July 9, 2008
Statement
Floor Statement Opposing Retroactive Immunity to Telecom Companies in FISA
MR. REED: Mr. President, I wish to spend a few minutes discussing why I vote against final passage of H.R. 6304, the House companion to S. 2248, the FISA Amendments Act of 2008. I would like to begin by commending Senators Rockefeller and Bond who have negotiated this bill, literally for months, in order to reach the compromise that we voted on today.
I believe that many aspects of this bill are an improvement, not only to the Protect America Act which passed last August, but also to S. 2248, the bill we voted on in February. I opposed both of those bills. This compromise bill specifies that FISA and certain other statutes are the exclusive means for conducting surveillance on Americans for foreign intelligence purposes. It requires the inspectors general of the Department of Justice, the Department of Defense, the National Security Agency, and the Director of National Intelligence to conduct a comprehensive review and issue a report on the President's surveillance program. It requires the intelligence community to create reverse targeting guidelines so that the National Security Agency cannot conduct surveillance of a U.S. citizen without a warrant by targeting a foreigner. Finally, it sunsets this legislation in 4 and a half years rather than the 6 years called for in the original bill. All of these measures increase oversight and help protect civil liberties and are helpful changes.
However, title II of this bill still grants retroactive immunity to telecommunications companies for actions they may or may not have taken in response to administration requests that may or may not have been legal. As I have stated before, the administration has had years to provide the written legal justification that they gave the telecommunications companies when they requested their cooperation in the aftermath of September 11. A few of my colleagues on the Judiciary Committee and Intelligence Committee were allowed to read certain documents related to this matter after extensive negotiations with the administration. However, I, and the rest of my Senate colleagues who are not on those committees, were denied access to those documents. In addition, the telecommunications companies who have been named in several lawsuits have been prohibited by the administration from providing any information regarding this issue to the courts, to the plaintiffs, to members of Congress, or to the public.
In good conscience, I could not simply trust with blind faith that the administration and telecommunications companies took proper, lawful actions.
I therefore supported three attempts to strip or limit this immunity during today's debate.
First, Senator Dodd offered an amendment to strike title II. When that failed, Senator Specter offered an amendment to require a Federal district court to assess the constitutionality of the terrorist surveillance program before granting retroactive immunity to the companies alleged to have assisted the program. This amendment also failed.
As a final effort, Senator Bingaman offered an amendment which would have stayed all pending cases against the telecommunication companies related to the government's warrantless surveillance program and delayed the effective date of the immunity provisions until 90 days after Congress receives the required comprehensive report of the inspectors general regarding the program.
If Congress took no action in that time, the telecommunications companies would receive immunity. Unfortunately, that amendment also failed.
The Senate had three opportunities to implement sensible measures to ensure that the grant of immunity to the telecommunication companies was appropriate. But these amendments were voted down.
I believe the result sets a dangerous precedent. We must take the steps necessary to thwart terrorist attacks against our country, but these steps must also ensure that the civil liberties and privacy rights that are core to our democracy are protected. This bill fails to meet this threshold. For these reasons, I oppose the passage of this bill.
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