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The Standing Rules of the Senate are drafted to encourage vigorous public debate on our nation’s most important issues. Indeed, the U.S. Senate is often referred to as “the world’s greatest deliberative body.” The Rules allow any Senator to seek recognition from the Chair at any time and, absent a temporary agreement to the contrary, to speak without interruption so long as he or she wishes. Debating important questions before the Senate is one way a Senator can highlight an issue, advocate for a change in policy, or voice his or her opinion on pending legislation.

Senate debate occurs in public, and is televised on CSPAN and transcribed in the Congressional Record. For your convenience, I post transcripts of my Senate floor speeches on this site for your review. I hope you find them informative and useful. My web site also makes available information on my voting record and legislation that I have sponsored in the Senate.



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Sessions Debates the Foreign Intelligence Surveillance Act

Wednesday, February 6, 2008

Mr. SESSIONS. Mr. President, I would like to share some thoughts on the FISA legislation. It is critically important, and we need to pass the Intelligence Committee bill.

I will first say, in response to my able colleague from Illinois, that General Hayden's comments in which he indicated three people had been subjected to waterboard torture are something we ought to think about. First, I am glad, as he said and has been repeated, waterboarding was only used three times early on after 9/11 against some of the most dangerous people we have ever dealt with.

As a result of the debate and discussion about that, we had an amendment on the floor of the Senate, which Senator Kennedy offered to the Military Commissions Act in 2006, to prohibit waterboarding. It failed 46 to 53. We have a statute that does prohibit torture--Congress passed it overwhelmingly and it was supported by Senators KENNEDY, LEAHY, BIDEN, and others--that defined torture as infliction of severe physical or mental pain or suffering. I am glad we are no longer utilizing waterboarding. I hope we never have to do it again.

I just want to say to my colleagues, be careful how you portray the United States around the world.

Mr. Goldsmith, who has been quoted here and previously testified before our committee, has written a book. He said this war on terror has been the most lawyered war in the history of the Republic. Lawyers have been involved in everything. Great care has been given to ensure the law was followed. To compare waterboarding of 3 individuals to what was done to American prisoners by the Japanese in World War II is just unthinkable. To date, not a single prisoner whom we have captured in the War on Terror has died, to my knowledge, in American custody--maybe or one or two from some disease, but certainly not from abuse.

I just finished reading the book ``Hells Guest'' by Mr. Glenn Frazier from Alabama, a Bataan Death March survivor. About 90 percent of those prisoners died. They starved to death. They were beaten on a regular basis and abused in the most horrible way.

To even compare what was done to American soldiers wearing a uniform lawfully being a combatant to what has been done to a few people without any physical or permanent injuries is not fair. It is part of a rhetoric designed for political consumption at home that has embarrassed our country around the world and led decent people around the world to believe our military is out of control and we are systematically abusing and torturing prisoners when it is not so. We ought to be ashamed of ourselves to go on again and again about it.

We continue to be confused. Our country faces very real dangers. Terrorists are determined to damage this country. It is not just talk. We know it is true. They have done it before. They have attacked us around the world. They attacked us repeatedly before 9/11, and they desire to destroy our country.

Our administration made a decision after 9/11 that we could not treat these kinds of military attacks, designed to destroy our country by organized foreign forces, as normal law enforcement. I was a former Federal prosecutor. In a criminal prosecution, you try to catch people after they have committed the crime. But these acts are so horrible that the nature of them is such that they are acts of warfare and not crimes, and they need to be treated in that fashion. We remain somewhat confused about it. So the old policy meant you would investigate after the crime was committed. It was basically a stated or implicit policy of the Clinton administration. We cannot return to that kind of strategy.

One of the most important legal powers and authorities we have to defend America is the Foreign Intelligence Surveillance Act. It has played a key role in preventing subsequent attacks on U.S. soil for the last 6 years. We are dealing with very real, very imminent threats, and we must continue to assist the fabulous military and intelligence personnel who are working this very moment long hours to protect our Nation.

I have visited our National Security Agency and met with the people who gather the intelligence under this act. They love America. These are not people who are trying to harm our country and deny us our liberties. They are sterling individuals who carefully follow the rules we give them. They follow the rules. They say they cannot continue effectively to do their job unless we pass this legislation. They cannot continue to do what they need to do.

The terrorists waging war against our country do not fight according to the rules of warfare, international law, moral standards, or basic humanity. They have even, in recent days, apparently used mentally ill women as suicide bombers, setting off bombs that have resulted in the deaths of other people, as well as the poor people who had the bombs strapped to them.

So, historically, we have provided the protections of the Geneva Conventions only to those whose conduct falls within the rules of war, those who fight under a flag of a nation, who wear uniforms against other organized military units. However, under a twisted rationale, predicated on the belief by some that we are not fighting a real war, we have given more rights to these individuals, who flatly reject any rule of war, than we have provided to legitimate prisoners of war who have followed the rules of war. We have done that in a number of different instances--it is sort of amazing to me--including providing them with habeas corpus relief to go to Federal court. These are not traditional prisoners of war, but prisoners who are unlawful enemy combatants. So we have endangered, sometimes I really believe, not only our troops, who put themselves in harm's way--and are in harm's way right now--to carry out the policies we gave them, but innocent Americans here at home.

We have to keep this threat in the forefront of our minds. These are individuals dead set on the destruction of our country at any cost. There is nothing they will not do.

Let me state that the FISA law should be made permanent. It should not merely be extended with another sunset provision. It is a fallacious argument to claim we cannot revisit a law unless there is some sunset when it ends. As Members of this Congress, it is incumbent upon us to continually review legislation we pass to ensure that the laws are accomplishing the goals set forth and that no unintended consequences occur. There is no sound reason to pass critical legislation such as the Protect America Act and slap an expiration date on it.

Fighting the war on terror is a long-term enterprise that requires long-term institutional changes. As the Vice President said in a recent speech:

The challenge to the country has not expired over the last six months. It won't expire any time soon, and we should not write laws that pretend otherwise.

The Intelligence Committee bill is a collaborative, bipartisan compromise that was crafted in consultation with members of the Intelligence Committee, the Director of National Intelligence, the Department of Justice, and the intelligence community after months of negotiation and review of highly sensitive information, most of which was classified, secret, about the current surveillance procedures and how they were being used by the Government to obtain critical national security information. We cannot overstress that the committee most intimately involved with this process and the electronic measures being utilized voted their bill out by an overwhelmingly bipartisan 13-to-2 vote.

Remember, it has been over 6 years 4 months since the terrible attacks of September 11, and we may be most thankful that not one attack has been carried out on our soil since that day. As we move further from that dreadful day, I fear our memories have begun to fade. Otherwise, there is no sound justification for doing anything other than reauthorizing the Protect America Act, which would allow the intelligence community to simply continue, uninterrupted, their work which has been protecting this Nation and can continue to protect it in the future.

After the intelligence Committee passed a bill, the Senate Judiciary Committee, of which I am a member, got involved and produced a partisan bill. We already voted to table the partisan Judiciary substitute, and we debating the bipartisan

Intelligence Committee bill. Let me point out, however, something that happened in the Judiciary Committee. The bill produced by the committee was given very little process during one committee meeting where 10 Democratic amendments were accepted along a strict party-line vote, and the bill itself, ultimately, was voted out with only Democratic support. No Republican voted for it. It was a purely partisan bill.
Strikingly, the one vote that garnered bipartisan consideration was against an amendment that was offered by Senator Feingold to strip the retroactive liability protections found in section 2 of the Intelligence bill.

We had a discussion and vote on whether the liability protections to keep the companies that helped us and responded to Government requests--whether they should be sued for doing so--should be stripped from the bill. We voted in the Judiciary Committee, 12 to 7, to follow the recommendation of the Intelligence Committee bill that they passed 13 to 2, and keep the limited liability protections. So it was a 12-to-7 vote to defeat the Feingold amendment that would have removed those liability protections.

Directly after that vote, however--it was curious how it all happened--but directly after that vote, Chairman Leahy moved to report only Title I of the Judiciary substitute bill out of Committee. When that passed, that effectively stripped the liability protection provisions the committee had just voted to keep.

The point is that the Democratic-controlled Judiciary Committee, when voting directly on removing retroactive liability, voted 12 to 7 to keep it. But by the time we passed out the Judiciary Committee's version of the bill, we had taken it out. I'm not sure people fully understand how that occurred, but it certainly was an odd thing that it passed out of committee without liability protection, when we specifically voted to keep that language in the overall bill.

Now, the main area of disagreement is over this important question that will be coming up, I understand, in the amendment offered by Senator Dodd, amendment No. 3907--and a Specter-Whitehouse amendment that will allow substitution--which will, in effect, allow litigation to continue against telecom companies that responded to the requests of the Attorney General of the United States, certified by the President. So our disagreement is whether we should provide these good corporate citizens who cooperated with a formal written request by the Attorney General of the United States, certified by the duly-elected President of the United States, to provide information for a surveillance program implemented shortly after the attacks on September 11--and at that point in time, we did not know how many terrorist cells there were in the country and what plans they may have had.

Now, the nature of the program is highly classified, but after an uproar of complaints, the procedures were studied carefully by Congress, and we reacted by giving approval to the program in passing the Protect America Act overwhelmingly last August. I did not want to be too lighthearted about it, but I remember all the brouhaha that this program was somehow wrong and had to be eliminated, and people made all these unsubstantiated allegations. But after we went in great depth, we found, as Mr. Goldsmith said, that the lawyers have been on top of this since day one. It was a carefully constructed program. A court opinion issues last spring caused us to not be able to continue the way it was being done, and the Intelligence community asked us for legislation so it could continue. The Congress passed the Protect America Act this summer, but it was a short-term bill that lasted only 6 months.

All I would want to say is, nobody apologized to President Bush or the Attorney General of the United States or the people at the National Security Agency for all the bad things they said about them. After having studied what they did, we concluded it is constitutional and legal and proper and necessary, and we actually passed a law to authorize it to continue.

But still, there have been over 30 lawsuits now filed against telecom providers for their alleged participation in the terrorist surveillance program--30 lawsuits. Analysis of these lawsuits leads only to the conclusion that the plaintiffs are substituting speculation and a fevered brow for fact and are ignoring the dangerous consequences these lawsuits can have on our national security.

I do not know who is actually filing these lawsuits. I will just say this, parenthetically: Last October, before the last election, Lancet magazine produced a report--a medical magazine in England--that said 500,000 to 700,000 Iraqis were killed by the American military in Iraq. And ABC, CBS, and our Democratic colleagues all raised cane that, unbelievably, we would kill this many people. After the election was over--and by the way, the guy who wrote the report said he wanted to be sure it came out before the election--we learned some things about it.

In a fabulous article in the National Journal, an unbiased magazine, they detailed the fraudulence of that article, and pointed out that even an antiwar group said, at most, it was 50,000, not 500,000 or 700,000. And where did they find out the money for the Lancet article came from? George Soros, and the MoveOn.Org crowd. The ``blame America first'' crowd. Well, I don't know who is actually funding these lawsuits. We ought to ask some questions about it. Certainly there is no indication that anybody's liberties have been impacted adversely.

If these suits are allowed to continue, we face a number of problems. The sources and methods relied on by our intelligence community to conduct surveillance are highly classified, and if these lawsuits are allowed to proceed, even allowing for the Government to be substituted for the telecom companies, we run the risk of exposing the things our enemies really want: classified national security information. Make no mistake, if forced to defend themselves against lawsuits brought about because they cooperated with a government request certified to be legal, companies will certainly hesitate or refuse outright to cooperate in the future. Even where substitution by the Government is an option, we would be putting national security decisions in the hands of corporate counsels in the future whose duties--and their first responsibilities--extend to the stockholders of their company, and not the national security.

If we ask a company to help us, do we want all the lawyers in that company to say: Wait a minute. The last time we worked with you government we got sued, and we are going to review all of this because some court may hold this--or George Soros may fund some lawsuit and tie us up in court. We don't think we want to help. I think they would naturally take that tack in the future to resist cooperation.

During floor debate in December, the distinguished chairman of the Intelligence Committee, our Democratic colleague Senator Rockefeller, said this. This is what he said about the matter:

Our collective judgment-- and he is talking about the Intel Committee members-- Our collective judgment on the Intelligence Committee is that the burden of the debate about the President's authority should not fall on the telecommunications companies-- In other words, the debate about whether the President had authority to do this shouldn't fall on the telecommunications counsels-- because they responded to the representations by Government officials at the highest levels that the program had been authorized by the President and determined to be lawful and received requests, compulsions to carry it out. Companies participated at great risk of exposure and financial ruin for one reason, and one reason only: in order to help identify terrorists and prevent follow-on terrorist attacks. They should not be penalized for their willingness to heed the call during a time of national emergency.

Senator Rockefeller said that.

The ranking member of the Judiciary Committee who favors substitution has stated this, flat out:

The telephone companies have acted as good citizens.

Certainly they have. In many instances, the Government must seek assistance from the private sector and private individuals to help protect our national security and even local security in our communities. In order for this practice to continue, we must allow them to rely on assurances that the assistance they provide is not only legal but essential to protect our national security without fear that they will have their names dragged through the mud by protracted litigation initiated by the ``blame America first'' crowd which subscribes to wild theories about Government conspiracies to deny people their liberty. They are forgetting the safety of America, and they are ignoring sound legal precedent.

Some in this body sincerely believe that liability protection is not needed if these companies did nothing wrong, they say. Well, this is faulty reasoning since either allowing the lawsuits to proceed or substituting the Government will still force them to be a party to lawsuits that run the risk of exposing national security information or doing irreversible financial and reputational damage to companies innocent of any wrongdoing. We are putting these companies in harm's way when they, bound by a sense of patriotism and civic responsibility, participate in a government program that was certified to be legal by the Attorney General of the United States and the President of the United States.

If the Government is substituted--in accordance with one of the theories that has been offered--in the place of a particular company, it will most certainly assert the state secrets privilege, leaving, in effect, the company virtually impotent when it comes to mounting a defense and showing what their legitimate actions were. Due to the nature of this state secrets privilege, a company will be forbidden from making their case and will be left without the ability to even confirm or deny their participation in the program. We should applaud the actions of these citizens, not stab them in the back by suing them for their actions.

To refresh everyone's memory, the Intelligence Committee, after months of negotiation in highly classified settings, rejected an amendment to strip liability protection from the bill for these companies by a vote of 12 to 3. It then passed the bill out in toto by a bipartisan vote of 13 to 2, protecting these companies from lawsuits.

The Judiciary Committee, on the other hand, had one markup after less than 2 weeks of reviewing the Intelligence Committee's legislation, and rejected an amendment specifically that would have denied liability protection by a vote of 12 to 7. So we voted not to allow them to be sued either. Furthermore, the Judiciary Committee rejected an amendment to allow the Government to be substituted for the plaintiffs by a vote of 13 to 5. We rejected substitution too, although the liability protections were ultimately removed from the bill the Judiciary Committee passed.

Even if the Government is substituted, plaintiffs in litigation will seek discovery, they will file depositions and ask for interrogatories and motions to produce. They will seek trade secrets and highly classified technologies. Companies would still face many litigation burdens. They would be--we would be subjecting them to harm, not only from consumer backlash, but their international business partners will be pressured around the world.

Under the limited liability protections incorporated in the Intel bill, plaintiffs seeking to question the Government will have their day in court as it only protects good corporate citizens from civil suit. So the liability protections in this bill do not preclude lawsuits against the Federal Government from going forward. In fact, there are at least seven lawsuits currently pending against the Government that will proceed against the Government or Government officials. This was accepted by the Intelligence Committee. Some wanted to say you couldn't sue the Government for these activities also, but the Intel Committee reached an agreement, an overwhelmingly bipartisan agreement, that would allow those lawsuits to proceed.

The companies that helped the Government did so to help protect us from further attack, and valuable information has been gathered with their help. I have been out to the National Security Agency. I have talked with the people. I know they scrupulously follow the rules we give them, and I know they have gained great, valuable information through this program, and I know they lost very valuable information when the program had to be stopped. This information has saved undoubtedly countless American lives by enabling our intelligence community to thwart attacks.

Some have said this amounts to amnesty, but that couldn't be further from the truth. Amnesty is an act of forgiveness for criminal offenses, such as granting citizenship to people who broke the law to come into our country illegally. The companies were operating under a certification of legality in a time of national danger doing what they could as Americans to follow the law and prevent future attacks. At no point during their participation were their actions illegal. For Heaven's sake. To grant liability protection is to adhere to that great Anglo-American legal tradition for hundreds of years that when called upon by a law officer, with apparent legal authority, wearing a uniform, out on the street, a citizen is not to be held legally liable if, in responding to the officer, the officer was wrong. That is all we are talking about. That is a fundamental, historical, legal principle. The only question--the legal question has always been simply this: whether the citizen was responding to a legitimate request by a government law officer, a police officer to chase a bad guy. Was the citizen acting reasonably in believing this was a legitimate law enforcement request and he was helping by being a good citizen. That is the test. If he participated knowingly with somebody acting illegally, then that citizen could be liable. Certainly certification by the Attorney General and the President of the United States in written documents suffices as a legitimate request.

The bottom line is, we do not need to pass legislation that panders to the extreme interest groups in America who find fault in everything our people do, our law enforcement and intelligence officers, and that fosters a fundamental mistrust of those officials who are working daily to serve all of us. The burden should not fall on the shoulders of good corporate citizens who are acting patriotically to help save lives and protect our country.

I urge my colleagues to vote to support the Intel Committee bill, a carefully crafted, carefully studied, bipartisan bill. I also urge my colleagues to support the liability protections in the Intelligence Committee legislation and a vote against any amendments that attempt to strip these provisions or in any way alter the carefully structured, limited provisions of the bill.

I thank the Chair and yield the floor.





Judiciary

February 2008 Floor Statements