[Congressional Record Volume 155, Number 60 (Thursday, April 23, 2009)]
[Senate]
[Pages S4678-S4679]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. SPECTER (for himself and Mr. Whitehouse):
  S. 876. A bill to provide for the substitution of the United States 
in certain civil actions relating to electronic service providers and 
FISA; to the Committee on the Judiciary.
  Mr. SPECTER. Mr. President, I have sought recognition to reintroduce 
legislation that would substitute the United States in the place of 
electronic communications service providers who were sued for violating 
the Foreign Intelligence Surveillance Act, FISA, and other statutory 
and constitutional provisions.
  FISA reform legislation passed the Senate in February and July of 
2008, both times by a vote of 68 to 29, before being signed into law by 
President Bush on July 10, 2008. This legislation made many necessary 
changes to FISA to enhance our intelligence collection capabilities, 
but it also included a controversial provision giving retroactive 
immunity to telecommunications companies for their alleged cooperation 
with the warrantless surveillance program authorized by the President 
after September 11, 2001. The legislation stripped the Federal courts 
of jurisdiction to decide more than 40 consolidated cases involving 
claims of violations of FISA and related statutes, even though most 
Members of Congress had not been briefed on the program, and despite 
the fact that the judge handling the cases, Chief Judge Vaughn Walker 
of the Northern District of California, had questioned the legality of 
the program in a related opinion issued just days before the final 
Senate debate.
  During the February and July FISA debates, I sought to keep the 
courts open as a way to check executive branch excesses. Through both a 
stand-alone bill, S. 2402, considered by the Senate Judiciary Committee 
and an amendment, SA 3927 to S. 2248, offered during the Senate's 
February debate on the FISA reform bill, I proposed to substitute the 
U.S. Government for the telephone companies facing lawsuits for their 
alleged cooperation with the Terrorist Surveillance Program, TSP. Just 
as in 2008, I propose legislation that would place the Government in 
the shoes of the telephone companies, with the same defenses no more 
and no less. Thus, under the bill, plaintiffs get their day in court 
and may hold the Government accountable for unlawful activity, if any, 
related to the surveillance program. At the same time, the carriers 
themselves avoid liability stemming from their efforts to be good 
citizens.
  I fought hard in 2008 to keep the courts open on the question of the 
TSP, and urged my colleagues to improve the FISA bill. I continue that 
fight today with a new Administration in office. During the prior floor 
debate I said: ``Although I am prepared to stomach this bill, if I 
must, I am not yet ready to concede that the debate is over. Contrary 
to the conventional wisdom, I don't believe it is too late to make this 
bill better.''
  As I observed on the floor last year, it is necessary for Congress to 
support intelligence collection efforts because of the continuing 
terrorist threat. No one wants to be blamed for another 9-11. Indeed, 
as I acknowledged during the debate, my own briefings on the telephone 
companies' cooperation with the Government convinced me of the 
program's value. Nevertheless, I tried to impress upon my colleagues 
the importance and historical context of our actions. I said:

       We are dealing here with a matter that is of historic 
     importance. I believe that years from now, historians will 
     look back on this period from 9/11 to the present as the 
     greatest expansion of Executive authority in history--
     unchecked expansion of authority. The President disregards 
     the National Security Act of 1947 mandating notice to the 
     Intelligence Committee; he doesn't do it. The President takes 
     legislation that is presented by Congress and he signs it, 
     and then he issues a signing statement disagreeing with key 
     provisions. There is nothing Congress can do about it.
       The Supreme Court of the United States has gone absent 
     without leave on the issue, in my legal opinion. When the 
     Detroit Federal judge found the terrorist surveillance 
     program unconstitutional, it was [reversed] by the Sixth 
     Circuit on a 2-to-1 opinion on grounds of lack of standing. 
     Then the Supreme Court refused to review the case. But the 
     very formidable dissenting opinion laid out all of the 
     grounds where there was ample basis to grant standing. Now we 
     have Chief Judge Walker declaring the [surveillance illegal]. 
     The Congress ought to let the courts fulfill their 
     constitutional function.

  It is not too late to provide for judicial review of controversial 
post-9/11 intelligence surveillance activities. The cases before Judge 
Vaughn Walker are still pending and, even if he were to dismiss them 
under the statutory defenses dubbed retroactive immunity, Congress can 
and should permit the cases to be refiled against the Government, 
standing in the shoes of the carriers.
  This legislation substitutes the U.S. in place of any electronic 
communication service provider who provided communications in 
connection with an intelligence activity that was: authorized by the 
President between September 11, 2001, and January 17, 2007; and 
designed to detect or prevent a terrorist attack against the U.S. In 
order for substitution to apply, the electronic communications service 
provider must have received a written request from the Attorney General 
or the head of an element of the intelligence community indicating that 
the activity was authorized by the President and determined to be 
lawful. If the provider assisted the Government beyond what was 
requested in writing, this legislation will provide no relief to the 
service provider.
  The legislation also establishes a limited waiver of sovereign 
immunity that only applies to ``covered civil actions'' essentially, 
the 40 cases currently pending before the U.S. District Court in the 
Northern District of California. This is to prevent the Government from 
asserting immunity in the event it is substituted for the current 
defendants.
  We can still pass legislation substituting the Government for the 
various telecom defendants and have a judicial assessment of the 
constitutionality and legality of the controversial surveillance. Such 
a judicial assessment is necessary to resolve the clash between the 
Executive and Legislative branches over the legality and 
constitutionality of the surveillance program.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                 S. 876

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. AMENDMENT TO FISA.

       Title III of the Foreign Intelligence Surveillance Act of 
     1978 Amendments Act of 2008 (Public Law 110-261) is amended 
     by inserting at the end the following:

     ``SEC. 302. SUBSTITUTION OF THE UNITED STATES IN CERTAIN 
                   ACTIONS.

       ``(a) In General.--
       ``(1) Certification.--Notwithstanding any other provision 
     of law, a Federal or State court shall substitute the United 
     States for an electronic communication service provider with 
     respect to any claim in a covered civil action as provided in 
     this subsection, if the Attorney General certifies to that 
     court that--
       ``(A) with respect to that claim, the assistance alleged to 
     have been provided by the electronic communication service 
     provider was--
       ``(i) provided in connection with an intelligence activity 
     involving communications that was--

       ``(I) authorized by the President during the period 
     beginning on September 11, 2001, and ending on January 17, 
     2007; and
       ``(II) designed to detect or prevent a terrorist attack, or 
     activities in preparation for a terrorist attack, against the 
     United States; and

       ``(ii) described in a written request or directive from the 
     Attorney General or the

[[Page S4679]]

     head of an element of the intelligence community (or the 
     deputy of such person) to the electronic communication 
     service provider indicating that the activity was--

       ``(I) authorized by the President; and
       ``(II) determined to be lawful; or

       ``(B) the electronic communication service provider did not 
     provide the alleged assistance.
       ``(2) Substitution.--
       ``(A) In general.--Except as provided in subparagraph (B), 
     and subject to subparagraph (C), upon receiving a 
     certification under paragraph (1), a Federal or State court 
     shall--
       ``(i) substitute the United States for the electronic 
     communication service provider as the defendant as to all 
     claims designated by the Attorney General in that 
     certification, consistent with the procedures under rule 
     25(c) of the Federal Rules of Civil Procedure, as if the 
     United States were a party to whom the interest of the 
     electronic communication service provider in the litigation 
     had been transferred; and
       ``(ii) as to that electronic communication service 
     provider--

       ``(I) dismiss all claims designated by the Attorney General 
     in that certification; and
       ``(II) enter a final judgment relating to those claims.

       ``(B) Continuation of certain claims.--If a certification 
     by the Attorney General under paragraph (1) states that not 
     all of the alleged assistance was provided under a written 
     request or directive described in paragraph (1)(A)(ii), the 
     electronic communication service provider shall remain as a 
     defendant.
       ``(C) Determination.--
       ``(i) In general.--Substitution under subparagraph (A) 
     shall proceed only after a determination by the Foreign 
     Intelligence Surveillance Court that--

       ``(I) the written request or directive from the Attorney 
     General or the head of an element of the intelligence 
     community (or the deputy of such person) to the electronic 
     communication service provider under paragraph (1)(A)(ii) 
     complied with section 2511(2)(a)(ii)(B) of title 18, United 
     States Code;
       ``(II) the assistance alleged to have been provided was 
     undertaken by the electronic communication service provider 
     acting in good faith and pursuant to an objectively 
     reasonable belief that compliance with the written request or 
     directive under paragraph (1)(A)(ii) was permitted by law; or
       ``(III) the electronic communication service provider did 
     not provide the alleged assistance.

       ``(ii) Certification.--If the Attorney General submits a 
     certification under paragraph (1), the court to which that 
     certification is submitted shall--

       ``(I) immediately certify the questions described in clause 
     (i) to the Foreign Intelligence Surveillance Court; and
       ``(II) stay further proceedings in the relevant litigation, 
     pending the determination of the Foreign Intelligence 
     Surveillance Court.

       ``(iii) Participation of parties.--In reviewing a 
     certification and making a determination under clause (i), 
     the Foreign Intelligence Surveillance Court shall permit any 
     plaintiff and any defendant in the applicable covered civil 
     action to appear before the Foreign Intelligence Surveillance 
     Court pursuant to section 103 of the Foreign Intelligence 
     Surveillance Act of 1978 (50 U.S.C. 1803).
       ``(iv) Declarations.--If the Attorney General files a 
     declaration under section 1746 of title 28, United States 
     Code, that disclosure of a determination made pursuant to 
     clause (i) would harm the national security of the United 
     States, the Foreign Intelligence Surveillance Court shall 
     limit any public disclosure concerning such determination, 
     including any public order following such an ex parte review, 
     to a statement that the conditions of clause (i) have or have 
     not been met, without disclosing the basis for the 
     determination.
       ``(D) Special rule.--Notwithstanding any other provision of 
     this Act--
       ``(i) in any matter in which the Foreign Intelligence 
     Surveillance Court denies dismissal on grounds that the 
     statutory defenses provided in title VIII of the Foreign 
     Intelligence Surveillance Act of 1978 are unconstitutional, 
     the Attorney General shall be substituted pursuant to this 
     paragraph; and
       ``(ii) if a claim is dismissed pursuant to title VIII of 
     the Foreign Intelligence Surveillance Act of 1978 prior to 
     date of enactment of this section, the claim against the 
     United States shall be tolled for the period during which the 
     claim was pending and may be refilled against the United 
     States pursuant to rule 60(b) of the Federal Rules of Civil 
     Procedure after the date of enactment of this section.
       ``(3) Procedures.--
       ``(A) Tort claims.--Upon a substitution under paragraph 
     (2), for any tort claim--
       ``(i) the claim shall be deemed to have been filed under 
     section 1346(b) of title 28, United States Code, except that 
     sections 2401(b), 2675, and 2680(a) of title 28, United 
     States Code, shall not apply; and
       ``(ii) the claim shall be deemed timely filed against the 
     United States if it was timely filed against the electronic 
     communication service provider.
       ``(B) Constitutional and statutory claims.--Upon a 
     substitution under paragraph (2), for any claim under the 
     Constitution of the United States or any Federal statute--
       ``(i) the claim shall be deemed to have been filed against 
     the United States under section 1331 of title 28, United 
     States Code;
       ``(ii) with respect to any claim under a Federal statute 
     that does not provide a cause of action against the United 
     States, the plaintiff shall be permitted to amend such claim 
     to substitute, as appropriate, a cause of action under--

       ``(I) section 704 of title 5, United States Code (commonly 
     known as the Administrative Procedure Act);
       ``(II) section 2712 of title 18, United States Code; or
       ``(III) section 110 of the Foreign Intelligence 
     Surveillance Act of 1978 (50 U.S.C. 1810);

       ``(iii) the statutes of limitation applicable to the causes 
     of action identified in clause (ii) shall apply to any 
     amended claim under that clause subject to the tolling 
     requirements of paragraph (2)(D)(ii), and any such cause of 
     action shall be deemed timely filed if any Federal statutory 
     cause of action against the electronic communication service 
     provider was timely filed; and
       ``(iv) for any amended claim under clause (ii) the United 
     States shall be deemed a proper defendant under any statutes 
     described in that clause, and any plaintiff that had standing 
     to proceed against the original defendant shall be deemed an 
     aggrieved party for purposes of proceeding under section 2712 
     of title 18, United States Code, or section 110 of the 
     Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
     1810).
       ``(C) Discovery.--
       ``(i) In general.--In a covered civil action in which the 
     United States is substituted as party-defendant under 
     paragraph (2), any plaintiff may serve third-party discovery 
     requests to any electronic communications service provider as 
     to which all claims are dismissed.
       ``(ii) Binding the government.--If a plaintiff in a covered 
     civil action serves deposition notices under rule 30(b)(6) of 
     the Federal Rules of Civil Procedure or requests for 
     admission under rule 36 of the Federal Rules of Civil 
     Procedure upon an electronic communications service provider 
     as to which all claims were dismissed, the electronic 
     communications service provider shall be deemed a party-
     defendant for purposes rule 30(b)(6) or rule 36 and its 
     answers and admissions shall be deemed binding upon the 
     Government.
       ``(b) Certifications.--
       ``(1) In general.--For purposes of substitution proceedings 
     under this section--
       ``(A) a certification under subsection (a) may be provided 
     and reviewed in camera, ex parte, and under seal; and
       ``(B) for any certification provided and reviewed as 
     described in subparagraph (A), the court shall not disclose 
     or cause the disclosure of its contents.
       ``(2) Nondelegation.--The authority and duties of the 
     Attorney General under this section shall be performed by the 
     Attorney General or a designee in a position not lower than 
     the Deputy Attorney General.
       ``(c) Sovereign Immunity.--This section, including any 
     Federal statute cited in this section that operates as a 
     waiver of sovereign immunity, constitute the sole waiver of 
     sovereign immunity with respect to any covered civil action.
       ``(d) Civil Actions in State Court.--For purposes of 
     section 1441 of title 28, United States Code, any covered 
     civil action that is brought in a State court or 
     administrative or regulatory bodies shall be deemed to arise 
     under the Constitution or laws of the United States and shall 
     be removable under that section.
       ``(e) Rule of Construction.--Except as expressly provided 
     in this section, nothing in this section may be construed to 
     limit any immunity, privilege, or defense under any other 
     provision of law, including any privilege, immunity, or 
     defense that would otherwise have been available to the 
     United States absent its substitution as party-defendant or 
     had the United States been the named defendant.
       ``(f) Effective Date and Application.--This section shall 
     apply to any covered civil action pending on or filed after 
     the date of enactment of this section.''.
                                 ______