[Congressional Record (Bound Edition), Volume 154 (2008), Part 1]
[Senate]
[Pages 747-751]
[From the U.S. Government Publishing Office, www.gpo.gov]




                                  FISA

  Mr. DODD. Mr. President, let me begin my remarks, I know tomorrow we 
are going to begin more formal debate on the FISA legislation. This is 
to be a continuation of the effort, for those who wonder what this is, 
this is the Foreign Intelligence Surveillance Act. This was the debate 
which was the last item of debate before the holiday break back in mid-
December.
  The legislation was withdrawn and was not completed. Senator 
Rockefeller, Senator Bond, the chairman and the ranking Republican, and 
members of the Intelligence Committee, Senator Leahy, Senator Specter, 
and members of the Judiciary Committee, Republicans and Democrats have 
worked on this legislation.
  I wish to begin my comments by thanking them for their efforts on 
trying to develop a piece of legislation that would reflect the 
realities of today.
  There has been some history of this bill. My intention this evening 
is to spend some time talking about a section of this bill dealing with 
retroactive immunity, which my colleagues and others who followed this 
debate know I spent some 10 hours on the floor of this body back in 
December expressing strong opposition to that provision of this bill; 
not over the general thrust of the bill.
  The Foreign Intelligence Surveillance Act is critically important to 
our country. It provides a means by which you can have a proper warrant 
extended or given out by governmental authorities to collect data, 
information, critical to our security.

[[Page 748]]

  For those who know the history of this, it dates back to the 1970s as 
a result of the Church Committee's efforts revealing some of the 
egregious activities of the Nixon administration in listening in, 
eavesdropping, wiretapping, without any kind of court order, warrant or 
legal authorities.
  So the Congress, working in a bipartisan fashion, I think almost 
unanimously adopted the Foreign Intelligence Surveillance Act in the 
late 1970s. Since that time, this bill has been amended I think some 30 
or 40 times, maybe more, I know it has been a number of times over the 
years. In nearly every instance, almost unanimously amended to reflect 
the changes over the years and the sophistication of those who would do 
us harm or damage, as well as our ability to more carefully apprehend 
or listen in or gather information that could help us protect our 
Nation from those who would do us great harm.
  That is a very brief history of this. We are once again at a 
situation to try and modernize and reflect the needs of our Nation. 
There is a tension that that exists between making sure we are secure 
and safe and simultaneously doing it in a manner in which we protect 
the basic rights of the American citizens.
  There has been this tension throughout our history. But we are a 
nation grounded in rights and liberties. It is the history of our 
country. It is what made us unique as a people going back more than two 
centuries.
  Over the years, we have faced very significant challenges, both at 
home and abroad. So we have had a need to provide for the means by 
which we collect data and information that would protect us, to make us 
aware of those who would do us harm, and yet simultaneously make sure 
that in the process of doing that, we do not abandon the rights and 
liberties we all share as Americans. The Constitution does not belong 
to any political party. I have said that over and over again. Certainly 
today, as we debate these issues involving the FISA legislation, I hope 
everyone understands very clearly my objections to the provisions of 
this bill have nothing to do whatsoever with the important efforts to 
make it possible for us to collect data that would keep us safe, but I 
feel passionately that we not allow this vehicle, this piece of 
legislation, to be used as a means by which we reward behavior that 
violated the basic liberties of American citizens by granting 
retroactive immunity to telecom companies that decided, for whatever 
reason, to agree, at the Bush administration's request, to provide 
literally millions of telephone conversations, e-mails, and faxes, not 
for a month or 6 months or a year but for 5 years, in a concerted 
effort contrary to the law of our land.
  So that is what brings me to the floor this evening. It is what 
brought me to the floor of this body before the holiday recess, talking 
and expressing my strong opposition to those provisions of this 
legislation. There are other concerns I would point out about this bill 
that other Members will raise. Senator Feingold has strong objections 
to certain provisions of this legislation, others have other ideas I am 
confident have merit.
  But I commend Senator Rockefeller and Senator Bond. They have done 
the best job, in many ways, of dealing with these sets of questions. 
But why in the world we decided we are going to grant retroactive 
immunity to these telephone companies is what mystifies me, concerns me 
deeply, because of the precedent-setting nature of it.
  There are those who would argue that in order for us to be more 
secure, we must give up some rights, that you have to make that choice. 
You cannot be secure, as we would like to be, if we are unwilling to 
give up these rights and liberties.
  I think this false dichotomy is dangerous. In fact, I think the 
opposite is true. In fact, if you protect these rights and liberties, 
that is what makes us more secure. Once you begin traveling down that 
slippery slope of deciding on this particular occasion we are going to 
walk away from these rights and these liberties, once you begin that 
process, it gets easier and easier to do.
  In this case, we are talking about telecom companies. We are talking 
about communications between private citizens, e-mails, faxes, phone 
conversations. Why not medical information? Why not financial 
information? When is the next example going to come up where companies 
that knew better, not should have known better, knew better, in my 
view.
  One of the companies that may have complied with the Bush 
administration's request, in fact, was deeply involved in the drafting 
of this legislation in the 1970s, in putting the FISA bill together. 
This was not some first year law school student who did not know the 
law of the land in terms of FISA, they knew the law, they understood 
it.
  In fact, there are phone companies that refused to comply with the 
request of the Bush administration absent a court order. Those 
companies said: Give us a court order, we will comply. Absent a court 
order, we will not comply.
  So there were companies that understood the differences when these 
requests were made more than 5 years ago.
  So this was not a question of ``everybody did it,'' the same argument 
that children bring to their parents from time to time, or ``we were 
ordered on high,'' in what is known as the Nuremberg defense which 
asserts that there were those in higher positions who said we ought to 
do this. That was the defense given in 1945 at the Nuremberg trials by 
the 21 defendants who claimed they were only obeying orders given by 
Hitler. Though this situation before us is obviously enormously 
different, a similar argument, that the companies were ordered to do 
this, defies logic and the facts of this case.
  With that background and the history of the FISA legislation--and 
there are others who will provide more detail--let me share some 
concerns about this particular area of the law. I will be utilizing 
whatever vehicles are available to me, including language I will offer 
to strike these provisions, to see to it that this bill does not go 
forward with retroactive immunity as drafted in the legislation 
included in the bill. I rise, in fact, in strong opposition to the 
retroactive immunity provisions of the Foreign Intelligence 
Surveillance Act as passed by the Intelligence Committee. I strongly 
support the Leahy substitute to the current legislation. It is my hope 
the Senate adopts this important measure. If it does, it will solve 
this particular problem. However, I am concerned that, once again, we 
will return to a Foreign Intelligence Surveillance Act that will grant 
retroactive immunity to telecom companies.
  As my colleagues know, I have strongly opposed retroactive immunity 
for the telecommunications companies that may have violated the privacy 
of millions of our fellow citizens. Last month, I opposed retroactive 
immunity on the Senate floor for more than 10 hours. The bill was 
withdrawn that day, but I am concerned that tomorrow retroactive 
immunity will return, and I am prepared to fight it again.
  Since last month, little has changed. Retroactive immunity is as 
dangerous to American civil liberties as it was last month, and my 
opposition to it is just as passionate. The last 6 years have seen the 
President--the Bush administration's pattern of continual abuses 
against civil liberties.
  Again, if this were the first instance and it went on for a few 
months, a year, these companies acquiescing to an administration's 
request, an administration that had made it its business to protect the 
basic liberties of Americans throughout its terms in office, I would 
not be standing here. I am not so rigid, so doctrinaire that I am 
unwilling to accept that at times of emergency such as in the wake of 
9/11, you might have such a request being made by an administration--
not that I think it is right, but it could happen. I would say if it 
did and a handful of companies for a few months or a year, even, 
complied with it and went forward, I wouldn't be happy about it, but I 
would understand it. But that is not what happened here. That is not 
what this administration has been involved in. From Guantanamo, from 
Abu Ghraib,

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from rendition, secret prisons, habeas corpus, torture, a scandal 
involving the Attorney General's Office, the U.S. attorneys offices 
around the country--how many examples do you need to have? How many do 
we have to learn about to finally understand that we have an 
administration regrettably that just doesn't seem to understand the 
importance of the rule of law, the basic rights and liberties of the 
American public?
  My concern is that we had a pattern of behavior, almost nonstop, 
going on some 6 years and still apparently ongoing today. Then add that 
to the fact that this collection of data, this collection of 
information went on not for 6 months or a year but for 5 long years and 
would have continued, had there not been a story in the media which 
uncovered, through a whistleblower, that this was going on. It would 
still be going on today, despite the absence of any court order, or a 
warrant being granted by the FISA courts. There is a pattern of 
behavior that is going unchecked, and behavior went on for more than 5 
years. That is why I stand here, because I am not going to tolerate--at 
least this Member is not--accepting these abuses and granting 
retroactive immunity. It is, once again, a walking away from this 
problem, inviting even more of the same in the coming days.
  It is alleged, of course, that the administration worked outside the 
law with giant telecom corporations to compile Americans' private 
domestic communications--in other words, a database of enormous scale 
and scope. Those corporations are alleged to have spied secretly and 
without warrant on their own American customers.
  Here is only one of the most egregious examples. According to the 
Electronic Frontier Foundation:

       Clear, first-hand whistleblower documentary evidence 
     [states] . . . that for year on end every e-mail, every text 
     message, every phone call carried over the massive fiber-
     optic links of sixteen separate companies routed through 
     AT&T's Internet hub in San Francisco--hundreds of millions of 
     private, domestic communications--have been . . . copied in 
     their entirety by AT&T and knowingly diverted wholesale by 
     means of multiple ``splitters'' into a secret room controlled 
     exclusively by the NSA.

  Those are not my words; those are the words of the Electronic 
Frontier Foundation. To me, those facts speak clearly. If true, they 
represent an outrage against privacy, a massive betrayal of trust.
  I know many see this differently. No doubt they do so in good faith. 
They find the telecoms' actions defensible and legally justified. To 
them, immunity is a fitting defense for companies that were only doing 
their patriotic duty. Perhaps they are right. I think otherwise, but I 
am willing to concede they may be right.
  But the President and his supporters need to prove far more than 
that. I think they need to show that they are so right and that our 
case is so far beyond the pale that no court ever need settle the 
argument, that we can shut down the argument here and now. That is what 
this will do. It will shut down this argument, and we will never, ever 
know what data was collected, why, who ordered this, who was 
responsible, if we grant retroactive immunity.
  Retroactive immunity shuts the courthouse door for good. It settles 
the issue with politicians, not with judges and jurist, and it puts 
Americans permanently in the dark on this issue. Did the telecoms break 
the law? I have my own strong views on this but, candidly, I don't 
know. That is what courts exist for. Pass immunity, and we will never 
know the answer to that question. The President's favorite corporations 
will be unchallenged. Their arguments will never be heard in a court of 
law. The truth behind this unprecedented domestic spying will never see 
the light of day. The book on our Government's actions will be closed 
for good and sealed and locked and handed over to safekeeping of those 
few whom George Bush trusts to keep a secret.
  Over the next couple of days, I will do my best to explain why 
retroactive immunity is so dangerous and, conversely, why it is so 
important to President Bush. But first it would be useful to consider 
the history of the bill before us, as I did at the outset of my 
remarks, and how it fits into the history of the President's 
warrantless spying on Americans.
  For years, President Bush allowed Americans to be spied on with no 
warrant, no court order, and no oversight. The origins of this bill, 
the FISA Amendments Act, lie in the exposure of that spying in 2005.
  That year, the New York Times revealed President Bush's ongoing abuse 
of power. To quote from that investigation:

       Under a presidential order signed in 2002, the National 
     Security Agency has monitored the international telephone 
     calls and international e-mail messages of hundreds, perhaps 
     thousands of people inside the United States without warrants 
     over the past 3 years.

  In fact, we later learned that the President's warrantless spying was 
authorized as early as 2001. Disgraced former Attorney General Alberto 
Gonzales, in a 2006 white paper, attempted to justify that spying. His 
argument rested on the specious claim that in authorizing the President 
to go to war in Afghanistan, Congress had also somehow authorized the 
President to listen in on the phone calls of Americans. But many of 
those who voted on the original authorization of force found this claim 
to new Executive powers to be laughable.
  Here is what former majority leader Tom Daschle wrote at the time or 
shortly thereafter:

       As Senate majority leader . . . I helped negotiate that law 
     with the White House counsel's office over two harried days. 
     I can state categorically that the subject of warrantless 
     wiretaps of American citizens never came up. . . . I am also 
     confident that the 98 senators who voted in favor of 
     authorization of force against al Qaeda did not believe that 
     they were also voting for warrantless domestic surveillance.

  Such claims to expand Executive power based on the authorization for 
military force have since been struck down by the courts.
  Recently, the administration has changed its argument, now grounding 
its warrantless surveillance power in the extremely nebulous authority 
of the President to defend the country that they find in the 
Constitution. Of course, that begs the question, exactly what doesn't 
fit in under defending the country? If we take the President at his 
word, we would concede to him nearly unlimited power, power that 
belongs in this case in the hands of our courts. Congress has worked to 
bring the President's surveillance program back where it belongs--under 
the rule of law. At the same time, we have worked to modernize FISA and 
ease restrictions on terrorist surveillance.
  The Protect America Act, a bill attempting to respond to the two-
pronged challenge--poorly, in my view--passed in August. But it is set 
to expire this coming February. The bill now before us would create a 
legal regime for surveillance under reworked and more reasonable rules.
  But crucially, President Bush has demanded that this bill include 
full retroactive immunity for corporations complicit in domestic 
spying. In a speech on September 19, he stated that ``it's particularly 
important for Congress to provide meaningful liability protection to 
those companies.'' In October, he stiffened his demand, vowing to veto 
any bill that did not shield the telecom corporations. And last month, 
he resorted to shameful, misleading scare tactics, accusing Congress of 
failing ``to keep the American people safe.'' That is absolutely 
outrageous. An American President, at a time when there are serious 
threats and reliable information that the threat still persists, an 
American President is saying: Despite your efforts to modernize FISA by 
providing the additional tools we need for proper surveillance on 
terrorist activities, I will veto this bill, I will deny you this 
legislation, if you don't provide protection for a handful of 
corporations that violated the law. That is an incredible admission, 
the fact that he is willing to lose all of the efforts we are making to 
modernize FISA in order to grant retroactive immunity so you are not in 
a court of law. Who is putting the country at greater risk? That is 
what the debate is about. That is what the President has said. He will 
veto the bill if we don't provide protection for a handful of 
corporations that, for 5 long years, when

[[Page 750]]

their legal departments knew exactly what the law was--AT&T was 
involved in the drafting of the FISA legislation in 1978. How can that 
company possibly claim they didn't know what the law of the land was 
when it came to FISA, going before the secret FISA courts, getting 
those warrants to allow for the Government to go in and do the proper 
surveillance and grant the immunity that these companies would receive 
under that kind of a situation. To avoid that court altogether was 
wrong. For 5 long years, they did that.
  Now the President says: I don't care what Jay Rockefeller or what Kit 
Bond or what the Intelligence Committee has done to modernize FISA. If 
you don't give me those protections I want for those handful of 
corporations, then you are not going to get this bill that modernizes 
the surveillance on terrorist activity.
  The very same month, the FISA Amendments Act came before the Senate 
Select Committee on Intelligence. Per the President's demand, it 
included full retroactive immunity for the telecom corporations. Don't 
give me it, I will veto the bill. And the committee went along. Senator 
Nelson of Florida offered an amendment to strip that immunity and 
instead allow the matter to be settled in the courts. It failed on a 3-
to-12 vote in committee. As it passed out of the Intelligence Committee 
by a vote of 13 to 2, the bill still put corporations literally above 
the law and assured that the President's invasion of privacy would 
remain a secret.
  At that time, I made public my strong objections on immunity, but the 
bill also had to pass through the Judiciary Committee. Through an open 
and transparent process, the Judiciary Committee amended several 
provisions relating to title I and reported out a bill lacking the 
egregious immunity provisions. However, I am still concerned that when 
Senator Feingold proposed an amendment to strip immunity for good, it 
failed by a vote of 7 to 12 in the committee.
  So here we are, facing a final decision on whether the 
telecommunications companies will get off the hook for good without us 
ever knowing anything more about it, because if you grant immunity, 
that is it. We will never learn anything else. The President is as 
intent as ever he was on making that happen. He wants immunity back in 
this bill at all costs, including a willingness to veto very important 
legislation, without the meaningful provisions of this bill that would 
provide this country with the kind of protection and security we ought 
to have. He is willing to lose all of that. He is willing to trade off 
all of that to give a handful of corporations immunity.
  What he is truly offering is secrecy in place of openness. Fiat in 
place of law. And in place of the forthright argument of judicial 
deliberation that ought to be this country's pride, there are two 
simple words he offers: Trust me.
  I would never take that offer, not even from a perfect President. 
Because in a republic, power was made to be shared; because power must 
be bound by firm laws, not the whims of whomever happens to sit in the 
Executive chair; because only two things make the difference between a 
President and a king--the oversight of the legislative body, and the 
rulings of the courts.
  It is why our Founders formed this Government the way they did, with 
three branches of government coequally sharing the powers to govern. 
Each is a check on the other. That is what the Founders had been 
through: the absence of that.
  ``Trust me.'' Those two small words bridge the entire gap between the 
rule of law and the rule of men, and it is a dangerous irony that when 
we need the rule of law the most, the rule of men is at its most 
seductive.

       It is a universal truth that the loss of liberty at home is 
     to be charged to the provisions against danger . . . from 
     abroad.

  Let me repeat that.

       It is a universal truth that the loss of liberty at home is 
     to be charged to the provisions against danger . . . from 
     abroad.

  That is from James Madison, the father of our Constitution. He made 
that prediction more than two centuries ago. If we pass immunity, and 
put our President's word above the courts and witnesses and evidence 
and deliberations, we bring that prophecy a step closer to coming true.
  I repeat it again:

       It is a universal truth that the loss of liberty at home is 
     to be charged to the provisions against danger . . . from 
     abroad.

  James Madison.
  So that is the deeper issue behind this bill. That is the source of 
my passion, if you will. I reject President Bush's ``trust me'' because 
I have seen what we get when we accept it.
  I go back and mention just the maze, the list of egregious violations 
of the rule of law over the last 6 years. With that aside, were this a 
Democratic administration that would suggest this, I would be as 
passionate about it, not because I distrust them necessarily but 
because once we succumb to the passions or the desires of the rule of 
men over the rule of law, then we trade off the most important 
fundamental essence of who we are as a people.
  We are a nation of laws and not men. How many times have we heard 
that? You learn that in your first week of constitutional law. You 
learn in your American history class as a high school student the 
importance of the rule of law. If we walk away from that, then, of 
course, we walk away from who we are as a people.
  After all of that, President Bush, of course, comes to us in all 
innocence and begs, once again: Trust me. He means it literally. Here 
in the world's greatest deliberative body only a small handful of 
Senators know even the barest facts; only a tiny minority of us have 
even seen the classified documents that explain exactly what the 
telecoms have done, exactly what actions we are asked to make legally 
disappear.
  I have been a Member of this body for over a quarter of a century. I 
am a senior member of the Foreign Relations Committee. I have no right 
to see this? As a Member of this body, as a senior member of the 
Foreign Relations Committee, I am prohibited. Only the administration 
can see this and one or two people here who are granted the right to 
actually see and understand what went on.
  So we are being asked as a body to blindly grant this immunity, take 
this issue away entirely so no one can ever learn anything more about 5 
long years of millions--millions--of Americans, with their private 
phone conversations, their faxes, and e-mails. Every word uttered is 
now being held and kept. And this administration knows it. The people 
in charge of it know it. And we want to find out why this happened, who 
ordered this, who provided this. If we grant this immunity, we will 
never know the answers to those questions.
  So as far as the rest of us--we are flying blind. And in that state 
of blindness, we can only offer one kind of oversight. The President's 
favorite kind: the token kind. And here, in the dark, we are expected 
to grant President Bush's wish. Because, of course, he knows best. Does 
that sound familiar to any of my colleagues?
  In 2002, we took the President's word and faulty intelligence on 
weapons of mass destruction, and we mistakenly approved what has become 
the disaster in Iraq.
  Is history repeating itself in a small way today? Are we about to 
blindly legalize gravely serious crimes?
  If we have learned anything--if we have learned anything at all--it 
must be this: Great decisions must be built on equally strong 
foundations of fact. Of course, we are not voting to go to war today. 
Today's issue is not nearly as immense, I would argue. But one thing is 
as huge as it was in 2002; and that is, the yawning gap between what we 
know and what we are asked to do.
  So I stand again and oppose this immunity--wrong in itself, 
grievously wrong, I would add, in what it represents: contempt for 
debate, contempt for the courts, and contempt for the rule of law. As I 
did in December, I will speak against that contempt as strongly as I 
can.
  So I will reserve further debate and discussion for tomorrow, as we 
go forward with this. I say this respectfully to my colleagues. I do 
not know if a cloture motion will be filed or not, but

[[Page 751]]

I hope there will be enough people who will join me.
  This bill can go forward without this immunity in it. And it ought to 
go forward. There are some amendments that will be offered, some of 
which I will support. There are ideas to improve on the FISA provisions 
of the bill to see to it that the Foreign Intelligence Surveillance Act 
will do exactly what we want it to do: to allow us to get that 
surveillance on those who would do us harm and simultaneously make sure 
that basic liberties are going to be protected.
  But I will do everything in my power, to the extent that any one 
Member of this body can, to see to it we do not go forward in the 
provision of this bill that grants retroactive immunity for the 
egregious misbehavior, to put it mildly, that went on here.
  The courts may prove otherwise. I do not know. Maybe someone will 
prove what they did turned out to be legally correct. But we are never 
going to know that if we, as a body--Democrats and Republicans--walk 
away from the rule of law and deny the courts of this land which have 
the ability to do this. The argument that you cannot rely on the courts 
to engage in a deliberation involving information that should be held 
secret is wrong. We have done it on thousands of cases over the years, 
and we can do it here.
  So I hope there will be those who will join me in saying to the 
President: If you want to veto this bill, go ahead. You veto it because 
you did not get your corporations' immunity. You explain that to the 
American public, why we did not have the tools available that kept 
America safe from those who would do us harm--because a handful of 
corporations decided to violate the law, in my view, and did so because 
the Bush administration asked them to do that. You are going to veto 
this bill to deny us those tools that our intelligence communities 
ought to have to protect American citizens at a dangerous time. You 
make that decision.
  So when this debate continues tomorrow, I will offer some additional 
thoughts in support of the Leahy amendment. I will be offering my own 
amendment, to strike retroactive immunity, and I will be considering 
other amendments along the way.
  If all of that fails, then I will engage in the historic rights 
reserved in this body for individual Members to talk for a while, to 
talk about the rule of law, and to talk about the importance of it. I 
do not think I have ever done this before. I have been here a long 
time, and I rarely engage in such activities. I respect those who have.
  The Founders of this wonderful institution granted the rights of 
individual Senators to be significant, including the power of one 
Senator to be able to hold the floor on an important matter about which 
they care deeply. I care deeply about this issue. I think all of my 
colleagues do. I just hope they will care enough about it to see to it 
this bill does not go forward with the precedent-setting nature of 
granting immunity in this case. It is not warranted. It is not 
deserved. It was not a minor mistake over a brief period of time.
  There is a pattern of behavior, and it went on for too long, and it 
would still go on if it had not been for a report done by a newspaper 
and a whistleblower who stood up within the phone company, who had the 
courage to say this was wrong, or we would still be engaged in these 
practices today.
  I think we as a body--Democrats and Republicans--need to say to this 
administration, and all future administrations, that you are not going 
to step all over the liberties and rights of American citizens in the 
name of security. That is a false choice, and we are not going to 
tolerate that and set the precedent tonight or tomorrow by agreeing to 
such a grant of immunity in this bill.
  Mr. President, I appreciate the patience of the Chair and yield the 
floor.

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