone, I want them to be able to listen in,
and so do you. We have families here. We want the same protection that
other Americans want. And they can listen in.
But there's something else happening here, and this is called the
retroactive immunity for the phone companies. What do we mean by
retroactive immunity. What is immunity about? If you don't do anything
wrong, you don't need immunity. Immunity suggests that something
happened, and you're asking for this protection. And how can we say,
sure we'll give it to you until we know what they did? Why won't they
tell us what they did?
I liken it to somebody, a defendant showing up in court and saying to
the judge, Well, judge, I may or may not have done something wrong. I
am not going to tell you. But I want you to say maybe you did and maybe
you didn't, but whatever it is, you're forgiven right away.
We would not accept that from an individual, and we must not accept
it for any businesses either. We are, as John Adams said, a government
of laws, not men. Nobody is above the law. Not you, not I, not any
individual, not any company. They knew what they were supposed to do.
I would like to point out that Qwest knew that, another telecom
company, and did not follow the President's request there. The
President is not the one who sets the Constitution. He is not the one
who decides. We have three branches of government. We must have
judicial review and oversight. And it's our obligation, as it has been
on every Congressman and Congresswoman's shoulders, to watch out for
this incredibly brilliant document that is the envy of the world.
Mr. YARMUTH. If the gentlelady will yield, I would like to reinforce
one statement you made. You talked about the fact that we wanted to
extend the act for 21 days so that we could make these corrections. It
wasn't just that the President threatened to veto the bill and we voted
to extend it. All 202 Republicans voted against the extension.
I actually was mystified to watch a news show right around that time,
on which they said the Democrats refused to extend the act. I said,
boy, is that ridiculous spin. Because we proposed the extension. Every
one of the Republicans opposed it, the President threatened to veto it
and demagogued it, and yet we were blamed for something we tried to do.
I yield back.
Ms. SHEA-PORTER. We were looking for a bipartisan agreement. If it's
that critical, then we should have had the extension. But they know
what we know, which is that FISA is still in effect, that they can
eavesdrop without a warrant. That they simply, if there's an American
involvement, they have to go get a court warrant within 72 hours.
By the way, that is not difficult to do. Over the period of years,
there have been thousands and thousands of requests. I think only five
have been refused. So this is not a problem. If they consider having to
get a warrant a problem, I am sorry, but something stands between the
President and this, and it's called the Constitution.
I come from a Republican family. My father was an attorney, and he
was a very conservative Republican. I worked in his law office. And he
taught me this great love for the Constitution. So the reason I point
that out is because this is not a political issue. This has to do with
the Constitution. And so regardless of whether people are Republicans
or Democrats, what we saw here when they didn't extend it was a
political maneuver. But it should not be. It is our first and foremost
obligation to protect our freedoms while we protect our Constitution.
Mr. YARMUTH. I want to yield again to my colleague from Wisconsin,
but one of the things that intrigued me earlier was the notion that
somehow we were not interested in security, that we were not interested
in fighting the most effective fight that we could against 9/11, and
that we were playing politics with the security of this country. That
seems to me to be kind of standard rhetoric when we are talking about
these matters, when in fact we tend not to deal with what is in the
actual law, what the facts of the situation are.
[[Page H1333]]
I would like to yield again to my colleague from Wisconsin. We have
been joined by another distinguished colleague, Mr. Perlmutter, from
Colorado. I would like you all to engage in a colloquy about the issue
of politics and just who might be playing politics with a very
important matter of national security.
Mr. KAGEN. Well, I thank you for yielding.
There were two very valuable lessons that I learned during my
campaign and election to Congress. The first lesson was that people
will believe a lie if it's represented to them with great skill on
television repeatedly. People will believe something that just simply
isn't true.
Here, the kind way of putting it is misrepresentation of reality. I
am continuously amazed at how people are misrepresenting reality. We
have never gone dark in our intelligence community. We have continued
to survey those who seek to attack us and do us harm. We must stand
strong behind our Constitution, and most especially our fourth
amendment rights, which reads, ``The right of the people to be secure
in their persons, houses, papers and effects against unreasonable
searches and seizures shall not be violated, and no warrants shall
issue but upon probable cause, supported by oath or affirmation and
particularly describing the place to be searched and the persons and
things to be seized.''
Now if someone in the United States is seeking immunity, I ask my
colleague, Mr. Perlmutter, what could be the reasons for seeking
amnesty or immunity?
Mr. PERLMUTTER. The reason you seek amnesty or immunity or some sort
of protection from being sued or charged is that there may have been
wrongdoing. There may have been some violation of a law or potentially
a constitutional provision like the fourth amendment, which you just
read.
I think really the issue here, and you may all have been over this a
dozen times, but it bears repeating, that there is a provision in our
wiretapping law, and everybody calls it FISA. This is about
wiretapping. This is about eavesdropping. There are times when you need
to wiretap. There are times when you need to eavesdrop if somebody you
have probable cause or you have general belief that somebody is going
to do you harm. It could be a criminal enterprise or it could be a
foreigner who wants to attack the United States. There was a glitch in
our law which needed to be fixed. There was a technical glitch which
said if there was a wiretap on U.S. soil, then you had to get a
warrant.
Now the way that telecommunication works these days is somebody could
be calling from Pakistan to Germany, two people, foreigners who aren't
entitled to the protection of the fourth amendment, but that
telecommunication, that phone call is routed through the United States.
We changed the law, we, the Congress, to take care of a technical
telecommunication glitch and said in that instance that you don't have
to get a warrant. So if it's between a foreign individual and another
foreign individual, there's no need for a warrant on foreign property.
Now we fixed this. But the President asked for more. He wants to get
rid of the courts who are there to protect us as citizens, as
Americans, and the Constitution of the United States. He says, I don't
want those courts. I don't think they need to be present. Well, we
needed them when Richard Nixon was President. We needed to make sure
that before the government, before the White House, before anybody
looks in on my house or your house, or any American's house, there has
to be a reason. And the courts were that stop. That was that objective
branch. So yes, we are going to keep the courts involved.
Secondly, the President or the White House or somebody had asked the
phone companies to do these taps. Well, the phone companies knew how to
do taps. They got a warrant. The law said, You get a warrant, you're
protected, Mr. Phone Company, or Mrs. Phone Company. You can wiretap
somebody's phone call. Well, it appears that in this instance they
didn't get warrants. They circumvented the courts.
Now we don't know that for sure. We haven't been given all the
information that we in the Congress or the people of America deserve.
Now the phone companies are asking for amnesty. They are saying, look,
if we didn't follow the law, we are sorry. Just forgive us. We know at
least one phone company that said, Wait a second, this doesn't make
sense. You're not giving us the warrants that the law requires. We are
not going to do it. That, I am glad to say, is my local phone company,
Qwest.
So it isn't like everybody did this. At least one phone company said
we want to follow the law. So, you know, this is about amnesty for
other phone companies and this is about avoiding the courts. That is
what this administration wants and, quite frankly, I am not going to
shirk my responsibility to the Constitution and to the people of this
country by caving in to those particular requests.
Mr. KAGEN. Before I yield to my colleague from Iowa (Mr. Braley), I
have got a question. Millions of people are thinking to themselves
right now, and have been, gee, I haven't done anything wrong. What have
I got to be worried about?
What have they got to be worried about?
Mr. PERLMUTTER. We each in this country, one of the very first
principles that we have and one of the very first values that we hold
dearly is our privacy. Now it may not be that I don't have anything to
hide, but I might not want the world to know that my daughter has
epilepsy, which she does. Somebody else might not want to have somebody
know that their child is failing in school, or that they are having
marital problems. Who knows what it is?
We in this country enjoy our privacy. It's something that is
protected by the Constitution. And it may be that we haven't committed
a crime, that what we have done isn't something that is going to be
brought before a court, but it's something that is personal to us.
{time} 2245
We in this country enjoy that right. We enjoy that freedom not to
have the government snoop into our lives unless there is really a
reason. And that is why the courts are present.
I turn to my friends from Kentucky and Iowa.
Mr. YARMUTH. I am going to yield to the gentleman from Iowa in just a
second, but I want to ask one question about that, and it is a
rhetorical question.
But can you imagine, I want every American to imagine how their lives
would change and how their conversations would change if they thought
that every phone call they made was being monitored? Just imagine the
chilling effect that that would have on every word you say, on your
very thought process. You have to be able to put yourself in that
situation to understand what is at stake when we talk about this issue.
This is not just about nasty people trying to do people wrong. This is
about every American having their very being altered by the threat that
they are being listened to.
Now I will yield to the gentleman from Iowa, Mr. Braley.
Mr. BRALEY of Iowa. I would like to thank my friend. I would also
like to thank my friend from New Hampshire, who mentioned earlier the
great American patriot and trial lawyer, John Adams, my ancestor.
One of the real thrills of serving in this body is the ability to
experience special events. We got that opportunity here tonight when
out in Statuary Hall there was a reception and later a special viewing
of an incredible new series on HBO dedicated to examining the life of
John Adams and the enormous impact he had on this country.
I think it is very significant to take a moment and realize that 238
years ago today the Boston Massacre occurred, one of the pivotal events
in our country's founding, and John Adams, a noted trial lawyer of his
day, was given the dubious distinction of defending the British
soldiers who made the first attack on those patriots, those brave
patriots like Crispus Attucks. Like many trial lawyers, he was faced
with the responsibility of doing his duty to perform an unpleasant
task, and he did it because he knew that it was an important part of
maintaining a system of laws, not of men.
I also think it is important to note that of those people like John
Adams
[[Page H1334]]
who were present at the signing of the Declaration of Independence, 24
of them were lawyers who understood the importance of the very issues
we are talking about today.
Why do I know that? Because if you read the Declaration of
Independence, you will see the stated grievances against King George
and that the amazing parallels in those grievances that they were
discussing at the founding of our Nation and the same things we are
talking about today is stark.
Let me remind you of what is in the Declaration. These are the
grievances they identified against King George III.
For depriving us in many cases of the right to trial by jury, which
is why the Seventh Amendment of the Constitution and the Bill of Rights
guarantees the trial by jury in all civil cases where the monetary
value is in excess of $15.
Also the grievance for taking and abolishing our most valuable laws
and altering fundamentally the forms of our government.
Third, for suspending our own legislatures and declaring themselves,
the king, vested with the powers to legislate for us.
That is why these are fundamental civil rights that have been part of
this country's history since its founding that we are talking about.
My friend from Colorado made a great point. What we are talking about
with the setting up of the FISA courts was setting up retroactive
warranties that gave the government the extraordinary ability to do
wiretapping without a court order, which had never been before
tolerated in this country, with the understanding that the terrorism
risk justified that sacrifice, and setting up the FISA courts for an
orderly form of due process to look backwards and guarantee that human
rights were not being violated. So we are talking here about
retroactive immunity, when we have already got retroactive warranties
and a process in place to take care of these concerns.
One of the things that nobody has talked about on the floor during
the debate over this issue is the fact that retroactive immunity only
benefits wrongdoers. If you have done nothing wrong under the law or
the Constitution, you don't need immunity.
My friends have been talking about the underlying basis for the
violation of laws by the telecoms, and I think we need to state what
that is. It goes back to 1934. The Federal Communications Act, Section
222, this Congress imposed on telecommunication carriers, such as all
these companies we are talking about, the duty under law to protect
sensitive personal customer information from disclosure. That is the
basic statutory right that is at stake by allowing retroactive immunity
to companies who violate that law.
So when people complain about us arguing the merits of standing up
for defense of the Constitution and the laws passed by this Congress, I
am at a loss to understand why we should be subject to all of this
angst for simply doing our jobs and standing up for the oath we took
when we were sworn in to uphold and defend the Constitution and the
laws of this country.
With that, I yield back to my friend.
Mr. KAGEN. If I may ask a question, because I really appreciate your
legal acumen, it is good to have roommates that are attorneys. So what
you are explaining to us is that I have a right to my own phone
records. That the records the phone company might have are not their
records. They really are my personal files, and they are entrusted with
that information on my behalf and cannot release that information to
anyone without my permission or a court order. Did I hear you
correctly?
Mr. BRALEY of Iowa. That is the very essence of the authority given
to these telecommunications carriers, to use that public trust of
allowing them to monitor and handle communications through a system of
phone lines, which is what we had back in 1934, and in exchange for
that trust, imposing on them the duty to protect that sensitive
information. That is why we have the Fourth Amendment. That is why we
have a system in place to guarantee the privacy of those customers.
Mr. KAGEN. Just to follow up, if I understand what you are saying,
what we are really talking about is everybody's personal individual
liberty and their rights as guaranteed under the Constitution, and that
giving blanket immunity without asking any questions would be giving
away individual liberties and rights. Is that correct, Mr. Perlmutter?
Mr. PERLMUTTER. Yes. To my good friend from Wisconsin, this is about
the rights we enjoy as Americans, and this is about the responsibility
that we have as Members of Congress to make sure that there isn't some
violation of the rights that we enjoy as Americans, we as Members of
Congress and everybody we represent. Really what has been troubling I
think to everybody is that the President says ``Trust me. Just give
them amnesty. Just give them immunity.'' The phone companies are
saying, ``We really can't talk to you because we are sworn to secrecy.
Just trust us.''
You know, I don't know about any of you and your constituents, but I
know that my constituents expect good representation, good oversight of
these kinds of things. And if the telecommunications are entitled to
some protection, we have given them protection in the law. If you get a
warrant, you are immune. You are doing your national duty by
wiretapping or using your surveillance powers. But you got to go
through the right process to protect those rights that we are so
fortunate to enjoy as Americans.
Mr. BRALEY of Iowa. If the gentleman would yield for a question, I
know that my friend from Colorado happens to represent a district where
the headquarters for one of the telecommunications carriers is located,
Denver, Colorado, where Quest has one of its primary business centers.
What I would like to ask my friend is, why didn't Quest go along with
this request from the government? A lot of these other telecoms did.
What was it that prompted them to say this doesn't sound right?
Mr. PERLMUTTER. Well, I don't know. I wasn't an attorney for Quest.
Just in terms of what I have read and the individuals I have spoken to,
I think Quest would respond by saying we wanted to follow the law. It
isn't as if Quest has a spotless record everyplace, but in this
instance they did the right thing and they have got to be given credit
for it. Others chose to maybe take the path of least resistance.
Mr. BRALEY of Iowa. If you would yield for another question, I am
going to pose this to all of my friends here on the floor.
When somebody comes to me and asks me to ignore my duties to make
sure that the laws and the Constitution are followed, which is what
they are asking us to do by granting immunity to these phone companies,
I think the average American citizen would expect at a minimum that I
would be aware of what was in these documents that are at the subject
of this request for immunity.
I don't know about the rest of you, but I haven't seen a single
document that has been produced in order to supposedly justify a claim
for immunity. I am just curious whether any of my friends have seen
them in their capacity as a Member of Congress?
Mr. KAGEN. I appreciate the question. I am not very good with
analogies, but it kind of sounds like a blind umpire, doesn't it? If we
don't know what we are looking at, how can we judge if it is fair or
foul or a strike or a ball, in baseball parlance.
But let me come back to this idea about cherry picking our laws and
cherry picking it apart to the point where the law doesn't mean
anything. Earlier today in this Chamber we had the distinct privilege
of passing a law about mental health care, about mental health care
insurance. We laid the foundation, the foundation that would establish
our constitutional rights in health care, so that people will not be
discriminated against on the basis of a preexisting condition, albeit
mental health care or a heart condition or otherwise.
But the idea of cherry picking our Constitution and our laws, are the
signing statements, the many hundreds of signing statements by this
administration or by this President, is that a sign or a symptom of
cherry picking our laws? Is this a situation we are in now, where we
finally have found a President that doesn't believe in the
Constitution, that won't enforce the laws, either immigration or our
constitutional rights? Mr. Perlmutter?
Mr. PERLMUTTER. Well, I want to step back for a second and just talk
[[Page H1335]]
about what I think our responsibility is with respect to this
wiretapping surveillance stuff and our responsibility as Members of
Congress, and really as citizens of this country, because we each have
an obligation as citizens to do these same things, to uphold the
Constitution and the rights that we all enjoy under the Constitution
and to make our citizenry safe, to help make our families safe, our
neighborhoods safe, our communities safe.
There is a way under the law as we have revised this surveillance law
to do both of those things. We have fixed this technical problem that
existed where foreigners were given certain rights under our Fourth
Amendment that they weren't entitled to. We have corrected that in this
law. But we have maintained the Fourth Amendment and the First
Amendment and the Third Amendment and everything else within the
Constitution for each and every American by including the courts to
oversee this and supervise when the government says we want to
eavesdrop on a citizen, and we are demanding of the President and the
telecommunications companies, we want to see what it is you are asking
us to let you off the hook about.
That is what is being asked. And they are saying sorry, we are not
going to let you look at that. Therefore, we are going to say, then we
are not doing our job. We are not going to just let you go get a get-
our-of-jail-for-free or go scot-free without information. We are not
doing our job then. We are not being accountable and responsible to our
constituents.
As the President has laid this out, he is just trying to stir up fear
in the American populace, which is wrong. He is trying to avoid the
courts as being a check and balance on the awesome power of the Federal
Government to invade our privacies. He doesn't want that, and he is
asking us to give this carte blanche amnesty without really giving us
the basis for that, and I object to all of those things. With that, I
yield back to my friend.
Mr. YARMUTH. There is some other history we haven't talked about
tonight yet, and that is the background of this controversy. Because
what we fail to remember as we debate this issue, and obviously I think
we want to deal with this prospectively, we want to make sure that this
country has the power, the government has the power and authority and
tools it needs to provide legitimate security for this country.
{time} 2300
But this program started right after September 11, 2001, and
continued for 4 years before it was exposed by the New York Times. So
this was a longstanding violation of the law, a deliberate avoidance of
the law by the administration. They could at any time after 9/11 have
come to Congress and said, we want some additional authority. But they
didn't do that. They knew that it would be tough. Even a Republican
Congress at that time might have looked askance at requests to do
warrantless wiretapping, so they just did it by themselves for 4 years.
Then, when it was uncovered, this Congress under Republican leadership
rushed to pass the Protect America Act, a stop-gap measure because,
obviously, it was embarrassing and they needed to do that.
But this is a longstanding deliberate ignoring of the law, and this
is something that it doesn't matter whether the government sanctioned
it; if companies did it and violated the law, as I said at the outset
of my remarks standing right behind you, Mr. Kagen, the words described
in that dais, justice. And that is what this country has been built on.
And this is a longstanding violation that needs to be redressed, and we
shouldn't just say, because the government asked them to do something,
that it is okay, that they broke the law. Because if that is the
precedent we are setting, there is no end to the imagination of horrors
that could happen if the government were able to immunize anyone for
any violation of the law.
With that, I would like to yield again to Carol Shea-Porter from New
Hampshire who has joined us.
Ms. SHEA-PORTER. I would like to point out that if the President and
his supporters managed to cut out the judicial branch, then the
authority for this would go to the Attorney General and the Director of
National Intelligence. Our most recent former Attorney General was
Alberto Gonzalez, and I think that we do not wish to put that kind of
power into the hands of people who may not see the government's role
the way that we do. So I have deep concerns about that. But, again,
this is not an issue of what party you are in. This is an issue of
whether you are an American and you believe in our Constitution or not.
I wanted to quote Andrew Napolitano, who was a New Jersey Superior
Court Judge from 1987 to 1995, and is the senior judicial analyst at
Fox News. He is upset about this as well, and he said: Those who
believe the Constitution means what it says should tremble at every
effort to weaken any of its protections. The Constitution protects all
persons and all people. And, he said, if we lower constitutional
protections for foreigners and their American correspondents, for whom
will we lower them next?
And that really is the question. We stand our ground now, and we
protect at least our American citizens from this eavesdropping.
The question earlier was, well, what do you have to hide? And I would
say that even though you may not be placing phone calls that have
anything to do with any government business, you may be having a
conversation about your boss's wife or husband. You may be having a
conversation about your husband's problem at work. You may be having a
conversation about your neighbor. And any of those conversations, if
they were overheard, could be used against you. So it is not simply the
kind of setting that we are talking about right now, not a grander
setting, a setting where it is national security, but simply your right
to privacy and for your neighbors not to know the kinds of thoughts and
the kinds of words that you share with people in private phone
conversations. So we have this obligation to stand here and protect all
of us.
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