[Congressional Record (Bound Edition), Volume 154 (2008), Part 2]
[Senate]
[Pages 1875-1891]
[From the U.S. Government Publishing Office, www.gpo.gov]




                                  FISA


                           Amendment No. 3927

  Mr. SPECTER. Mr. President, I have sought recognition to comment on a 
pending amendment sponsored by Senator Whitehouse and myself. I am 
delighted to see Senator Whitehouse occupying the chair. I have a 
receptive, though a limited, audience.
  I begin by thanking the Senate personnel for staying late. Monday is 
a day when I customarily travel the State--Scranton, Harrisburg--and 
arrive late in the day. I am pleased to see Senator Dodd is also 
speaking so that my late arrival is not the sole cause. But we do have 
to work late because the majority leader has scheduled votes on these 
issues tomorrow. I wanted an opportunity to supplement earlier 
statements which I made on this issue because I believe it is an 
important issue on which the Senate needs to focus.
  The legislation and oversight and judicial review since 9/11 have 
provided a historic confrontation among the three branches of 
Government on the basic doctrine of separation of powers. When I say it 
is historic, I do not believe that is an overstatement. There is no 
doubt that the events of 9/11 require a vigorous response by the United 
States to fight terrorism. The brutal, heinous murder of 3,000 
Americans and the continuing threat of al-Qaida worldwide require that 
we fight terrorism with great vigor. At the same time, it is important 
that constitutional rights be maintained. The fact is that the Congress 
has been very ineffective in limiting the expansion of Executive power. 
Only the courts have been able to maintain a balance.
  The specific issue involves the effort to give the telephone 
companies retroactive immunity and foreclose some 40 lawsuits in some 
Federal court which are pending at the present time. There is no doubt 
that the information reportedly obtained by the telephone companies for 
national security is vital and needs to be maintained. But there is a 
way to keep that information flowing and still maintain the 
constitutional balance by implementing the amendment which Senator 
Whitehouse, the Presiding Officer, and I have introduced, the essence 
of which is to substitute the U.S. Government as the party defendant.
  In that situation, the Government would have the identical defenses 
the telephone companies now have--no more, no less. For example, 
customarily the Federal Government has the defense of sovereign 
immunity. You can't sue the Federal Government unless the Government 
consents or unless the Congress of the United States says you can sue 
the Government. The Congress of the United States is the final 
determiner of that; of course, with Presidential signature or with an 
override, if the President vetoes.
  So in this situation, the Government being substituted for the 
telephone companies would not have the governmental immunity defense 
because the telephone companies do not have it. The Government would 
have the state secrets defense because it has intervened in the cases 
against the telephone companies to assert the defense of state secrets, 
so that if state secrets are involved, that may block the plaintiffs' 
cases. Under our amendment the Government would continue to have the 
availability of a state secrets defense.
  I doubt very much there will be any monetary awards in these cases, 
but that is not for me to decide. That is for the judicial process to 
decide, to run its course.
  When I say the legislative branch has not been successful in 
oversight in limiting the expansion of Executive power, I do so because 
of what has happened with the terrorist surveillance program.
  The Foreign Intelligence Surveillance Act is an explicit statute 
which is the law of the land, explicitly stating that wiretapping can 
occur only with judicial authority. The tradition is for the Government 
to present an affidavit containing probable cause to warrant the 
wiretap that goes before a judge. The judge reviews it. If probable 
cause is present, then there may be an invasion of privacy under our 
Constitution with that constitutional safeguard of a neutral 
magistrate.
  The President has taken the position that he does not have to be 
bound by the Foreign Intelligence Surveillance Act because of his 
article II powers under the Constitution. He is arguing that the 
statute cannot affect the President's constitutional authority, and he 
is correct as a principle of law. But the question is whether he has 
that authority. And the terrorist surveillance program was secret from 
the time it was put into effect shortly after 9/11/2001 until mid-
December 2005, when the Senate was in the midst of the final day of 
debate on the PATRIOT Act re-authorization, which was to give the law 
enforcement authorities broader power.
  I chaired the Judiciary Committee at that time and was arguing to 
move ahead with the PATRIOT Act re-authorization when that morning the 
news came across that there had been a secret program in effect. That 
scuttled our efforts to get the PATRIOT Act passed that day, with the 
comment being made that some were prepared to vote for the PATRIOT Act 
re-authorization until they found out about this secret program they 
hadn't known about.
  A long time has passed since December 2005. That matter is still tied 
up in the courts. But the courts, at least, are available to make a 
decision on that ultimately--it may take some time, but to make a 
decision on it.
  Similarly, the administration, the President has ignored the National 
Security Act of 1947 which explicitly states that the executive branch 
must give notice to the intelligence committees of the House and Senate 
where programs are carried out like the terrorist surveillance program. 
The President did not follow that statute. Again, the underlying 
contention is that he has power under article II so that he doesn't 
have to follow the statute.
  Finally, he did make those matters available. He did so on the eve of 
the confirmation of General Hayden as head of the Central Intelligence 
Agency. So finally, under political pressure--he couldn't get General 
Hayden confirmed unless he made them available--he did so.
  We have had other illustrations. We have had the signing statements 
where the President issues a statement when he signs legislation into 
law which modifies what Congress has passed.
  I will be very specific. The Constitution provides that each House 
passes legislation. There is a conference submitted to the President. 
He either signs it or vetoes it. But when the President got the PATRIOT 
Act re-authorization with provisions which had been negotiated as to 
Judiciary Committee oversight on how those law enforcement powers could 
be carried out, the President issued a signing statement--and this had 
been negotiated between the Judiciary Committee and the President's 
employees--the President issued a signing statement and changed the 
thrust of the statute.
  In a widely publicized matter involving interrogation techniques, the 
Senate passed, on a 90-to-9 vote, limitations on Executive power in the 
Detainee Treatment Act. There was a meeting between President Bush and 
Senator McCain, author of the provision, limiting executive authority. 
We passed the bill, and the President signed it but with reservation 
that his executive authority under article II did not deprive him of 
authority to handle the situation as he chose. But in the midst of all 
this, the courts have been effective. The courts have limited Executive 
power.
  In the case of Hamdan v. Rumsfeld, the Supreme Court held that the 
President's military commissions violated the Uniform Code of Military 
Justice and lacked any congressional authorization. In short, the Court 
held the President cannot establish a military commission to try Hamdan 
unless Congress granted him the authority to do so.
  In Hamdi v. Rumsfeld, the Supreme Court said that due process 
requires a citizen held as an enemy combatant be

[[Page 1876]]

given a meaningful opportunity to contest the factual basis for that 
detention before a neutral decisionmaker.
  In the celebrated case of Rasul v. Bush, the Supreme Court held that 
the Federal habeas corpus statute gave district courts jurisdiction to 
hear challenges by aliens held at Guantanamo Bay.
  In Doe v. Gonzales in September of last year, the U.S. District Court 
for the Southern District of New York struck down the permanent gag 
orders issued with national security letters as a violation of the 
First Amendment.
  In Hepting v. AT&T, Chief Judge Vaughn Walker of the Northern 
District of California held that the publicly available information 
concerning the terrorist surveillance program was not subject to the 
state secrets defense.
  In the very heavily publicized case of Padilla, the fourth circuit 
initially held that the executive had the authority to hold Padilla as 
an enemy combatant in September of 2005. Then when Padilla petitioned 
the Supreme Court for certiorari, it looked as if that might be 
overturned. The Government moved for authorization to transfer Padilla 
and to vacate the decision. They anticipated an unfavorable decision 
and they tried to moot it out; that is, render it meaningless. Judge 
Luttig, writing for the fourth circuit, was very strong in rejecting 
the Government's position, saying this:

       Because we believe that the transfer of Padilla and the 
     withdrawal of our opinion at the government's request while 
     the Supreme Court is reviewing this court's decision of 
     September 9 would compound what is, in the absence of 
     explanation, at least an appearance that the government may 
     be attempting to avoid consideration of our decision by the 
     Supreme Court, and also because we believe that this case 
     presents an issue of such especial national importance as to 
     warrant final consideration by that court--

  That is, the Supreme Court--

     we deny both the motion and the suggestion.

  Pretty strong language, telling the Government what they can and what 
they can't do.
  The Government is not going to listen to the Congress, but the 
Government listens to the court.
  When the issue arose as to the destruction of the CIA tapes, Senator 
Leahy and I wrote the Attorney General asking for information as to 
what had happened, and the Attorney General wrote back and said: We are 
not going to give you any information at this time. But we got no 
information. Then the word was that it was political, what was being 
done. Then a Federal district court ordered the Government to file a 
report with the court as to what had happened on the destruction of the 
CIA tapes. Well, nobody said the court decision was political. You 
can't challenge the judicial decision except to take an appeal, and 
that is the process we follow.
  I recently made a trip to Pakistan. Congressman Patrick Kennedy and I 
went to Pakistan to take a look at what was going on there because 
Pakistan is so important. The country has nuclear weapons but a very 
unstable government. We met with President Musharraf. We were scheduled 
to meet with Benazir Bhutto at 9 p.m. on December 27. While we were 
preparing for the meeting--she had scheduled it at 9 o'clock in the 
evening because she had a full day of campaign activities. While we 
were preparing for the meeting, we found out about 6:30, 7 o'clock, she 
had been assassinated, which was a terrible blow, not only on a 
personal level. I had come to know her to some extent when she was 
Prime Minister of Pakistan. But she had the potential as an 
extraordinary political figure to unify Pakistan. She had a remarkable 
educational background. She was educated at Harvard, also at Oxford; 
very glamorous, movie star beautiful, a great political figure with a 
chance to unify the country. Now we start from scratch.
  Congressman Kennedy and I questioned President Musharraf about what 
he was doing. He had gotten $10 million since 9/11 to act against al-
Qaida. Why hadn't Osama bin Laden been captured? There were a lot of 
indications that the money was not being used for the purpose for which 
it was appropriated. President Musharraf said to Congressman Kennedy 
and me that he didn't like the conditionality, and we pointed out to 
him that is the way we function. We don't give $10 million for use by 
President Musharraf any way he likes. Then we raised a question about 
what President Musharraf was doing with the Supreme Court. He held the 
Chief Justice in house arrest. He dismissed many of the justices. He 
appointed a favorable Supreme Court. Well, the United States is not 
Pakistan. In Pakistan, the chief executive, President Musharraf, tells 
the Supreme Court what to do. He suspends the Chief Justice. He fires 
half of the court.
  In the United States, under our checks and balances, the President of 
the United States listens to what the Supreme Court of the United 
States says. A fundamental of our society is the separation of powers. 
That is the very basis of how we function in the United States, with 
the executive having certain powers, the Congress having certain 
powers, and the Court having certain powers. Regrettably, the evidence 
is conclusive that the Congress has been ineffective in congressional 
oversight. The protocol is the chairman of the Judiciary Committee and 
the ranking member are told about what is happening on serious 
constitutional issues. I was chairman of the Judiciary Committee when 
the terrorist surveillance program was in operation, and neither the 
ranking member, Senator Leahy, nor I, were told about what was going 
on. The President is taking the position that he is not bound by 
statute, and he may be right. He may be right, but in our society, the 
courts have to make that decision.
  I believe it would be a serious step to close down the courts where 
some 40 cases are pending. Let them go through the judicial process. 
Now if we had a choice of having the benefit of what the telephone 
companies are doing and closing down the courts, that might be one 
thing. But Senator Whitehouse and I have structured an amendment, 
cosponsored by other Senators, to have both of those benefits 
operative. We can maintain the telephone companies providing whatever 
information they are providing, and at the same time keep the courts 
open by substituting the Government as the party defendant.
  We are continuing in the midst of an historic confrontation. It is 
testing the mettle of our constitutional process. It is testing the 
mettle of our constitutional process because of the importance of being 
vigorous in fighting al-Qaida. The telephone companies have been good 
citizens and they ought not to be held liable for whatever it is they 
have done. But the Government can step in, and if there are verdicts 
which, as I say, I very much doubt, it is a cost of national defense. 
It ought to be paid by the Treasury of the United States, and the 
courts ought to be kept open.
  Senator Dodd is about to address the Chamber. I know he is opposed to 
granting retroactive immunity, and he has a very powerful argument, and 
may the Record show he is nodding in the affirmative. That is what we 
lawyers do when we have a little support, even if it is only a nod of 
the head or a gesture. I greatly admire what Senator Dodd is doing here 
and what he has done since he was elected to the Senate in 1980. He and 
Senator Alan Dixon came to the Senate at the same time as two newly 
elected Senators on the Democratic side of the aisle. They were 
outnumbered by Republican Senators who were elected, 16 of us for that 
election, 16 to 2. But now Senator Dodd has narrowed the odds and only 
Senator Grassley and I remain of those 16, so it is only 2 to 1. Of 
course, when it was 2 to 16 it was a fair fight, and when it is 1 to 2, 
Senator Dodd may have the advantage. Who knows. I say that only in 
jest. But we are about to hear some strong arguments and some real 
oratory on these issues.
  But we don't have to make a choice between having the information and 
having the courts open. You can do both if the amendment which Senator 
Whitehouse and I have offered is adopted.
  I thank the Chair and yield the floor and defer to my distinguished 
colleague from Connecticut.
  The PRESIDING OFFICER. The Senator from Connecticut is recognized.
  Mr. DODD. Mr. President, first, let me thank my good friend from 
Pennsylvania, whom I always enjoy listening to. I enjoyed particularly 
hearing

[[Page 1877]]

his comments about President Musharraf and Benazir Bhutto, who I had 
the privilege and pleasure of knowing for some time over the last 20 
years. As do all of us here, I care deeply about what happens in 
Pakistan, and I admire remarkable leadership. I was stricken by her 
loss and the tragic way in which she lost her life in her effort to 
bring democracy to her country. So I associate myself with the remarks 
of Senator Specter who was there, I know. In fact, I listened with 
great interest to his comments and thoughts at the time when he and 
Congressman Patrick Kennedy were there on a mission together. So I once 
again thank him.
  I know he talked about our arrival some 27 years ago, when the two of 
us arrived here, and it is true there were 16 Republicans and two 
Democrats. I always like to point out that there are two fine 
Republicans still here, Senator Grassley and Senator Specter, and 50 
percent of the Democrats who were elected that year are still in this 
Chamber. So I remain of the two of us, Alan Dixon being the other 
Member.
  I look up and I see the Presiding Officer. Any time I get up to 
address this issue, the distinguished Senator from Rhode Island is the 
Presiding Officer. He has heard my thoughts on this issue now since 
December. I think it has been almost 20 hours I have spoken on the 
subject matter of the Foreign Intelligence Surveillance Act and the 
issue of retroactive immunity. I will be trying to convince my 
colleagues to vote against cloture tomorrow so we can force the 
committees to go back and adopt the Judiciary Committee approach rather 
than the one adopted by the Intelligence Committee which gives 
retroactive immunity to the telecom industry.
  I note as well that the House, the other body, in its consideration 
of this matter, agreed with the Judiciary Committee and did not include 
retroactive immunity in their Foreign Intelligence Surveillance Act 
amendments. The House reached the conclusion that the retroactive 
immunity was not warranted, that the courts should be given the 
opportunity to decide the legality or illegality of the telecom 
industry's decision to agree to the administration's request to allow 
the unfettered surveillance of millions of telephone calls, faxes, and 
e-mails.
  Senator Feingold of Wisconsin and I have offered an amendment to 
strike section 2 of the bill, which would then put the legislation 
roughly on parity with the House-passed legislation and deliver that to 
the President. The President has said: If you do that, I will veto the 
bill, which I regret deeply. The idea that you veto all of the other 
amendments dealing with foreign intelligence because you didn't provide 
retroactive immunity to a handful of telephone companies is rather 
breathtaking when you consider the vulnerability that can pose and the 
inability of us to collect the important surveillance, the intelligence 
we need to keep our country secure and safe.
  Mr. President, I am not normally accustomed to engaging in lengthy 
conversations about any subject. Certainly it is the privilege and 
right of every Senator to engage in extended debate on a subject about 
which they care passionately. I cannot think of another occasion in the 
last 20 years, 25 years, when I have engaged in extended debate on any 
subject matter. It doesn't suggest there haven't been moments when I 
thought it was warranted, and others certainly provided that 
opportunity or we resolved the matters prior to using that tool that 
has been available to every Member of this Chamber since the founding 
of our Republic. But I care deeply about this issue. It is not just a 
passing issue; it is not just one section of a bill.
  It goes far beyond the words or language of even the companies 
involved here. It goes to the very heart of who we are as a nation, as 
a people. Our willingness or ability to understand the value and 
importance of the rule of law is an issue that transcends any other 
issue we grapple with, the understanding of how important it is to 
protect and defend the rule of law, our Constitution, to guarantee the 
rights and liberties of every citizen of our country.
  Tonight, I will engage in a rather lengthy conversation about this 
issue, with my apologies to the staff and others who have to spend time 
listening to this conversation. But I want people to know how important 
this issue is. This is very important. It doesn't get any more 
important than this one as to whether millions of Americans' telephone 
conversations, e-mails, and faxes over the past 5 years were listened 
to, eavesdropping that would still be ongoing were it not for disclosed 
reports by journalists and a whistleblower that revealed this program. 
It would still be ongoing, without a court order and without a warrant. 
That is dangerous.
  The very rationale which gave birth to the FISA some three decades 
ago was specifically designed to deal with the very fact situation that 
causes me to rise and talk about this subject matter this evening. FISA 
intended to balance two legitimate issues--gathering information to 
keep us secure, while protecting the rights and liberties of every 
single American citizen against an unwarranted invasion of their 
privacy. It has never been easy to maintain that balance. It is never 
perfect, as I said earlier this afternoon, but it ought to be our 
common goal, regardless of party and ideology, to do our very best to 
strike that balance. That is what this issue is, and that is why it is 
so important.
  If we set the precedent by a vote tomorrow that keeps this provision 
in the bill, and it remains so in the conference with the House of 
Representatives, we will be setting a precedent which, I suspect, 
future administrations may point to under a different fact situation, 
at a different hour, at a different time, when they may decide it is 
not in their interest to go to a FISA Court. The next request by an 
administration to provide information may be medical or financial or 
highly personal information, and they will point to a time when the 
Senate was given the opportunity to insist that a series of telephone 
companies go to the courts of this country to determine whether they 
did the legal thing by turning over information, and the Senate said: 
No, we are going to grant retroactive immunity.
  We will never determine whether you had the right to do so, and 
implicitly it would sanction the activity by our refusal to strike the 
language granting the immunity. That is what is at stake in the vote 
tomorrow, if we are unable to defeat cloture.
  That is why I am determined to do everything I can to convince my 
colleagues of an alternative course. So I urge my colleagues, in the 
strongest terms that I can, to vote to strip the retroactive immunity 
from this bill and, if it is not stripped, to vote against cloture.
  Not only would this bill ratify a domestic spying regime that has 
already concentrated far too much unaccountable power in the 
President's hands, in its current form it places above the law the 
telecommunications companies that may have violated the privacy and 
trust of millions of American citizens.
  In December, I opposed retroactive immunity on the Senate floor for 
some 10 hours in this Chamber. In the weeks since then, I have 
continued to speak out against it.
  Unwarranted domestic spying didn't happen in a panic or short-term 
emergency--not for a week or a month or even a year. If it had, I might 
not be here this evening. But the spying went on, relentlessly, for 
more than five years. And if the press didn't expose it, I imagine it 
would still be happening today.
  I might not be here either if it had been the first offense of a new 
administration. Maybe not if it even had been the second or third, I 
might add. I am here this evening because after offense after offense 
after offense, my frustration has found its breaking point. I am here 
this evening because of a pattern of continual abuses against civil 
liberties and the rule of law. When faced with that pattern, we should 
not act in the interest of the Democratic Party or the Republican 
Party. We should act in the interest of the Constitution of the United 
States because we are, above anything else, its temporary custodians. 
If these abuses had been committed by a President of my own

[[Page 1878]]

party, I would have opposed them just as passionately as I do this 
evening.
  I am here tonight because of the latest link in that long chain of 
abuse. It is alleged that giant telecom corporations worked with our 
Government to compile America's private domestic communications records 
into a database of enormous scale and scope. Secretly and without a 
warrant, these corporations are alleged to have spied on their own 
American customers.
  Here is only one of the most egregious examples: According to the 
Electronic Frontier Foundation:

       Clear, firsthand whistleblower documentary evidence 
     [states] . . . that for year on end, every e-mail, every text 
     message, and 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.

  The phone calls of millions of Americans diverted into a secret room 
controlled by the NSA. That allegation still needs to be proven in a 
court of law. But before that happens, there is an even simpler 
question: What do you see in it?
  If you only see cables and computers there, the whole thing seems 
almost harmless. Certainly nothing to get worked up about--a routine 
security sweep and a routine piece of legislation authorizing it. If 
that is what you see in the NSA's secret room, I imagine you will vote 
to extend that immunity.
  If you see a vast dragnet for millions of Americans' private 
conversations, conducted by a Government agency without a warrant, then 
I believe you will recognize what is at stake. You will see that what 
is at stake is the sanctity of the law and the sanctity of our privacy 
as American citizens. You will then oppose this retroactive immunity.
  Maybe that sounds overdramatic to some of my colleagues. They will 
ask: What does it matter, at the end of the day, if a few corporations 
are sued? They will say: This is a small issue, an isolated case. The 
law is still safe and sound.
  I find that view profoundly wrong. But I will give them this: As long 
as they keep this small, they win. As long as they keep this case 
isolated and technical, they win. As long as it is about a few 
lawsuits, and nothing more, they win. They are counting on the American 
people to see nothing bigger than that.
  I am counting on them to see more and to fear less. So much more is 
at stake than a few phone calls, a few companies, and a few lawsuits. 
Mr. President, equal justice is at stake--justice that makes no 
exceptions. Openness is at stake--an open debate on security and 
liberty, and an end to warrantless, groundless spying. Retroactive 
immunity stands against those principles.
  It doesn't say: I trust the American people; I trust the courts and 
judges and juries to come to just decisions. Retroactive immunity says: 
Trust me.
  There are classified documents, we are told, that prove the case for 
retroactive immunity beyond a shadow of a doubt. But we are not allowed 
to see them. I have served in this body for more than a quarter 
century, and I am not allowed to see these documents at all. I am told 
to trust somebody, believe people when they stand up and tell you 
exactly what is here. Neither are the majority of my colleagues allowed 
to see them. We are left entirely in the dark to draw the conclusion 
that there is nothing to be concerned about. The courts don't need to 
look at this.
  Obviously, I cannot speak for my colleagues, but I would never take 
``trust me'' for an answer--not even in the best of times.
  ``Trust me.'' It is the offer to hide ourselves in the waiting arms 
of the rule of men. I cannot put it better than this:

       ``Trust me'' government is government that asks that we 
     concentrate our hopes and dreams on one man; that we trust 
     him to do what's best for us. My view of government places 
     trust not in one person or one party, but in those values 
     that transcend persons and parties.

  Those words were spoken by Ronald Reagan in 1980, the former 
President of the United States. Those words are every bit as true 
today, even if some have chosen to forget them. But times of threat and 
fear blur our view of transcendent values; and those who would exploit 
those times urge us to save our skins at any cost.
  The rule of law has rarely been so fragile. It has really seemed less 
compelling. What, after all, does the law give us? It has no parades, 
no slogans; it lives in books and precedents. It cannot entertain us or 
captivate us or soothe our deepest fears. When set against everything 
the rule of men has to offer, the rule of law is mute.
  That is the precise advantage seized upon, in all times, by the law's 
enemies.

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

  Those are the words of James Madison, and they are worthy of 
repetition.

       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, the father of the Constitution, made that prediction 
more than two centuries ago. With the passage of this bill, his words 
would be one step closer to coming true. So it has never been more 
essential that we lend our voices to the law and speak on its behalf.
  This is our defining question, the question that confronts every 
generation of Americans since the founding of our Republic: the rule of 
law, or the rule of men?
  How many times must we get the wrong answer?
  To those who say this is just about a few telecoms, I answer that 
this is about contempt for the rule of law, large and small.
  This is about the Justice Department turning our Nation's highest law 
enforcement officers into patronage plums, and turning the impartial 
work of indictments and trials into the machinations of politics.
  This is about Alberto Gonzales coming before Congress to give us 
testimony that was, at best, wrong, and, at worst, perjury.
  This is about Congress handing the President the power to designate 
any individual he wants an ``unlawful enemy combatant,'' hold that 
individual indefinitely, and take away his or her rights to habeas 
corpus--the 700-year-old right to challenge your detention. If you 
think the Military Commissions Act struck at the heart of the 
Constitution, well, it struck at the Magna Carta while it was at it.
  If you think this only threatens a few of us, you should understand 
that the writ of habeas corpus belongs to all of us. It allows anyone 
to challenge their detention. Rolling back habeas corpus endangers us 
all. Without a day in court, how can you prove that you are entitled to 
a trial? How can you prove that you are innocent? In fact, without a 
day in court, how can you let anybody know what you have been detained 
for at all?
  The Military Commission Act also gave President Bush the power some 
say he wanted most of all: The power to get information out of 
suspected terrorists--by almost any means. The power to use evidence 
potentially gained from torture.
  This is about torture--officially sanctioned torture. As a result of 
decisions made at the highest levels of our Government, America is 
making itself known to the world with stories like this one: A prisoner 
at Guantanamo--to take one example out of hundreds--was deprived of 
sleep for over 55 days, a month and 3 weeks. Some nights he was doused 
with water or blasted with air conditioning. After week after week of 
this delirious, shivering wakefulness, on the verge of death from 
hypothermia, doctors strapped him to a chair--doctors, healers who took 
the Hippocratic oath to ``do no harm''--pumped him full of three bags 
of medical saline, brought him back from death, and sent him back to 
his interrogators.
  To the generation coming of age around the world in this decade, that 
is America. Not Normandy, not the Marshall Plan, not Nuremberg. 
Guantanamo.
  This is about the CIA destroying tapes containing the evidence of 
harsh

[[Page 1879]]

interrogations--about the administration covering its tracks in a way 
more suited to a banana republic than to the home of freedom.
  This is about waterboarding, a technique invented by the Spanish 
Inquisition, perfected by the Khmer Rouge, and in between, banned--
originally banned for excessive cruelty--by the Gestapo!
  Waterboarding's not torture? Listen to the words of Malcolm Nance, a 
26-year expert in intelligence and counterterrorism, a combat veteran, 
and former Chief of Training at the U.S. Navy Survival, Evasion, 
Resistance and Escape School.
  To those who say that this is just about a few telecoms, I answer: 
This is about contempt for the law, large and small.
  This is about the Justice Department turning our Nation's highest law 
enforcement offices into patronage plums, and turning the impartial 
work of indictments and trials into the machinations of politics.
  This is about Alberto Gonzales coming before Congress to give us 
testimony that was at best, wrong--and at worst, perjury.
  This is about Congress handing the President the power to designate 
any individual he wants an ``unlawful enemy combatant,'' hold him 
indefinitely, and take away his right to habeas corpus--the 700-year-
old right to challenge your detention. If you think that the Military 
Commissions Act struck at the heart of the Constitution, you would be 
understating things--it struck at the Magna Carta while it was at it.
  And if you think that this only threatens a few of us, you should 
understand that the writ of habeas corpus belongs to all of us--it 
allows anyone to challenge their detention. Rolling back habeas rights 
endangers us all: Without a day in court, how can you prove that you 
are entitled to a trial? How can you prove that you are innocent? In 
fact, without a day in court, how can you let anyone know that you have 
been detained at all?
  While training American soldiers to resist interrogation, he writes:

       I have personally led, witnessed and supervised 
     waterboarding of hundreds of people. . . . Unless you have 
     been strapped down to the board, have endured the agonizing 
     feeling of the water overpowering your gag reflex, and then 
     feel your throat open and allow pint after pint of water to 
     involuntarily fill your lungs, you will not know the meaning 
     of the word. . . .
       It does not simulate drowning, as the lungs are actually 
     filling with water. The victim is drowning. How much the 
     victim is to drown depends on the desired result . . . and 
     the obstinacy of the subject.
       Waterboarding is slow motion suffocation . . . usually the 
     person goes into hysterics on the board. . . . When done 
     right it is controlled death.

  In spite of all that, last week the White House declared that 
waterboarding is not torture, that waterboarding is legal, and that, if 
it chooses, America will waterboard again.
  This is about Michael Mukasey coming before the Senate and defending 
the President's power to openly break the law. When he came to the 
Senate before his confirmation, Mr. Mukasey was asked bluntly and 
plainly: Is waterboarding constitutional? Mr. Mukasey replied with a 
head-scratching tautology:

       If waterboarding is torture, torture is not constitutional.

  Surely we can expect a little more insight from someone so famously 
well versed in national security law. But Mr. Mukasey pressed on with 
the obstinacy of a witness pleading the Fifth:

       If it's torture. . . . If it amounts to torture, it is not 
     constitutional.

  And that is the best this noted jurist, this legal scholar, this 
longtime judge had to offer on the defining moral issue of this 
Presidency: claims of ignorance. Word games.
  And again last month, he refused categorically to denounce 
waterboarding. In fact, Mr. Mukasey was asked the easiest question we 
have in a democracy: Can the President openly break the law? Can he--as 
we know he has done already--order warrantless wiretapping, ignore the 
will of Congress, and then hide behind nebulous powers he claims to 
find in the Constitution?
  Mr. Mukasey's response: The President has ``the authority to defend 
the country.''
  And in one swoop, the Attorney General conceded to the President 
nearly unlimited power, as long as he finds a lawyer willing to stuff 
his actions into the boundless rubric of ``defending the country.'' 
Unlimited power to defend the country, to protect us as one man sees 
fit, even if that means listening to our phone calls, even if that 
means holding some of us indefinitely.
  This is about extraordinary rendition--outsourced torture. It is 
about men this administration prefer we did not know exist. But we do 
know.
  One was a Syrian immigrant raising his family in Canada as a citizen. 
He wrote computer code for a company called Math Works. He was planning 
to start his own tech business. On a trip through New York's JFK 
Airport, he was arrested by U.S. Federal agents. They shackled him and 
bundled him into a private CIA plane which flew him across the Atlantic 
Ocean to Syria.
  This man spent the next 10 months and 10 days in a Syrian prison. His 
cell was 3 feet wide, the size of a grave. Some 300 days passed alone 
in that cell, with a bowl for his toilet and another bowl for his 
water, and the door only opened so he could go wash himself once a 
week, though it may have been more or less because the cell was dark 
and he lost track of time.
  The door only opened for one reason: for interrogators who asked him, 
again and again, about al-Qaida. Here is how it was described:

       The interrogator said, ``Do you know what this is?'' I 
     said, ``Yes, it's a cable,'' and he told me, ``Open your 
     right hand.'' I opened my right hand, and he hit me like 
     crazy. It was so painful, and of course I started crying, and 
     then he told me to open my left hand, and I opened it, and he 
     missed, then hit my wrist. And then he asked me questions. If 
     he does not think you are telling the truth, then he hits 
     again.

  The jail and the torturers were Syrian, but America sent this man 
there with full knowledge of what would happen to him because it was 
part of a longstanding secret program of ``extraordinary rendition.'' 
America was convinced that he was a terrorist and wanted the truth 
beaten out of him.
  No charges were ever filed against him. His adopted nation's 
government--Canada, one of our strongest NATO allies--cleared him of 
all wrongdoing after a yearlong investigation and awarded him more than 
$10 million in government compensation for his immense pain and 
suffering--but not before he was tortured for 10 months in a cell the 
size of a grave. Our own Government, I note, has refused to even 
acknowledge that his case exists.
  It is about a German citizen living in the city of Ulm with his wife 
and four children. On a bus trip through Eastern Europe, he was pulled 
off at a border crossing by armed guards and held for 3 weeks in a 
hotel room where he was beaten regularly. At the end of 3 weeks, he was 
drugged and shipped on a cargo plane to Kabul, Afghanistan.
  For 5 months he was held in the Salt Pit, a secret American prison 
staffed by Afghan guards. All he had to drink was stagnant water from a 
filthy bottle. Again and again, masked men interrogated him about al-
Qaida. And finally, he says, they raped him.
  He was released in May of 2004. Scientific testing confirmed his 
story of malnourishment, and the Chancellor of Germany publicly 
acknowledged that he was wrongfully held. What was his crime? Having 
the same name as a suspected terrorist. Again, our own Government has 
refused to even acknowledge this case exists.
  There are not enough words in the world to cover the facts. If you 
would like to define torture out of existence, be my guest. If you 
would rather use a Washington euphemism--``tough questioning,'' 
``enhanced interrogation''--feel free. Feel free to talk about 
``fraternity hazing'' such as Rush Limbaugh did, or to use a favorite 
term of Vice President Cheney, ``a dunk in the water,'' as he described 
waterboarding. Call it whatever you like. And when you are through with 
all of your evasions, the facts will still be waiting for you--the fact 
of waterboarding, ``controlled death,'' the fact of ``outsourced 
torture,'' the fact of secret prisons, the fact of month-long sleep 
deprivation, the fact of the

[[Page 1880]]

President's personal power to hold whomever he likes for as long as he 
would like.
  Have I gone wildly off the topic? Have I brought up a dozen unrelated 
issues? I don't think, Mr. President--I don't think I have at all.
  We are deceiving our ourselves when we talk about the U.S. attorneys 
issue, the habeas issue, the torture issue, the rendition issue, the 
secrecy issue. As if each one were an isolated case! As if each one 
were an accident! When we speak of them as isolated, we are keeping our 
politics cripplingly small, and as long as we keep them small, the rule 
of men is winning. There is only one issue here--only one. It is the 
law issue, the rule of law. Does the President serve the law or does 
the law serve the President?
  Each insult to our Constitution comes from the same source. Each 
springs from the same mindset. And if we attack this contempt for the 
law at any point, we will wound it at all points.
  That is why I am here this evening. Retroactive immunity is on the 
table today, but also at issue is the entire ideology that justifies 
it, the same ideology behind torture and executive lawlessness. 
Immunity is a disgrace in itself, but it is far worse in what it 
represents. It tells us that some believe in the courts only so long as 
the verdict goes their way. It puts secrecy above sunshine and fiat 
above the law.
  Did the telecoms break the law? That I don't know. Pass immunity and, 
of course, we will never know. A handful of favored corporations will 
remain 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.
  ``Law'' is a word that we barely hear from the supporters of 
immunity. They offer neither a deliberation about America's difficult 
choices in an age of terrorism nor a shared attempt to set for our 
times the excruciating balance between security and liberty. They 
merely promise a false debate on a false choice: security or liberty, 
but never both.
  I think differently, and I hope others do as well. I think that 
America's founding truth is unambiguous: Security and liberty, one and 
inseparable, and never one without the other.
  Secure in that truth, I offer a challenge to immunity supporters. You 
want to put a handful of corporations above the law. Could you please 
explain how your immunity makes any one of us any safer at all?
  The truth is that a working balance between security and liberty has 
already been struck. In fact, it has been settled for decades. For 
three decades, in fact, FISA, the Foreign Intelligence Surveillance 
Act, has prevented executive lawbreaking and protected Americans, and 
that balance stands today.
  In the wake of the Watergate scandal, the Senate convened the Church 
Committee, a panel of distinguished members determined to investigate 
executive abuses of power. Unsurprisingly, they found that when 
Congress and the courts substitute ``trust me'' for real oversight, 
massive lawbreaking can result.
  They found evidence of U.S. Army spying on the civilian population, 
Federal dossiers on citizens' political activities, a CIA and FBI 
program that had opened hundreds of thousands of Americans' letters 
without warning or warrant. In sum, Americans had sustained a severe 
blow to their fourth amendment rights ``to be secure in their persons, 
houses, papers, and effects, against unreasonable searches and 
seizures. . . .''
  But at the same time, the Senators of the Church Committee understood 
that surveillance needed to go forward to protect the American people. 
Surveillance itself was not the problem. Unchecked, unregulated, 
unwarranted surveillance was. What surveillance needed, in a word, was 
legitimacy. And in America, as the Founders understood, power becomes 
legitimate when it is shared, when Congress and the courts check that 
attitude which so often crops up in the executive branch--``if the 
President does it, it's not illegal.''
  The Church Committee's final report, ``Intelligence Activities and 
the Rights of Americans,'' put the case powerfully indeed. Allow me to 
quote from that final report:

       The critical question before the Committee was to determine 
     how the fundamental liberties of the people can be maintained 
     in the course of the Government's effort to protect their 
     security.
       The delicate balance between these basic goals of our 
     system of government is often difficult to strike, but it 
     can, and must, be achieved.
       We reject the view that the traditional American principles 
     of justice and fair play have no place in our struggle 
     against the enemies of freedom. Moreover, our investigation 
     has established that the targets of intelligence activity 
     have ranged far beyond persons who could properly be 
     characterized as enemies of freedom. . . .
       We have seen segments of our Government, in their attitudes 
     and action, adopt tactics unworthy of a democracy, and 
     occasionally reminiscent of the tactics of totalitarian 
     regimes.
       We have seen a consistent pattern in which programs 
     initiated with limited goals, such as preventing criminal 
     violence or identifying foreign spies, were expanded to what 
     witnesses characterized as ``vacuum cleaners,'' sweeping in 
     information about lawful activities of American citizens.

  The Senators concluded:

       Unless new and tighter controls are established by 
     legislation, domestic intelligence activities threaten to 
     undermine our democratic society and fundamentally alter its 
     nature.

  What a strange echo, what an incredibly strange echo, we hear in 
those words. The words I just read could have been written yesterday. 
Three decades ago our predecessors in this Chamber understood that when 
domestic spying goes too far, it threatens to kill just what it 
promises to protect: an America secure in its liberty. That lesson was 
crystal clear more than 30 years ago. Why is it so cloudy tonight? Why 
is it so cloudy on the eve of an important vote?
  And before we entertain the argument that ``everything has changed'' 
since those words were written, remember: The men who wrote them had 
witnessed World War and Cold War. They had seen the Nazi and Soviet 
threats and were living every day under the cloud of a nuclear 
holocaust.
  Mr. President, I ask this: Who will chair the commission 
investigating the secrets of warrantless spying years from today? Will 
it be a young Senator sitting in this body today? Will it be someone 
not yet elected? What will that Senator say when he or she comes to our 
actions, reads in the records of 2008 how we let outrage after outrage 
after outrage slide with nothing more than a promise to stop the next 
one? I imagine that Senator will ask of us: Why didn't they do 
anything? Why didn't they fight back? Why didn't they stand up? Why 
didn't they vote down retroactive immunity? What were they thinking? 
What more do you need to know? How many instances of abuse do you have 
to learn about? When do you stop? When do you say enough is enough? In 
February of 2008, when no one could doubt any more what the 
administration was doing, why did they sit on their hands? Why did they 
sit on their hands? Why did they pass by as if nothing had ever 
happened and grant retroactive immunity?
  Since the time of the Church Commission the threats facing our Nation 
have multiplied and grown in complexity, but the lesson has been 
immutable: Warrantless spying threatens to undermine our democratic 
society, unless legislation brings it under control. In other words, 
the power to invade privacy must be used sparingly, guarded jealously, 
and shared equally between the branches of Government.
  Or the case can be made pragmatically, as my friend Harold Koh, dean 
of Yale Law School, recently argued:

       The engagement of the three branches tends to yield not 
     just more thoughtful law, but a more broadly supported public 
     policy.

  Three decades ago, Congress embodied that solution in the Foreign 
Intelligence Surveillance Act, or FISA. FISA confirmed the President's 
power to conduct surveillance of international conversations involving 
anyone in the United States, provided--provided--that the Federal FISA 
Court issued a warrant ensuring that wiretapping was aimed at 
safeguarding our security and nothing else.
  The President's own Director of National Intelligence, Mike 
McConnell,

[[Page 1881]]

explained the rationale in an interview this summer. The United States, 
he said:

     . . . did not want to allow the intelligence community to 
     conduct electronic surveillance of Americans for foreign 
     intelligence unless you had a warrant, so that was required.

  As originally written in 1978, and as amended many times since, FISA 
has accomplished its mission. It has been a valuable tool for 
conducting surveillance of terrorists and those who would harm our 
beloved Nation. And every time Presidents have come to Congress openly 
to ask for more leeway under FISA, Congress has worked with them. 
Congress has negotiated it together. Congress and Presidents have 
struck a balance that safeguards America while doing its utmost to 
protect Americans' privacy.
  This summer, Congress made a technical correction to FISA, enabling 
the President to wiretap without a warrant conversations between two 
foreign targets, even if those conversations are routed through 
American corporate computers. For other reasons, I felt this summer's 
legislation went too far, and I opposed it, but the point is Congress 
once again proved its willingness to work with the President on foreign 
intelligence surveillance.
  Isn't that enough?
  This past October and November, as we have seen, the Senate 
Intelligence and Judiciary Committees worked with the President to 
further refine FISA and ensure, in a true emergency, the FISA Court 
would do nothing to slow down intelligence gathering.
  Isn't that enough?
  As for the FISA court? Between 1978 and 2004, according to the 
Washington Post, the FISA Court approved 18,748 warrants and rejected 
5. Let me repeat that. The FISA Court, according to the Washington 
Post, approved 18,748 warrants and rejected 5. The FISA Court has sided 
with the executive branch 99.9 percent of the time.
  Isn't that enough?
  Is anything lacking? Have we forgotten something? Isn't all this 
enough to keep us safe?
  We all know the answer we received. This complex, fine-tuned 
machinery, crafted over three decades by 3 branches of Government, 4 
Presidents, and 12 Congresses was ignored. It was a system primed to 
bless nearly any eavesdropping a President could conceive, and spying 
still happened illegally.
  If the shock of that decision has yet to sink in, think of it this 
way: President Bush ignored not just a Federal court but a secret 
Federal court. Not just a secret Federal court but a secret Federal 
court prepared to sign off on his actions 99.9 percent of the time. A 
more compliant court has never been conceived. Still, that wasn't good 
enough.
  So I will ask the Senate candidly, and candidly it already knows the 
answer: Is this about security or about power? Why are some fighting so 
hard for retroactive immunity? The answer, I believe, is immunity means 
secrecy, and secrecy means power.
  It is no coincidence to me that the man who proclaimed ``If the 
President does it, it is not illegal''--Richard Nixon--was the same man 
who raised executive secrecy to an art form. The Senators of the Church 
Committee expressed succinctly the deep flaw in the Nixonian executive: 
``Abuse thrives on secrecy.'' And in the exhaustive catalogue of their 
report, they proved it.
  In this push for immunity, secrecy is at its center. We find proof in 
immunity's original version: a proposal to protect not just telecoms 
but everyone involved in the wiretapping program. In their original 
proposal, that is what they wanted, to immunize themselves and 
absolutely everyone involved in this program. Not just the companies 
but everyone from the executive branch on down. They wanted to immunize 
every single human being.
  Think about it. It speaks to their fear and perhaps their guilt--
their guilt that they had broken the law and their fear in the years to 
come they would be found liable or convicted. They knew better than 
anyone else what they had done, and they must have had good reason to 
be afraid. Thankfully, immunity for the President is not part of the 
bill before us, and on previous occasions I have commended Senator 
Rockefeller and Senator Bond and the committee members for not agreeing 
to the administration's request for granting immunity for every single 
person. But remember, they made the request. That is what they wanted. 
While it is not in the bill, it ought to be instructive. If anybody 
wonders what this is all about, when you go back and remember that this 
administration requested of this committee that every single human 
being involved in the surveillance program be immunized and protected 
by the act of Congress, that is instructive. That is enlightening as to 
what the true intent of this administration has been when it comes to 
this program.
  As I said: Thankfully, immunity for the executive branch is not part 
of the bill before us, but the original proposal tells us something 
very important. This is, and always has been, a self-preservation bill. 
Otherwise, why not have a trial and get it over with? If the proponents 
of retroactive immunity are right, the corporations would win in a 
walk. After all, in the official telling, the telecom industry was 
ordered to help the President spy without a warrant and they 
patriotically complied. We have even heard on this floor the comparison 
between the telecom corporations to the men and women laying their 
lives on the line in Iraq.
  But ignore that. Ignore for a moment the fact that in America we obey 
the laws, not the President's orders. Ignore that not even the 
President has the right to secure a bully into breaking the law. Ignore 
that the telecoms were not unanimous; one, Qwest, wanted to see the 
legal basis for the order, never received it, and so refused to comply. 
Ignore that a judge presiding over the case ruled:

       AT&T cannot seriously contend that a reasonable entity in 
     its position could have believed that the alleged domestic 
     dragnet was legal.

  Ignore all of that. If the order the telecoms received was legally 
binding, then they have an easy case to prove. The corporations only 
need to show a judge the authority and the assurances they were given 
and they will be in and out of court in less than 5 minutes.
  If the telecoms are as defensible as the President says, why doesn't 
the President let them defend themselves? If the case is so easy to 
make, why doesn't he let them make it? It can't be that he is afraid of 
leaks. Our Federal court system has dealt for decades with the most 
delicate national security matters, building up expertise and 
protecting classified information behind closed doors--ex parte, in 
camera. We can expect no less in these cases. No intelligence sources 
need be compromised. No state secrets need to be exposed. After 
litigation, at both the district court and circuit court level, no 
state secrets have been exposed.
  In fact, Federal District Court Judge Vaughn Walker, a Republican 
appointee, I might add, has already ruled the issue can go to trial 
without putting state secrets in jeopardy. He reasonably concluded that 
the existence of a terrorist surveillance program is hardly a secret at 
all, and I quote him.

       The government has already disclosed the general contours 
     of the ``terrorist surveillance program,'' which requires the 
     assistance of a telecommunications provider.

  As the state secrets privilege is invoked to stall these high-profile 
cases, it is useful to consider that privilege's history. In fact, it 
was tainted at its birth by a President of my own party, Harry Truman. 
In 1952, President Truman successfully invoked the new privilege to 
prevent public exposure of a report on a plane crash that killed three 
Air Force contractors.
  When the report was finally declassified some 50 years later, decades 
after anyone in the Truman administration was within its reach, it 
contained no secrets at all; only facts about repeated maintenance 
failures that would have seriously embarrassed some important people. 
And so the state secrets privilege began its career not to protect our 
Nation but to protect the powerful.
  In his opinion, Judge Walker argued that, even when it is reasonably 
grounded:

       the state secrets privilege still has its limits. While the 
     court recognizes and respects

[[Page 1882]]

     the executive's constitutional duty to protect the Nation 
     from threats, the court also takes seriously its 
     constitutional duty to adjudicate the disputes that come 
     before it. To defer to a blanket assertion of secrecy here 
     would be to abdicate that duty, particularly because the very 
     subject matter of this litigation has been so publicly aired. 
     The compromise between liberty and security remains a 
     difficult one. But dismissing this case at the outset would 
     sacrifice liberty for no apparent enhancement of security.

  And that ought to be the epitaph for the last 6 years--sacrificing 
liberty for no apparent enhancement of security. Worse than selling our 
soul, we are giving it away for free.
  It is equally wrong to claim that failing to grant this retroactive 
immunity will make the telecoms less likely to cooperate with 
surveillance in the future. The truth is, that since the 1970s, the 
Foreign Intelligence Surveillance Act has compelled telecommunications 
companies to cooperate with surveillance, when it is warranted. What is 
more, it immunizes them. It has done that for 25 years.
  So cooperation in warranted wiretapping is not at stake today. 
Collusion in warrantless wiretapping is. The warrant makes all the 
difference in the world because it is precisely the court's blessing 
that brings Presidential power under the rule of law.
  In sum, we know that giving the telecoms their day in court, giving 
the American people their day in court, would not jeopardize an ounce 
of our security. And it could only expose one secret: The extent to 
which the rule of law has been trampled upon. That is the choice at 
stake this evening and tomorrow when we vote on this matter: Will the 
secrets of the last years remain closed in the dark or will they be 
open to the generations to come, to our successors in this Chamber, so 
they can prepare themselves to defend against future outrages of power 
and usurpations of law from future Presidents, of either party, as 
certainly they will come? As certainly they will come.
  Thirty years after the Church Committee, history repeated itself. 
Even though I probably thought in those days, this will never happen 
again. Well, here we are again. As certain as I am standing here this 
evening, at some future time, there will be an executive, a President, 
who will seek to compromise the very same principles. And just as we 
reached back 30 years ago during this debate to a hallowed time when 
another Senate, faced with similar challenges, reached entirely 
different conclusions than we are about to make, some future generation 
will reach back to ours and ask: What did they say? What did they do? 
How did they feel about this? What actions did they take?
  The idea that this body would grant retroactive immunity in the face 
of these challenges and deny the courts an opportunity to determine 
whether, at the mere request of a President, major companies, for years 
on end, can sweep up, vacuum up--to use the Church Committee's 
language--every telephone conversation, every fax, every e-mail of 
millions and millions of Americans, is a precedent I don't think we 
want as part of our heritage for coming generations.
  And believe me, they will look back to it. If those who come after us 
are to prevent it from occurring again, they need the full truth.
  Constitutional lawyer and author Glenn Greenwald expressed the high 
stakes this way:

       The Bush administration will be gone in 11 months. But--in 
     the absence of some meaningful accountability--all of this 
     will remain . . . If . . . these theories remain undisturbed 
     and unchallenged, and . . . all of these crimes go 
     uninvestigated and unpunished, that will have a profound 
     impact on changing our national character, in further 
     transforming the type of country we are.

  That is why we must not see these secrets go quietly into the good 
night. I am here this evening because the truth is no one's private 
property. It belongs to every one of us, and it demands to be heard.
  ``State secrets,'' ``patriotic duty'': Those, as weak as they are, 
are the arguments the telecoms' advocates use when they are feeling 
high-minded. When their thoughts turn baser, they make their arguments 
as amateur economists.
  Here is how Director of National Intelligence Mike McConnell put it.

       If you play out the suits at the value they're claimed, it 
     would bankrupt these companies. So . . . we have to provide 
     liability protection to these private sector entities.

  That is an incredible statement. It is amazing that a person in high 
Government would suggest that no matter how warranted this 
investigation may be, there is a higher calling, that we should not put 
these companies in any kind of financial jeopardy, that we have to 
provide liability protection to these private sector entities because 
it might bankrupt them.
  To begin with, it is a clear exaggeration. First and foremost, we are 
talking about some of the most successful companies in the United 
States, not only today but ever. Some of these companies have continued 
to earn record profits and sign up record numbers of subscribers at the 
same time as this very public litigation, totally undermining the 
argument, I might add, these lawsuits are doing the telecoms severe 
reputational damage.
  Remember, the discussion about these telecoms has now gone on for 
months. And yet in the public debate about whether the courts ought to 
be able to examine these issues, there are reports that these companies 
have been accumulating record profits. Companies that size could not be 
completely wiped out by anything but the most exorbitant and unlikely 
judgment. To assume that the telecoms would lose and that the judges 
would hand them down such back-breaking penalties is already to take 
several leaps.
  The point, after all, has never been to finally cripple our 
telecommunications industry. That is not the point here at all. In 
fact, some have said: Look, I will support you striking this immunity, 
provided you put a cap on damages these companies would suffer if in 
fact the plaintiffs prove to be correct. And I am more than happy to 
entertain that. I do not believe it is necessary, but if that is the 
argument, a damages cap would answer all of Mike McConnell's concerns, 
without even having to bring up immunity. I am prepared to agree to any 
kind of a cap you want--because the point to me is not the damages they 
pay, but the damage they have done.
  But to suggest somehow that there is a pricetag companies would have 
to pay which is more valuable than protecting people's privacy is a 
stunning, breathtaking comment from a high Government official, in my 
view. It is extremely troubling that our Director of National 
Intelligence even bothers to pronounce on ``liability protection for 
private sector entities.'' How did that even begin to be relevant to 
letting this case go forward? Since when do we throw entire lawsuits 
out because the defendant stood to lose too much? In plain English, 
here is what Admiral McConnell is arguing: Some corporations are too 
rich to be sued. Even bringing money into the equation puts wealth 
above justice, above due process. Rarely in public life in the years I 
have served here have I ever heard an argument as venal as that on a 
matter as serious as this one. It astounds me that some can speak in 
the same breath about national security and the bottom line. Approve 
immunity and Congress will state clearly: The richer you are, the more 
successful you are, the more lawless you are entitled to be. A suit 
against you is a danger to the Republic! And so, at the rock bottom of 
its justifications, the telecoms' advocates are essentially arguing 
that immunity can be bought.
  The truth is exactly, of course, the opposite. The larger the 
corporation, frankly, the greater the potential for abuse. Not that 
success should make a company suspect at all; companies grow large, and 
essential to our economy because they are excellent at what they do. I 
simply mean that size and wealth open the realm of possibilities for 
abuse far beyond the scope of the individual.
  After all, if everything alleged is true, we are talking about one of 
the most massive violations of privacy in American history. If 
reasonable search and seizure means opening a drug dealer's apartment, 
the telecoms' alleged actions would be the equivalent of

[[Page 1883]]

strip-searching everyone in the building, ransacking their bedrooms, 
prying up all the floorboards. The scale of these cooperations opens 
unprecedented possibilities for abuse, possibilities far beyond the 
power of any one individual.
  If the allegation against the telecoms is true, it constitutes one of 
the most massive violations of privacy in American history. And it 
would be inconceivable without the size and resources of a corporate 
behemoth, the same size that makes Mike McConnell fear the 
corporations' day in court. That is the massive scale we are talking 
about, and that massive scale is precisely why no corporation must be 
above the law.
  On that scale, it is impossible to plead ignorance. As Judge Walker 
ruled:

       AT&T cannot seriously contend that a reasonable entity in 
     its position could have believed that the alleged domestic 
     dragnet was legal.

  Again, from a Republican appointee to the Federal bench. But the 
arguments of the President's allies sink even lower. Listen to the 
words of a House Republican leader spoken on Fox News. Candidly, they 
are shameful.

       I believe that [the telecoms] deserve immunity from 
     lawsuits out there from typical trial lawyers trying to find 
     a way to get into the pockets of American companies.

  Of course, some of the ``typical greedy trial lawyers'' bringing 
these suits work for a nonprofit. And the telecoms that some want to 
portray as pitiful little Davids actually employ hundreds of attorneys, 
retain the best corporate law firms, and spend multimillion dollar 
legal budgets.
  But if the facts actually matter to immunity supporters, we would not 
be here. For some, the prewritten narrative takes precedence far above 
the mere facts; and here, it is the perennial narrative of the greedy 
trial lawyers.
  With that, some can rest content. They conclude that we were never 
serious about the law, or about privacy, or about checks and balances; 
it was about the money all along.
  But we will not let them rest content. We are extremely serious. 
There can no longer be any doubt: One by one the arguments of the 
immunity supporters, of the telecoms' advocates, fail.
  I wish to spend a few minutes and detail these claims and their 
failures, if I may. The first argument from immunity supporters says:

       The President has the authority to decide whether or not 
     telecoms should be granted immunity.

  That is the first argument. The President has that implicit 
authority. But the facts in this case belong in the courts. The 
judiciary should be allowed to determine whether the President has 
exceeded his powers by obtaining from the telecoms wholesale access to 
the domestic communications of millions of ordinary Americans.
  Whatever the arguments may be, let us assume for a second they are 
going to make this argument. Well, you can make an argument. Where is 
the place you make that argument? Here in the legislative body or in 
the courts? I think the simple answer is, if you have been to law 
school for a week, the courts.
  We are a government of three parts, coequal: executive, legislative, 
and judicial. The executive branch says: I have the right to do this. 
The Congress can debate and certainly discuss it. But only in the 
courts can we determine the constitutionality of that action.
  Neither this body nor the other that comprise the legislative branch 
are charged with the responsibility of determining constitutionality. 
When Congress passes a law, the courts decide whether it is 
constitutional. When the President acts, the courts decide whether it 
is constitutional. The executive branch does not decide whether we have 
acted constitutionally, and we do not decide whether the President has 
acted constitutionally. That is what the courts are for. This is basic 
101 stuff. This is basic stuff. You go to the courts to determine this 
question. And yet if we pass retroactive immunity--gone.
  That is a great precedent. That is what future Congresses will look 
to, when deciding when some future President overreaches: What did the 
previous Congresses do? And you will hear the argument in this Chamber 
years hence: Well, back in 2008, when confronted with that question, 
the Senate said that, frankly, the courts had no business with that, in 
effect, sanctioning what had occurred.
  How else can you read this but as a sanction? If a majority of 
Senators here decides that retroactive immunity is warranted, what 
other conclusion can history draw from that, except we agreed with the 
President that he had the right to do what he did, and we will never 
know the legal answer to the question. We will deprive the courts of 
the opportunity to decide it.
  We are overstepping our bounds incredibly by doing this, and hence 
the reason for the first time in my more than a quarter century in this 
body I am engaging in extended debate, because this is that important.
  To allow a President, any President of any party, to mandate or 
require a public or private entity to invade the privacy of Americans 
to the extent that has occurred here, one of the most massive alleged 
violations of privacy in history, and not challenge it and have the 
courts determine the legality or illegality of it, is an incredible 
precedent of historic proportions. It is not a small vote tomorrow. It 
is not a minor issue. It is about as important and as basic and as 
fundamental as anything we can ever do.
  Remember that the administration's original immunity proposal 
protected everyone. That is what they wanted. And executive immunity is 
not in this bill only because Jay Rockefeller and Kit Bond and the 
other members of the committee said No. But do not forget that is what 
they wanted. The administration came to the committee, and said: We 
want you to grant immunity to everyone--the executive branch, the 
telecoms, Justice Department, anyone else involved.
  The committee turned them down. But they asked for it. They asked for 
it. And that has to be a part of this debate and discussion. It is not 
irrelevant. It is not insignificant that the President of the United 
States asked the Intelligence Committee of the Senate to grant them and 
everyone else involved in this issue total immunity. What more do you 
need to know about what the motives are? How much more do you need to 
find out? The origin of immunity tells us a great deal about what is at 
stake here. It is self-preservation.
  I have my own opinions about warrantless surveillance, about what 
went on. But my opinions should not bear the weight of law. I think 
what these companies did was wrong. But I would be a fool to stand 
before you this evening and say I have the right to make that 
determination. But they should have not the right, either, to decide if 
it was legal. And that is what we are doing, in effect, by granting 
retroactive immunity.
  The second argument is that only foreign communications are targeted.
  Immunity supporters claim that only foreign communications were 
targeted, not Americans' domestic calls. But the fact is that clear 
firsthand evidence authenticated by these corporations in court 
contradicts that claim. ``Splitters'' at AT&T's Internet hub in San 
Francisco diverted into a secret room controlled by the NSA every e-
mail, every text message, every phone call, foreign or domestic, 
carried over the massive fiber optic lines of 16 separate companies for 
over 5 years.
  Third, the Senate Intelligence Committee has preserved the role of 
the judiciary so there is ample oversight. But the fact is, the role 
would be empty. The Intelligence version of the bill before us would 
require the cases to be dismissed at a word from the Attorney General. 
The central legal questions raised by these cases would never be heard. 
The cases would never be fully closed. We would never really truly know 
what happened in these matters. So from a mere word of the Attorney 
General, that is the end of it.
  The fourth argument we have been hearing over the last number of 
months: A lack of immunity would compromise future cooperation between 
the U.S. Government and the telecom industry. But remember: Since the 
1970s the Foreign Intelligence Surveillance Act has compelled telecoms

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to cooperate with warranted surveillance, and it has immunized them 
entirely. They don't have a choice, in effect. If you are compelled by 
a warrant to turn over the evidence, you don't have the choice of 
cooperating or not. The idea that the companies will say: We are just 
not going to share that information with you--you don't have that 
luxury. When a court order comes and says: Turn over the evidence, you 
have to turn it over. But, of course, the companies say: We don't want 
to because we will end up with a lot of lawsuits. To handle that very 
legitimate issue raised initially by AT&T, which was part of drafting 
FISA in 1978, we said: Don't worry about that. We will immunize you so 
there won't be any lawsuits that can be brought against you for doing 
what you are compelled to do by court order and a warrant.
  So the argument that somehow we won't be cooperative with you is just 
on its face factually wrong. You don't have the choice not to 
cooperate. What we do grant to you with that warrant is the fact that 
you cannot be sued, which is a legitimate request to make.
  That is not, of course, what happened here. The decision was made to 
turn over the evidence without a warrant, without a court order.
  I pointed out before that according to the Washington Post, since 
1978 there have been over 18,700 court orders requested of the FISA 
Court, and only 5 have been rejected in 30 years; 18,700-plus cases 
before the court, that secret, private Federal court, and in 99.9 
percent of the cases, they have been approved. Only five have been 
rejected. But when you are receiving a court order, when the warrant 
arrives and you are complying with it, as you are required, you also 
receive immunity from legal prosecution or from lawsuits. So the 
argument somehow that these companies won't be as cooperative, if it 
weren't so sad, would almost be amusing.
  This was a pay deal, by the way. It wasn't just patriotic duty. There 
was a cost involved. We were writing checks to the telecommunications 
industry. For whatever reason, when the Government stopped paying the 
checks to the telecom industry, these great patriotic institutions 
decided to stop the surveillance. Were they under a court order, had 
there been a warrant insisting upon their compliance, they wouldn't 
have the luxury of deciding not to comply. Only under this fact 
situation we are debating this evening would these corporations have 
any ability to all of a sudden stop complying with the law or complying 
with the request. So the irony of the argument is that the reverse is 
actually true. If you don't have a warrant and a court order, it is 
less likely you are apt to get that continual cooperation from these 
very companies that can provide the information we need to keep us more 
secure.
  The fifth argument immunity supporters make is that telecoms can't 
defend themselves because of the state secrets provision. I made this 
case a while ago, but let me repeat it. The fact is that Federal 
district court Judge Vaughn Walker has already ruled that the issue can 
go to trial without putting state secrets in jeopardy. Judge Walker 
pointed out that the existence of the warrantless surveillance program 
is hardly a secret at all.
  I will quote him again. He said:

       The Government has [already] disclosed the general contours 
     of the ``terrorist surveillance program,'' which requires the 
     assistance of a telecommunications provider.

  So the argument that they can't defend themselves without exposing 
state secrets has already been debunked.
  The sixth argument that is made by those who support immunity is that 
defendants are already shielded by common law principles. This is an 
interesting one. Immunity supporters claim that telecoms are protected 
by common law principles, but the fact is that common law immunities do 
not trump specific legal duties imposed by statute such as the specific 
duties Congress has long imposed on telecoms to protect customer 
privacy and records.
  In the pending case against AT&T, the judge already has ruled 
unequivocally that ``AT&T cannot seriously contend that a reasonable 
entity in its position could have believed that the alleged domestic 
dragnet was legal.'' Even so, the communications company defendants can 
and should have the opportunity to present these defenses to the courts 
and the courts--not the Congress preemptively--should decide whether 
they are sufficient.
  The seventh argument that is being made by the supporters of immunity 
is that information leaks may compromise state secrets and national 
security. I have heard this argument over and over and over again. The 
fact is, our Federal court system, in decade after decade of dealing 
with delicate national security matters, has built up the expertise it 
takes to secure that information behind closed doors. If we are still 
concerned about national security being threatened as a result of these 
cases, we can simply get the principals a security clearance.
  We can be increasingly confident that these cases will not expose 
state secrets or intelligence sources, because after the extensive 
litigation that has already taken place at both the district court and 
circuit court level, no sensitive information has been leaked.
  This is a red herring issue. It is one that they are going to fall 
back on over and over again. But it is no secret about what has been 
going on. It has been widely reported. The only thing we are talking 
about is methods and means. Yet, over the decades, our Federal courts, 
in very sensitive matters, have protected that information. So this is 
a phony argument and ought not to carry the day.
  The eighth argument from those who support immunity: A lack of 
immunity will harm the telecom companies. This is not unlike Admiral 
McConnell's argument about finances. There will be reputational damage 
to the telecom industry. The fact is, there is no evidence that this 
litigation has reduced or will reduce the defendant companies' bottom 
lines or customer base. These companies can only be harmed if they have 
done something wrong. If they have not, they have nothing to worry 
about. But the suggestion somehow that we should not go forward because 
your reputation may be damaged is an insulting argument. It is 
offensive to suggest that we should harm the people's right to privacy 
because to prevent some reputational damage--they should be embarrassed 
to make that argument. After all, there is nothing to be damaged if you 
have done nothing wrong. If you have done something wrong, then, of 
course, there will be some damage. And why shouldn't there be, if you 
have done wrong? The courts are the ones to properly determine that.
  The ninth argument: The magnitude of liability will bankrupt the 
telecoms. I have addressed this already, but I will briefly respond to 
it as well.
  As we have seen, huge corporations could only be wiped out by most 
enormous penalties and also the most unlikely penalties that could be 
imposed. It would take several leaps to assume that the telecoms would 
lose and that they will be slapped with huge judgments. But on another 
level, immunity supporters are staking their claim on a dangerous 
principle, that a suit can be stopped solely on the basis of how much 
the defendant stands to lose. If we accept that premise, we could 
conceive of a corporation so wealthy, so integral to our economy, that 
its riches place it outside of the law altogether. That is a deeply 
flawed argument.
  We see that none of these arguments for immunity stand. There is 
absolutely no reason to halt the legal process and to bar the 
courthouse door.
  I think it is important at this moment to share with those who may be 
following this discussion, how we got to this point. How did we find 
out about all of this? I said earlier that we would not be here 
debating this this evening had it not been for a whistleblower, had it 
not been for reports in the media about what was going on, that a 5-
year violation of privacy rights would have now turned into a 7- or 8-
year violation, unabated, unstopped--every phone conversation, fax, e-
mail being literally swept up, from millions and millions of people.
  But we got knowledge of this because of a gentleman by the name of 
Mark

[[Page 1885]]

Klein who was a former AT&T telecommunications technician who came 
forward to provide evidence of the company's collaboration with the 
NSA. Mark Klein is a remarkable individual, a person of knowledge and 
ability when it comes to these matters. Let me read from Mark Klein's 
testimony because I think it is important. This is all from him. These 
are not my words. These are words from Mark Klein, a person who worked 
at AT&T for more than 20 years as an employee and a technician who came 
forward to provide this information. Let me read his comments, if I 
may, and put them into this debate.

       For about 5 years, the Bush administration's National 
     Security Agency, with the help of the country's largest 
     telecommunications companies, has been collecting your e-
     mail, accumulating information on your Web browser, and 
     gathering details about your Internet activity, all without 
     warrants and in violation of the U.S. Constitution and 
     several Federal and State laws. Even after the program was 
     exposed by the New York Times in December of 2005, the 
     President and other government officials consistently 
     defended the NSA's activities, insisting that the NSA only 
     collects communications into or from the United States where 
     one party to the communication is someone they believe to be 
     a member of al Qaeda or an associated terrorist organization. 
     But these claims are not true. I know they are not true, 
     because I have firsthand knowledge of the clandestine 
     collaboration between one giant telecommunications company 
     and the NSA to facilitate the most comprehensive spying 
     program in history. I have seen the NSA's vacuum cleaner 
     surveillance infrastructure with my own eyes. It is a vast 
     government-sponsored, warrantless spying program.
       For over 22 years, I worked as a technician for AT&T. While 
     working in San Francisco in 2002, I learned that a management 
     level technician, with AT&T's knowledge, had been cleared by 
     the NSA to work on a special but secret project, the 
     installation and maintenance of Internet equipment in a newly 
     constructed secure room in AT&T's central office in San 
     Francisco. Other than the NSA-cleared technician, no 
     employees were allowed in that room.
       In October of 2003, I was transferred to that office and 
     was in particular assigned to oversee AT&T operations. As 
     part of my duties, I was required to connect circuits 
     carrying data to optical splitters which made a copy of the 
     light signal. But the splitters weakened the light signal 
     causing problems I had to troubleshoot. After examining 
     engineering documents given to the technicians which showed 
     the connections to the splitters, I discovered that there 
     they were hard wired to the secret room. In short, an exact 
     copy of all traffic that flowed through critical AT&T 
     cables--e-mails, documents, pictures, Web browsing, voiceover 
     Internet phone conversations--everything was being diverted 
     to equipment inside the secret room. In addition, the 
     documents revealed the technological gear used in their 
     secret project, including a highly sophisticated search 
     component capable of quickly sifting through huge amounts of 
     digital data, including text, voice, and images in real-time, 
     according to preprogrammed criteria. It is important to 
     understand that the Internet links which were connected to 
     the splitter contained not just foreign communications, but 
     vast amounts of domestic trafficking all mixed together.
       Furthermore, the splitter has no selective abilities. It is 
     just a dumb device which copies everything to the secret 
     room. And the links going through the splitter are AT&T's 
     physical connections to many other Internet providers; e.g., 
     Sprint, Qwest, Global Crossing Cable and Wireless, and the 
     critical west coast exchange point known as Mae West. Since 
     these networks are interconnected, the government's 
     surveillance affects not only AT&T customers, but everyone 
     else--millions of Americans.

  I repeat again, I am reading the testimony of Mark Klein who was the 
whistleblower who revealed this 5-year-long warrantless surveillance 
program. Mark Klein goes on:

       I also discovered in my conversations with other 
     technicians that other secret rooms were established in 
     Seattle, San Jose, Los Angeles and San Diego. One of the 
     documents I obtained also mentioned Atlanta, and the clear 
     inference and the logic of this setup and the language of the 
     documents is that there are other such rooms across the 
     country to complete the coverage--possibly 15 to 20 more. So 
     when reports of the government's extensive wiretapping 
     program surfaced in December of 2005, after I had left AT&T, 
     I realized two things. First, that I had been a witness to a 
     massive spying effort that violated the rights of millions of 
     Americans; and second, that the government was not telling 
     the public the truth about the extent of their 
     unconstitutional invasion of privacy.
       In the spring of 2006, I became a witness for the 
     Electronic Frontier Foundation's lawsuit against AT&T. The 
     New York Times on April 13 of 2006 reported that four 
     independent technical experts who examined the AT&T documents 
     all said that the documents showed that AT&T had an agreement 
     with the Federal Government to systematically gather 
     information flowing on the Internet.

  That is the testimony of Mark Klein.
  I think it is important as well to share with my colleagues the 
testimony of Brian Ried, currently the Director of Engineering and 
Technical Operations at Internet Systems Consortium, a nonprofit 
organization devoted to supporting a nonproprietary Internet. This is a 
person of extensive knowledge. I am going to read his testimony about 
the technical arrangements. This is clearly above my pay grade to 
understand all of this with this gray head of hair I have, but to those 
who are listening or watching any of this, this will explain how this 
actually worked. So I am going to read this as if I actually know what 
I am talking about. So let me read exactly the words of Brian Ried, the 
statement of telecommunications expert Brian Ried, an AT&T 
whistleblower, about Mark Klein's revelations.

       I am a telecommunications and data networking expert.

  That is again Brian Ried speaking here who has been involved in the 
development of several critical Internet technologies.

       I was a professor of electrical engineering at Stanford 
     University and of computer sciences at Carnegie Melon 
     University West. I have carefully reviewed the AT&T 
     authenticated documents and declaration provided by Mark 
     Klein and the public redacted version of the expert 
     declaration of Jay Scott Marcus, both filed in the Hepting v. 
     AT&T litigation. Combining the information contained in those 
     declarations and documents with my extensive knowledge of the 
     international telecommunications infrastructure and the 
     technology regularly used for lawful surveillance pursuant to 
     warrants and court orders, I believe Mr. Klein's evidence is 
     strongly supportive of widespread, untargeted surveillance of 
     ordinary people, both AT&T customers and others.
       The AT&T documents describe a technological setup of the 
     AT&T facility in San Francisco. This setup is particularly 
     well suited to wholesale dragnet surveillance of all 
     communications passing through the facility, whether 
     international or domestic. These documents describe how the 
     fiberoptic cables were cut and splitters installed at the cut 
     point. Fiberoptic splitters work just like ordinary TV 
     splitters. One cable feeds in and two cables feed out. Both 
     cables carry a copy of absolutely everything that is sent, 
     and if the second cable is connected to a monitoring station, 
     that station sees all traffic going over the cable.
       Mr. Klein stated that the second cable was routed into a 
     room at the facility which access was restricted to AT&T 
     employees having clearances from the National Security 
     Agency. The documents indicate that similar facilities were 
     being installed in Seattle, San Jose, Los Angeles, and San 
     Diego. The documents also reference a somewhat similar 
     facility in Atlanta. This infrastructure is capable of 
     monitoring all traffic passing through the AT&T facility, 
     some of it not even from AT&T customers, whether voice or 
     data or fax, international, or domestic. The most likely use 
     of this infrastructure is wholesale, untargeted surveillance 
     of ordinary Americans at the behest of the NSA. NSA 
     involvement undermines arguments that the facility is 
     intended for use by AT&T in protecting its own network 
     operations.
       This infrastructure is not limited to, nor would it be 
     especially efficient for targeted surveillance or even an 
     untargeted surveillance aimed at communications where one of 
     the ends is located outside of the United States. It is also 
     not reasonably aimed at supporting AT&T operations and 
     security procedures. There are 3 main reasons. The 
     technological infrastructure is far more powerful and 
     expansive than that needed to do targeted surveillance or 
     surveillance aimed at only international or one end foreign 
     communications. For example, it includes a Narus 6400, a 
     computer that can simultaneously analyze huge amounts of 
     information based on rules provided by the machine operator, 
     analyze the content of messages and other information--not 
     just headers or routing information--conduct the analysis in 
     real-time rather than after a delay, correlate information 
     from multiple sources, multiple formats, over many protocols 
     and through different periods of time in that analysis.
       The documents describe a secret private backbone network 
     separate from the public network where normal AT&T customer 
     traffic is carried and transmitted. A separate backbone 
     network would not be required for transmission of the smaller 
     amounts of data captured by a targeted surveillance. You 
     don't need that magnitude of transport capacity if you are 
     doing targeted surveillance.
       The San Francisco facility is not located near an entry-
     exit point for international communications that happened to 
     be transmitted through the United States either through under 
     sea cable or via satellite. As a

[[Page 1886]]

     result, it would not be a sensible place to locate aimed at 
     simply monitoring traffic to or from foreign countries.

  I apologize for reading these technical documents, but I think they 
shed some light. We are talking about very knowledgeable, expert people 
describing technically what was done, the magnitude of it, the capacity 
of it, the effort that was made, obviously, to see to it, as Mr. Klein 
calls it, a dumb machine that would not discriminate between 
information that might only be used to protect us from al-Qaida, and 
wholesale invasion of privacy.
  But putting aside all that--had they sought a warrant and a court 
order, as they should have done, then arguably AT&T and others involved 
would be protected today and be immunized against lawsuits, if it had 
been done under the FISA legislation. The fact that the administration 
decided to totally disregard 30 years of legislation, of working courts 
that have provided, in over 18,700 examples, approval of such requests, 
rejecting only 5, shows an arrogance that shouldn't be ignored.
  So again, tomorrow when the votes occur on cloture and the votes 
occur on these amendments, we will may sanctioning this activity--
setting the unprecedented precedent of a Congress actually providing 
immunity from the courts even examining whether warrantless spying is 
legal and right. Hence, in future years, this will be cited, I am 
confident, by those who want to undermine the FISA Courts, deprive the 
courts the opportunity to make sure there is a justification, an 
argument, a legal basis for granting these warrants. The argument will 
be made: You don't need the courts, because back in 2008, 
telecommunications companies, at the mere request of a President, were 
able to go forward and spend more than 5 years invading the privacy of 
millions of Americans, and when the Senate had an opportunity to 
sanction that activity, it decided to do so, rather than allow the 
court to determine whether that action was legal.
  The word of the Senate should be a valued--I can hear the argument 
years hence. They listened to the debates, they listened to that fellow 
Dodd get up and talk for hours about the issue of immunity and why it 
shouldn't be granted retroactively and they turned him down. That will 
be the precedent cited when faced with similar allegations involving 
future administrations that may decide that financial information, 
medical information, highly private, personal, family information may 
be the subject of unwarranted surveillance to allegedly protect our 
country and keeping us safe. If that is the case, I am confident this 
debate and these votes will be cited as a justification for allowing 
that kind of activity to go forward without receiving the legal 
authority to do so. We will have denied the courts the opportunity to 
decide whether this activity that was the most serious invasion of 
privacy ever maybe in our country was legal or illegal. By granting 
retroactive immunity, we will have made a decision to deprive the 
courts of that responsibility.
  Ultimately, all I am asking for is a fair fight. To reject immunity 
would mean to grab hold of the closest thread of lawlessness we have at 
hand and to pull until the whole garment unravels. But ensuring a day 
in court is not the same as ensuring a verdict. When that day comes, I 
have absolutely no investment in the verdict, either way. It may be the 
Federal Government broke the law when they asked the telecoms to spy 
but that the telecoms' response was an innocent one. It may be the 
Government was within the law and that the telecoms broke it. Maybe 
they both broke the law. Maybe neither did.
  But just as it would be absurd to declare the telecoms clearly 
guilty, it is equally absurd, I would argue, to close the case in 
Congress without a decision. That is what immunity does: It closes the 
case without a decision. Throughout this debate, the telecoms' 
advocates have needed to show not just that they are right but that 
they are so right and that we are so far beyond the pale that we can 
shut down the argument right here, today. That is a burden they have 
clearly not met, and they cannot expect to meet it when a huge majority 
of Senators who will make the decision have not even seen the secret 
documents that are supposed to prove the case for retroactive immunity.
  My trust is in the courts, in the cases argued openly, in the judges 
who preside over them, and in the juries of American citizens who 
decide them. They should be our pride, not our embarrassment, and they 
deserve to do their jobs.
  As complex, as diverse, as relentless as the assault on the rule of 
law has been, our answer to it is a simple one. Far more than any 
President's lawlessness, the American way of justice remains deeply 
rooted in our character; that no President can disturb or should be 
allowed to do so.
  So I am full of hope. Even on this dark evening, I have faith that we 
can unite security and justice because we have already done it for 30 
years. My father, Senator Tom Dodd, was the number two American 
prosecutor at the famous Nuremburg trials, which may have something to 
do with the passion I feel about this issue--the rule of law.
  I have never forgotten the example he and Justice Robert Jackson and 
others set at Nuremberg more than 60 years ago.
  As Justice Robert Jackson said in the opening statement at 
Nuremberg--in fact, I have written it down, but I memorized this years 
and years ago. Robert Jackson's opening statement, speaking to the 
court, talking about the Soviet Union, the British, the French, and 
America, he made the following argument:

       That four great nations, flushed with victory and stung 
     with injury, stay the hand of vengeance and voluntarily 
     submitting their captive enemies to the judgment of the law 
     is one of the most significant tributes that power ever paid 
     to reason.

  That is a great sentence when you think of it. Here we are staying 
the hands of vengeance and power, paying tribute to reason. At 
Nuremberg, there were 21 initial defendants. Madam President, 55 
million people had died, 6 million Jews were incinerated, and 5 million 
others had the same fate befall them because of their politics, 
religion, or sexual orientation. These were some of the greatest crimes 
in recorded history. Winston Churchill wanted to summarily execute 
every one of them. The Soviets wanted a show trial for a week and then 
to kill them all. Robert Jackson, Harry Truman, Henry Stinton, the 
Secretary of War in Roosevelt's Cabinet--this handful of people said: 
The United States is different. We are going to do something no one 
else has ever done before. We are going to give these defendants, as 
great violators of human rights as they are, a day in court. It was 
unprecedented.
  Here they are, the war still raging in the Pacific, gathering in 
Nuremberg, Germany, which had 30,000 people buried in the rubble of the 
city. Prosecutors, judges, and lawyers for these individuals gathered 
together and gave them a day in court that went on for a year.
  And the United States gained the moral high ground. Never before in 
history had the victors given those guilty of the worse atrocities 
imaginable a day in court.
  I cannot believe this country, at this hour, would walk away from the 
rule of law when we stood for it so proudly in the 20th century. In 
fact, that experience at Nuremberg gave birth to a half-century of 
moral authority. It paved the way for the Marshall Plan and for the 
international structures that gave the world relative peace for more 
than a half century. For so many years, both Republican and Democratic 
administrations stood up for them and defended them. The international 
criminal courts and others--none of these institutions would have 
existed were it not for the United States leading.
  Today, when we find ourselves at this moment in this body--of all 
places--walking away from the rule of law, I think it is a dark hour. 
Again, my hope is that by tomorrow reason will prevail here, and we 
will arrive at a different decision and reject this idea that 
retroactive immunity is warranted.
  What is the tribute that power owes to reason? That when America goes 
to war, it doesn't fight for land or for

[[Page 1887]]

treasure or for dominance but for a transcendent idea--the idea that 
laws should rule and not men; the idea that the Constitution does not 
get suspended for vengeance; the idea that this great Nation should 
never tailor its eternal principles to the conflict of the moment 
because, if we did, we would be walking in the footsteps of the enemies 
we despised.
  The tribute that power owes to reason: More than ever before, that 
tribute is due today. If we cannot find the strength to pay it, we will 
have to answer for it.
  There is a famous military recruiting poster that comes to mind. A 
man is sitting in an easy chair with his son and daughter on his lap, 
in some future after the war has ended. His daughter asks him: Daddy, 
what did you do in the war?
  His face is shocked and shamed, because he knows he did nothing.
  My daughters, Grace and Christina, are 3 and 6 years old. They are 
growing up in a time of two great conflicts: one between our Nation and 
enemies, and another between what is best and worst in our American 
soul. Someday soon I know I am going to hear the question: What did you 
do?
  I want more than anything else to give the right answer to that 
question. That question is coming from every single one of us in this 
body. Every single one of us will be judged by a jury from whom there 
is no hiding: our sons and daughters and grandchildren. Someday soon 
they will read in their textbooks the story of a great nation, one that 
threw down tyrants and oppressors for two centuries; one that rid the 
world of Naziism and Soviet communism; one that proved that great 
strength can serve great virtue, that right can truly make might. Then 
they will read how, in the early years of the 21st century, that Nation 
lost its way.
  We don't have the power to strike that chapter. We cannot go back. We 
cannot undestroy the CIA's interrogation tapes. We cannot unpass the 
Military Commissions Act. We cannot unspeak Alberto Gonzales' 
disgraceful testimony. We cannot untorture innocent people. And, 
perhaps, sadly, shamefully, we cannot stop retroactive immunity. We 
cannot undo all that has been done for the last 6 years for the cause 
of lawlessness and fear. We cannot blot out that chapter. But we can 
begin the next one, even today.
  Let the first words read: Finally, in February 2008, the Senate said: 
Enough is enough.
  I implore my colleagues to write it with me. I implore my colleagues 
to vote against retroactive immunity. I implore them to reject it, and 
if we fail to do that, to vote against cloture.
  I have shared my thoughts and views at some length now. But there are 
others who have spoken eloquently on this subject. I think their words 
deserve to be heard because they state far more eloquently than I could 
the importance of all of this and why this is such a compelling case 
and deserving of our attention. Let me share a few of these words from 
the New York Times:

       Even by the dismal standards of what passes for a national 
     debate on intelligence and civil liberties, last week was a 
     really bad week.
       The Senate debated a bill that would make needed updates to 
     the Foreign Intelligence Surveillance Act--while needlessly 
     expanding the president's ability to spy on Americans without 
     a warrant and covering up the unlawful spying that President 
     Bush ordered after 9/11.
       The Democrat who heads the Senate Intelligence Committee, 
     John Rockefeller of West Virginia, led the way in killing 
     amendments that would have strengthened requirements for 
     warrants and raised the possibility of at least some 
     accountability for past wrongdoing. Republicans declaimed 
     about protecting America from terrorists--as if anyone was 
     arguing the opposite--and had little to say about protecting 
     Americans' rights.
       We saw a ray of hope when the head of the Central 
     Intelligence Agency conceded--finally--that waterboarding was 
     probably illegal. But his boss, the 'director of national 
     intelligence, insisted it was legal when done to real bad 
     guys. And Vice President Dick Cheney--surprise!--made it 
     clear that President Bush would authorize waterboarding 
     whenever he wanted.
       The Catch-22 metaphor is seriously overused, but consider 
     this: Attorney General Michael Mukasey told Congress there 
     would be no criminal investigation into waterboarding. He 
     said the Justice Department decided waterboarding was legal 
     (remember the torture memo?) and told the C.I.A. that.
       So, according to Mukaseyan logic, the Justice Department 
     cannot investigate those who may have committed torture, 
     because the Justice Department said it was O.K. and Justice 
     cannot be expected to investigate itself.
       As it was with torture, so it was with wiretaps.
       After the 2001 terrorist attacks, the President decided to 
     ignore the Foreign Intelligence Surveillance Act, or FISA, 
     and authorized wiretaps without a warrant on electronic 
     communications between people in the United States and people 
     abroad. Administration lawyers ginned up a legal 
     justification and then asked communications companies for 
     vast amounts of data.
       According to Mr. Rockefeller, the companies were ``sent 
     letters, all of which stated that the relevant activities had 
     been authorized by the President'' and that the Attorney 
     General--then John Ashcroft--decided the activity was lawful. 
     The legal justification remains secret, but we suspect it was 
     based on the finely developed theory that the government 
     cannot be sued for doing so if they were obeying a warrant--
     or a certification from the Attorney General that a warrant 
     was not needed--and all federal statutes were being obeyed.
       When Mr. Bush started his spying program, FISA allowed 
     warrantless eavesdropping for up to a year if the president 
     certified that it was directed at a foreign power, or the 
     agent of a foreign power, and there was no real chance that 
     communications involving United States citizens or residents 
     would be caught up. As we now know, the surveillance included 
     Americans and there was no ``foreign power'' involved.
       The law then, and now, also requires the attorney general 
     to certify ``in writing under oath'' that the surveillance is 
     legal under FISA, not some fanciful theory of executive 
     power. He is required to inform Congress 30 days in advance, 
     and then periodically report to the House and Senate 
     intelligence panels.
       Congress was certainly not informed, and if Mr. Ashcroft or 
     later Alberto Gonzales certified anything under oath, it's a 
     mystery to whom and when. The eavesdropping went on for four 
     years and would probably still be going on if The Times had 
     not revealed it.
       So what were the telecommunications companies told? Since 
     the administration is not going to investigate this either, 
     civil actions are the only alternative.
       The telecoms, which are facing about 40 pending lawsuits, 
     believe they are protected by a separate law that says 
     companies that give communications data to the government 
     cannot be sued for doing so if they were obeying a warrant--
     or a certification from the attorney general that a warrant 
     was not needed--and all federal statutes were being obeyed.
       To defend themselves, the companies must be able to show 
     they cooperated and produce that certification. But the White 
     House does not want the public to see the documents, since it 
     seems clear that the legal requirements were not met. It is 
     invoking the state secrets privilege--saying that as a matter 
     of national security, it will not confirm that any company 
     cooperated with the wiretapping or permit the documents to be 
     disclosed in court.
       So Mr. Rockefeller and other senators want to give the 
     companies immunity even if the administration never admits 
     they were involved. This is short-circuiting the legal 
     system. If it is approved, we will then have to hope that the 
     next president will be willing to reveal the truth.
       Mr. Rockefeller argues that companies might balk at future 
     warrantless spying programs. Imagine that!
       This whole nightmare was started by Mr. Bush's decision to 
     spy without warrants--not because they are hard to get, but 
     because he decided he was above the law. Discouraging that 
     would be a service to the nation.
       This debate is not about whether the United States is going 
     to spy on Al Qaeda, it is about whether it is going to 
     destroy its democratic principles in doing so. Senators who 
     care about that should vote against immunity.

  Madam President, if I can, I will read from the USA Today, which also 
had a good editorial on this subject matter, dated October 22, 2007. It 
is entitled, ``Our View On Your Phone Records: Immunity Demand For 
Telecoms Raises Questions.''

       As history shows, mass snooping can sweep up innocent 
     citizens.
       Anyone who has ever watched TV's Law & Order: SVU knows how 
     easy it is for police to get the bad guys' LUDs--``local 
     usage details,'' better known as telephone calling records. 
     They only need to get a prosecutor to sign a subpoena.
       Eavesdropping on calls or reading e-mails is a bit tougher. 
     A warrant must come from a judge, and stronger evidence is 
     needed. Even so, it is an efficient process that serves law 
     enforcement's needs while guarding against arbitrary 
     intrusions into the privacy of innocent people.
       But whether those protections still exist in national 
     security cases is very much in doubt.

[[Page 1888]]

       Since Sept. 11, 2001, the Bush administration has 
     repeatedly bypassed the special court set up to preserve 
     balance. Now, with Congress threatening to restore some level 
     of protection, the administration is insisting on legal 
     immunity for telecommunications companies that might have 
     turned over records improperly. Last week, a key Senate 
     committee agreed.
       The request alone is enough to raise suspicion, 
     particularly given the nation's history.
       In the 1960s and '70s when law enforcement and spy agencies 
     launched mass snooping against U.S. citizens, some of the 
     data ended up being used for nefarious purposes, such as IRS 
     tax probes, that had nothing to do with protecting the 
     nation.
       That is the danger when an administration can tap into 
     phone records without court oversight, and it is what's at 
     issue now.
       The administration has repeatedly bypassed the special 
     national security court, arguing that the urgency of the war 
     on terrorism justified its actions.
       In one particularly troubling intrusion, the National 
     Security Agency (NSA), a Pentagon-run spy agency, built a 
     database--with cooperation from some telecom companies--that 
     includes America's domestic calls. The extent of the program 
     remains hidden, one reason many in Congress are reluctant to 
     grab the company's immunity.
       According to the account of one former CEO, the NSA foray 
     has already led to abuse. When Qwest, one of the nation's 
     largest telecom companies, refused to go along with the NSA 
     program--because Qwest lawyers considered it illegal--the NSA 
     allegedly retaliated by denying Qwest other lucrative 
     government contracts. Further, the requests to participate, 
     according to former Qwest chief executive Joseph Nacchio, 
     came six months before the 9/11 attacks. Nacchio's 
     allegations are in court findings unsealed this month that 
     are part of his battle over a conviction of insider trading.
       If the Senate measure becomes law, telecom companies will 
     get immunity from nearly 40 lawsuits without the public 
     knowing what the companies or the government did. Never mind 
     that six of the lawsuits were brought by state officials--
     from New Jersey to Missouri--concerned about possible 
     violation of citizens' privacy.
       There might be some valid reason to grant immunity. The 
     Senate committee agreed after seeing details. But even if 
     there is, the companies should be compelled to tell the 
     public the precise nature and reach of the program, and the 
     program should be put firmly under court review.
       The Senate measure also would place minimal court 
     supervision over future surveillance ventures. A far more 
     sensible House Democratic measure would give the Foreign 
     Intelligence Surveillance Court a greater role.
       That system works well, even in emergencies. In the 
     harrowing minutes after the Pentagon was attacked on 9/11, 
     the court's chief judge, stuck in his car, granted five 
     surveillance warrants from his cell phone.
       Speed, obviously, is important. Nevertheless, it can be 
     achieved without discarding protections that long ago proved 
     their worth.

  The Dallas Morning News had a good article as well on Friday, October 
19, of last year, entitled ``Beck and Call: Verizon too eager to 
surrender phone records'':

       Verizon's willingness to turn over customer telephone 
     records when the government asks--even though investigators 
     often make such requests without a court order--is a 
     troubling practice.
       The company may be motivated by a desire to help--or to 
     avoid government confrontation. But Verizon's approach, 
     disclosed in a letter to Congress this week, is the wrong way 
     to go about this.
       The burden of proof rests with the federal government to 
     prove its need for the records. Except in rare instances, 
     investigators must take their records requests to a judge who 
     then can determine whether to issue a warrant. The 
     Constitution intends just that, in language that fairly 
     balances privacy fears and law enforcement.
       Yet the Bush administration insists on continuing to push 
     the post-9/11 civil liberties vs. security debate in the 
     wrong direction. Because telecom companies that have complied 
     with its requests now face huge lawsuits from citizens-rights 
     groups, the administration wants a law to grant immune 
     businesses sued for disclosing information without court 
     authorization.
       Congress is right to look at the immunity proposal with a 
     skeptical eye, especially since the administration has been 
     reluctant to explain details of its controversial 
     surveillance program to lawmakers. The law would further 
     erode the privacy firewall and remove another layer of checks 
     and balances.
       The phone companies, meanwhile, have refused to tell 
     relevant congressional committees whether they participated 
     in the National Security Agency's domestic eavesdropping 
     program. Their silence is based on concerns that they might 
     illegally divulge classified information if they talk to 
     Congress in too much detail.
       Yet Congress and the courts have legitimate oversight roles 
     in issues of privacy and national security. Due process is 
     necessary to promote transparency and accountability in a 
     democracy. These are foundational principles, even in the 
     more dangerous post-9/11 world.

  There is a further piece I think is worthy of reading, written in 
December of 2005 by a former majority leader of this great body, Tom 
Daschle. It's called ``Power We Didn't Grab.'' Tom Daschle was deeply 
involved, I should point out, in the negotiations dealing with many of 
these matters, particularly in the wake of the resolution that was 
drafted granting the President the authority to go after al-Qaida in 
Afghanistan. Alberto Gonzales later argued that with the adoption of 
that resolution, Congress was granting the President authority to 
conduct the warrantless surveillance that is the subject of our 
discussion this evening.
  That resolution was the subject of some negotiation over several days 
before it was presented for a final vote in this body. So it is worthy 
of consideration that Tom Daschle would write a piece in the Washington 
Post when Alberto Gonzales made the argument that the President's 
authority to require the phone companies to comply with his request 
without a court order was, in fact, never the subject of those 
negotiations.
  I will read Tom Daschle's words on December 23, 2005:

       In the face of mounting questions about news stories saying 
     that President Bush approved a program to wiretap American 
     citizens without getting warrants, the White House argues 
     that Congress granted it authority for such surveillance in 
     the 2001 legislation authorizing the use of force against al 
     Qaeda. On Tuesday, Vice President Cheney said the president 
     ``was granted authority by the Congress to use all means 
     necessary to take on the terrorists, and that's what we've 
     done.''
       As Senate majority leader at the time, 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 
     did not and never would have supported giving authority to 
     the president for such wiretaps. 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.
       On the evening of Sept. 12, 2001, the White House proposed 
     that Congress authorize the use of military force to ``deter 
     and pre-empt any future acts of terrorism or aggression 
     against the United States.'' Believing the scope of this 
     language was too broad and ill defined, Congress chose 
     instead, on Sept. 14, to authorize ``all necessary and 
     appropriate force against those nations, organizations or 
     persons [the president] determines planned, authorized, 
     committed, or aided'' the attacks of Sept. 11. With this 
     language, Congress denied the president the more expansive 
     authority he sought and insisted that his authority be used 
     specifically against Osama bin Laden and al Qaeda.
       Just before the Senate acted on this compromise resolution, 
     the White House sought one last change. Literally minutes 
     before the Senate cast its vote, the administration sought to 
     add the words ``in the United States and'' after 
     ``appropriate force'' in the agreed-upon text. This last-
     minute change would have given the president broad authority 
     to exercise expansive powers not just overseas--where we all 
     understand he wanted authority to act--but right here in the 
     United States, potentially against American citizens. I could 
     see no justification for Congress to accede to this 
     extraordinary request for additional authority. I refused.
       The shock and rage we all felt in the hours after the 
     attack was still fresh. America was reeling for the first 
     attack on our soil since Pearl Harbor. We suspected thousands 
     had been killed, and many who worked in the World Trade 
     Center and the Pentagon were not yet accounted for. Even so, 
     a strong bipartisan majority could not agree to the 
     administration's request for an unprecedented grant of 
     authority.
       The Bush administration now argues those powers were 
     inherently contained in the resolution adopted by Congress--
     but at the time, the administration clearly felt they weren't 
     or it wouldn't have tried to insert the additional language.
       All Americans agreed that keeping our nation safe from 
     terrorists demands aggressive and innovative tactics. This 
     unity was reflected in the near-unanimous support for the 
     original resolution and the Patriot Act in those harrowing 
     days after Sept. 11. But there are right and wrong ways to 
     defeat terrorists, and that is a distinction this 
     administration has never seemed to accept. Instead of 
     employing tactics that preserve Americans' freedoms and 
     inspire the faith and confidence of the American people, the 
     White House seems to have chosen methods that can only breed 
     fear and suspicion.
       If the stories in the media over the past week are 
     accurate, the president has exercised authority that I do not 
     believe is

[[Page 1889]]

     granted to him in the Constitution, and that I know is not 
     granted to him in the law I helped negotiate with his counsel 
     and that Congress approved in the days after Sept. 11. For 
     that reason, the president should explain the specific legal 
     justification for his authorization of these actions, 
     Congress should fully investigate these actions and the 
     president's justification for them, and the administration 
     should cooperate fully with that investigation.
       In the meantime, if the president believes the current 
     legal architecture of our country is sufficient for the fight 
     against terrorism, he should propose changes to our laws in 
     the light of day.
       That is how a great democracy operates. And that is how 
     this great democracy will defeat terrorism.

  Those were eloquent words from our former majority leader who was, as 
I said, deeply involved in the negotiations crafting the resolution 
that was adopted almost unanimously, allowing us to attack al-Qaida, to 
defeat them in Afghanistan. Regrettably, Osama bin Laden and too many 
of his operatives are still on the loose. But that language gave the 
President the authority to act against them. He specifically wanted 
more authority at home. The majority leader and those who worked with 
him rejected that argument and that resolution adopted in 2001, 48 
hours after the attack, specifically excluded the kind of activity that 
Alberto Gonzales and Vice President Cheney claimed was granted in that 
resolution.
  It was worthy to note the language of Senator Daschle during that 
debate.
  I am going to read one more piece, if I may, again going back to 
October. It is ``Immunity for Telecoms May Set Bad Precedent, Legal 
Scholars Say. Retroactive problems could create problems in the 
future.'' This is by Dan Eggen. This was written in October of 2007.
  I made the argument earlier that I was concerned about the precedent-
setting nature of what we are doing. This evening I have been reaching 
back 30 years to language used by our predecessors in this Chamber, 
Republicans and Democrats, who were part of the Church Commission that 
crafted the FISA legislation and the language they used, which easily 
could have been written yesterday and describing the debate we are 
having these days. We are calling upon them to guide us as we make our 
decisions about how to proceed in this day's work with the different 
threats we face, but the threats our predecessors faced were not small 
threats--the Soviet Union, a nuclear holocaust, significant problems of 
surveillance. They had the courage and the wisdom to step back and to 
create a structure that allowed us to maintain that balance between 
security and liberty.
  So it is important because I am concerned that at some future date 
that the votes tomorrow may give a strong precedent to those who have 
never liked the idea of Federal courts granting warrants to conduct 
surveillance but prefer this be done at the mere request of an American 
President.
  I made the case that when the Framers fashioned this Republic of 
ours, had efficiency been their goal, they never would have established 
a written system that had so many inefficiencies in it. In fact, 
requiring the checks and balances of an executive, judicial, and 
legislative branch with all of the requirements that we insist upon 
make this system terribly inefficient in many ways. But the Founders of 
this Republic were not only concerned about what we did but how we did 
things. It is terribly important to be mindful of that in these 
debates. Clearly, we need to gather information, and we need to be able 
to do it in an expeditious fashion. But we also need to make sure that 
how we do that is not going to violate more than 220 years of history, 
of guaranteeing the rights and liberties of individual citizens.
  Thirty years ago, a previous Senate found a way to do that with the 
establishment of the secret Federal courts. These courts are 
established by the Chief Justice of the United States, who appoints 
sitting Federal judges anonymously to serve on these courts. None of us 
ever get to know who they are. But as I pointed out earlier, even on 
9/11, a cell phone one of these secret FISA judges was able to respond 
instantaneously to the request being made to conduct surveillance 
necessary in the minutes after 9/11.
  So it is important not only what we do about today's problem but the 
message we send, the precedent we set for future Congresses when 
confronted in their day, as they will be, with challenges regarding the 
balance between security and liberty.
  So this article, written by Dan Eggen, I think has value, talking 
about how retroactive protection could create problems in the future.

       When previous Republican administrations were accused of 
     illegality in the FBI and CIA spying abuses of the 1970s or 
     the Iran Contra affair of the 1980s, Democrats in Congress 
     launched investigations or pushed for legislative reforms.
       But last week, faced with admissions by several 
     telecommunication companies that they assisted the Bush 
     administration in warrantless spying on Americans, leaders of 
     the Senate Intelligence Committee took a much different tack, 
     opposing legislation that would grant those companies 
     retroactive immunity from prosecution or lawsuits.
       The proposal marks the second time in recent years that 
     Congress has moved toward providing legal immunity for past 
     actions that may have been illegal. The Military Commissions 
     Act, passed by the GOP-led Congress in September of 2006, 
     provided retroactive immunity for CIA interrogators who could 
     have been accused of war crimes for mistreating detainees.
       Legal experts say the granting of such retroactive immunity 
     by Congress is unusual, particularly in a case involving 
     private companies. Congress, on only a few occasions, has 
     given some form of immunity to law enforcement officers, 
     intelligence officials, or others within the government, or 
     to some of its contractors, experts said. In 2005, Congress 
     also approved a law granting firearms manufacturers immunity 
     from lawsuits by victims of gun violence.
       ``It's particularly unusual in the case of the telecoms, 
     because you don't really know what you are immunizing,'' said 
     Louis Fisher, a specialist in constitutional law with the Law 
     Library of the Library of Congress. ``You don't know what you 
     are cleaning up.''
       As part of a surveillance package approved Thursday by the 
     Senate Intelligence Committee, some telecommunications 
     companies would be granted immunity from about 40 pending 
     lawsuits that allege they violated Americans' privacy and 
     constitutional rights by aiding a warrantless wireless 
     surveillance program instituted after the September 11, 2001, 
     attacks.

  I might point out here--and I will digress for a second--that we 
heard earlier testimony that this program may have actually started 
prior to the attacks of 9/11. There has been testimony submitted in 
courts by one of the telecoms, Qwest's CEO, that in fact a request was 
made of them to actually provide warrantless surveillance in January of 
2001, when the administration took office, long before the attacks of 
9/11. So it seems to me that alone ought to be the subject of some 
inquiry.
  We have all accepted the notion that immediately after 9/11, whether 
we liked it or not, it was understandable how in the emotions of the 
moment, that companies, at the request of an administration, even here 
an administration requesting warrantless surveillance, might have 
acted. Not that we would agree or like it but most would understand it.
  My objection, as I said earlier, is not that it went on but that it 
went on for the next 5 years and would still be ongoing were it not for 
the whistleblower and the reports in the media. But what is troubling 
to me is we are assuming this all began after 9/11. There may now be 
some evidence it began before 9/11, which would debunk a lot of 
arguments given on why we should grant retroactive immunity. I merely 
point this out because we read earlier in testimony here that suggested 
this might have been done earlier.
  At any rate, I will continue from Mr. Eggen's article talking about 
the provision we are talking about here.

       The provision is a key concession to the administration and 
     the companies, which lobbied heavily for it.

  Referring to the retroactive immunity.

       Supporters argue the legislation is needed to avoid unfair 
     punishment of private firms that took part in good-faith 
     efforts to assist the government.
       In arguing in favor of such protections earlier this month, 
     President Bush said any legislation ``must grant liability 
     protection to companies who are facing multibillion dollar 
     lawsuits only because they are believed to

[[Page 1890]]

     have assisted in the efforts to defend our Nation following 
     the 9/11 attacks.''
       The head of the intelligence panel, Sen. John D. 
     Rockefeller, made a similar argument after the bill was 
     approved last week. ``The onus is on the administration, not 
     the companies, to ensure that the request is on strong legal 
     footing,'' he said.
       Jeffrey H. Smith, a CIA general counsel during the Clinton 
     administration who now represents private companies in the 
     national security area, said the risk of litigation poses an 
     unfair threat to government officials or others who have good 
     reason to believe they are acting legally. He noted that many 
     intelligence officers now feel obliged to carry liability 
     insurance.
       ``It seems to me that it's manifestly unfair for the 
     officers that conducted that program and the telecoms to now 
     face prosecution or civil liability for carrying out what was 
     on its face a totally lawful request on the part of the 
     government,'' Smith said. ``It's not the same as Abu Ghraib 
     or a CIA officer who beats someone during an interrogation.''
       But civil liberties groups and many academics argue that 
     Congress is allowing the government to cover up possible 
     wrongdoing and is inappropriately interfering in disputes the 
     courts should decide. The American Civil Liberties Union last 
     campaigned against the proposed Senate legislation, saying in 
     a news release Friday that ``the administration is trying to 
     cover its tracks.''
       Sen. Russell Feingold said in a statement last week that 
     classified documents provided by the White House ``further 
     demonstrate that the program was illegal and that there is no 
     basis for granting retroactive immunity to those who 
     allegedly cooperated.'' His office declined to elaborate on 
     the records, which were reviewed by a Feingold staffer.
       Retired Rear Adm. John Hutson, dean and president of the 
     Franklin Pierce Law Center in Concord, N.H., said he is 
     concerned about the precedent a new immunity provision might 
     set.

  The article quotes him.

       ``The unfortunate reality is that once you've done it, once 
     you immunize interrogators or phone companies, then it's easy 
     to do it again in another context. It seems to me that as a 
     general rule retroactive immunity is not a good thing . . . 
     It's essentially letting Congress handle something that 
     should be handled by the Judiciary.''

  These are, I think, very good articles that shed light on some of the 
important issues we need to be looking at.
  Let me, if I can, go back and talk about the Church Commission. I 
think it is important because we are relying so heavily on the work 
they have done and the establishment in the immediate aftermath of the 
Church Commission of the FISA Courts. I have quoted from some of them 
earlier this evening, but I think it is worthwhile to go back and 
listen to their words. Again, I want you to know these words were 
written 30 years ago, but I think people can appreciate how timely the 
language is when you consider the debate we are having. It is hard not 
to wonder how these words weren't prepared less than 24 hours ago, in 
preparation for this debate. I think their warnings and admonitions 
have a timeliness to them that are worthy of including in this 
discussion at this moment. So let me quote from the Church report:

       Americans have rightfully been concerned since before World 
     War II about the dangers of hostile foreign agents likely to 
     commit acts of espionage. Similarly, the violent acts of 
     political terrorists can seriously endanger the rights of 
     Americans. Carefully focused intelligence investigations can 
     help prevent such acts.
       But too often intelligence has lost its focus and domestic 
     intelligence activities have invaded individual privacy and 
     violated the rights of lawful assembly and political 
     expression. Unless new and tighter controls are established 
     by legislation, domestic intelligence activities threaten to 
     undermine our democratic society and fundamentally alter its 
     nature.
       A tension between order and liberty is inevitable in any 
     society. A government must protect its citizens from those 
     bent on engaging in violence and criminal behavior or in 
     espionage or other hostile foreign intelligence activity. 
     Intelligence work has, at times, successfully prevented 
     dangerous and abhorrent acts, such as bombings and foreign 
     spying, and aided in the prosecution of those responsible for 
     such acts.
       But intelligence activity in the past decades has, all too 
     often, exceeded the restraints on the exercise of 
     governmental power which are imposed by our country's 
     constitution, laws, and traditions.
       We have seen segments of our government, in their attitudes 
     and action, adopt tactics unworthy of a democracy, and 
     occasionally reminiscent of the tactics of totalitarian 
     regimes. We have seen a consistent pattern in which programs 
     initiated with limited goals, such as preventing criminal 
     violence or identifying foreign spies, were expanded to what 
     witnesses characterized as ``vacuum cleaners,'' sweeping in 
     information about lawful activities of American citizens.
       That these abuses have adversely affected the 
     constitutional rights of particular Americans is beyond 
     question. But we believe the harm extends far beyond the 
     citizens directly affected.
       Personal privacy is protected because it is essential to 
     liberty and the pursuit of happiness. Our constitution checks 
     the power of government for the purpose of protecting the 
     rights of individuals, in order that all our citizens my live 
     in a free and decent society. Unlike totalitarian states, we 
     do not believe that any government has a monopoly on truth.
       When government infringes on these rights instead of 
     nurturing and protecting them, the injury spreads far beyond 
     the particular citizens targeted to untold number of other 
     American citizens who may be intimidated.
       Abuse thrives on secrecy. Obviously, public disclosure over 
     matters such as the names of intelligence agents or the 
     technological details of collection methods is inappropriate. 
     But in the field of intelligence, secrecy has been extended 
     to inhibit review of the basic programs and practices 
     themselves.
       Those within the executive branch and the Congress who 
     would exercise their responsibilities wisely must be fully 
     informed. The American people as well should know enough 
     about intelligence activities to be able to apply its good 
     sense to the underlying issues of policy and morality.
       Knowledge is the key to control. Secrecy should no longer 
     be allowed to shield the existence of constitutional, legal 
     and moral problems from the security of all three branches of 
     government or from the American people themselves.

  Those are incredible words that could. None of us could say it more 
eloquently than our colleagues did 30 years ago.
  I can't tell you all the names of the Republicans and Democratic 
Senators who wrote this language, but they came from all parts of the 
country. They were, many of them, veterans of World War II, had served 
in Korea. Dan Inouye was here. I know that. Senator Byrd, whom I sit 
next to, was here. Senator Ted Kennedy was here. Senator Ted Stevens 
was here for those debates. Those are the Members I can think of off 
the top of my head who were probably Members back in 1978 when this was 
written. Joe Biden was here as part of that debate. Patrick Leahy was 
here in 1978. I think Carl Levin and John Warner had just arrived. I 
think they had been elected that year. I am not sure.
  But these are wonderful Members who sat and realized we needed to set 
up that balance between security and liberty and gave us the FISA 
Courts, the Foreign Intelligence Surveillance Act. Tonight, as we 
consider whether to grant immunity to the telecom companies and close 
the door on determining the legality or illegality of their actions, I 
think these words have tremendous relevance. Every Member ought to take 
them and read them and think about them.
  I hear the words of the President, and I am disappointed he said he 
would veto the bill if we strip immunity. I have listened to Senator 
McConnell, my good friend from Kentucky, saying we have to adopt this 
because the President will veto the bill otherwise. That is not the 
basis upon which the Congress ought to act. I have rarely heard that 
argument made here. You can raise it, certainly, as a point, but the 
suggestion that Congress or this body ought to act differently because 
the President is going to veto something or threatens a veto is not the 
basis upon which we ought to make decisions, particularly when it comes 
to matters involving the rule of law and the Constitution of the United 
States.
  Those issues of the Constitution and the rule of law ought to trump 
the reputational damage. The issues of the Constitution and the rule of 
law ought to trump the arguments somehow that the telecom companies 
will be less willing to step forward and help conduct the surveillance 
of our country when we are threatened by outsiders.
  I cannot undo some of the things that have been done already. I wish 
I could undo the Military Commissions Act. I wish I could the outrages 
that occurred at Abu Ghraib. I wish I could undo what has happened at 
Guantanamo Bay. I wish I could undo secret prisons and extraordinary 
renditions. But there is a pattern here. It is not just the one event 
or two, it has been a pattern of behavior almost from the very 
beginning that ought to be deeply troubling to every single one of us.

[[Page 1891]]

  So while I cannot undo those actions, why would I then add to that 
list by granting this retroactive immunity? What more do we need to 
know? Why are we being asked to do this? Why did this administration 
ask this committee to grant broad-based immunity to every single 
individual in our Government and our agencies, as well as to the 
telecom companies? What was behind that request? What did they fear 
when they sought that kind of unprecedented immunity, for both the 
private companies and every official involved in the decision to grant 
or insist upon this compliance? Why were they asking us to do that?
  So I know, while others have written about this here, I find it 
deeply troubling that we can once more add this to the destruction of 
tapes and the CIA, the U.S. attorneys scandal involving the Department 
of Justice and U.S. attorney's offices. All of these matters, again, 
are in and of themselves individual cases, and yet, when you step back 
and think about the totality of them, why would this Congress, at this 
hour, decide we are going to yet once again say: OK, we'll let you get 
away with it one more time.
  I wish I could go back and undo all of those abuses. I cannot. But we 
have the opportunity not to do this. All it will take is 39 other 
Senators.
  All it will take is 40 of us here decide that at this moment in our 
history that we are going to stand up for the rule of law, we are going 
to stand up for the Constitution. No other issue we can get to is as 
important as the Constitution of the United States, no other issue is 
as important to me, ought to be to all Members, as the rule of law. And 
as I have done on five separate occasions since January 3, 1981, when 
as a 36-year-old I stood over here on the floor of the Senate, with 
Lowell Weicker standing beside me--I raised my right hand and took an 
oath to defend and uphold the Constitution of the United States. I am 
proud to have done it five different times, as every Member here has 
done at least once. What matter, what issue, would be more important 
than defending the Constitution of the United States?
  So tomorrow we may have the chance--40 of us--to not invoke cloture 
and to insist that we are going to fight for this principle of the rule 
of law and not add to this litany that is going to be revisited over 
and over again: The Military Commissions Act, waterboarding, Abu 
Ghraib, Guantanamo Bay, secret prisons, extraordinary renditions, U.S. 
attorneys scandal, Scooter Libby, destruction of CIA tapes. How many 
more do you need? Why not add this: retroactive immunity to the telecom 
industry, at the request of a President who did not want the courts to 
determine the legality or illegality of the actions?
  During a critical moment in American history, I for one am not going 
to allow that to happen.
  I realize I have been talking a long time here. May I inquire how 
long I have been speaking?
  The PRESIDING OFFICER (Ms. Klobuchar.) Two hours 25 minutes.
  Mr. DODD. As I say, I have already spent over 20 hours on this. And 
as I say, I have never engaged in extended debate in my 27 years 
because the matters were handled by others or because we came up with a 
resolution of issues. But I stand here tonight, as I have over the last 
several months--as many of my colleagues know, I interrupted a 
Presidential campaign to come back and spend 10 hours on the floor here 
when this matter came up in December, to raise my concerns about this 
issue. I do not want to try the patience of the staff and others, 
including my colleague who is patiently sitting in the Presiding 
Officer's chair with little or no relief. So more than 20 hours of 
making my case here is probably more than most people can tolerate. But 
I want people to know how much I care about this and how much I wish 
and hope and pray that this evening, Members, regardless of party, will 
stand up tomorrow for the rule of law.
  So tonight, my fervent prayer and hope is that when this vote occurs, 
first of all, that I will be surprised and that 50 of our colleagues 
here will join with Senator Feingold and myself and vote to strike this 
language from the Intelligence Committee bill. That would be the best 
result of all, and then we can send this bill to the other body and 
have it resolved and sent to the President, hopefully, for his 
signature. If that doesn't occur, then I hope 38 others would join 
Senator Feingold and me in voting against cloture in a historic moment 
and send this bill back to be revised to comply with the Judiciary 
Committee's decision excluding the retroactive immunity. That would be 
the second best result.
  With that, Madam President, after almost 2\1/2\ hours and the hours 
before, I yield the floor.

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