[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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