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| February 11th, 2008 |
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Media Contact(s): Jared Whitley (202) 224-5251 |
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Printable Version |
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HATCH: THE FISC IS NOT A TRIAL COURT, NOR SHOULD IT BE
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Washington – Today Sen. Orrin G. Hatch (R-Utah) offered his opposition to amendment #3910 to the Foreign Intelligence Surveillance Act. Prepared remarks follow.
I will oppose this amendment. As has been said countless times, the immunity provision in this legislation was created after months of extensive debate and negotiation between Congress and the intelligence community.
I can’t emphasize enough the painstaking work that the Intelligence Committee undertook in order to create this immunity provision. The Chairman of the Senate Select Committee on Intelligence stated the following in the intelligence committee report: “The [Intelligence] Committee did not endorse the immunity provision lightly. It was the informed judgment of the Committee after months in which we carefully reviewed the facts in the matter. The Committee reached the conclusion that the immunity remedy was appropriate in this case after holding numerous hearings and briefings on the subject and conducting a thorough examination of the letters sent by the U.S. government to the telecommunications companies.”
The Administration wanted more than what is in this bill, and they didn’t get it.
Let’s look at what this means in relation to ongoing litigation. Since this immunity compromise provides NO immunity for government agencies or officials, the following 7 cases will continue without being affected by this legislation:
Al-Haramain Islamic Foundation, Inc. v. George W. Bush
ACLU v. National Security Agency
Center for Constitutional Rights v. George W. Bush
Guzzi v. George W. Bush
Henderson v. Keith Alexander
Shubert v. George W. Bush
Tooley v. George W. Bush
Now I want to draw attention to the first case, Al-Haramain vs George W. Bush. The Al-Haramain Islamic Foundation has been designated by the Department of the Treasury as a “Specially Designated Global Terrorist” for providing support to al Qaeda and was similarly designated by the United Nations Security Council. Now if there was ever a case which should be dismissed, this is it. A terrorist organization providing support to Al Qaeda sues the President for listening to them. Unbelievable! And yet, since the immunity provision in this bill is silent on the issue, this case will go on.
I highlight this to remind people that the provision in the bill already represents a compromise. Despite repeated attempts to tweak this compromise, it remains the most appropriate and just mechanism for resolution of this issue. Just like the faulty ideas of government indemnification and government substitution, FISC review of certifications is yet another alternative that fails to improve on the original bipartisan immunity compromise. Just like movie sequels, these options are simply not as good as the original.
I will oppose any provisions which weaken the immunity compromise. This amendment we are debating will do just that. Rather than rely on the carefully crafted language, this amendment introduces radically new ideas which completely change the dynamic of the immunity provision.
Rather than allowing the presiding district judge to review the Attorney General certification called for in this bill, this amendment unnecessarily expands FISC jurisdiction into areas unheard of when this court was created nearly 30 years ago, and equally unheard of in 2008.
Let’s remember what it is the FISC was created to do: “a court which shall have jurisdiction to hear applications for and grant orders approving electronic surveillance.”
So the FISC hears applications for and grants orders approving electronic surveillance. That’s it. That’s all they were created to do.
And yet this legislation will completely alter the nature of this court, by transforming it into a trial court for adversarial litigation. This completely alters the intention of the FISA from 1978 which carefully created this court.
The role of the FISC has been greatly misunderstood during this debate. I would suggest that we pay close attention to a recent opinion from the FISC, which is only the third public opinion in the history of the FISC. The importance of this quote has been emphasized many times by Senator Bond. Here’s what the FISC said:
“Although the FISC handles a great deal of classified material, FISC judges do not make classification decisions and are not intended to become national security experts. Furthermore, even if a typical FISC judge had more expertise in national security matters than a typical district court judge, that expertise would still not equal that of the Executive Branch, which is constitutionally entrusted with protecting the national security.”
Going beyond the fact that this amendment would turn the role of the FISA court on its head, let’s look at what the FISC is asked to do in this amendment.
According to the language, liability protection would only occur in three limited instances: 1) The statutory defense in 18 USC 2511(2)(a)(ii) has been met. 2) the assistance of electronic communication service providers was undertaken on good faith and pursuant to an “objectively reasonable belief” that compliance with the government’s directive was lawful. 3) Assistance was not provided.
Regarding the first instance in which litigation would be dismissed, we need to realize that 18 USC 2511 is NOT the only statute that allows the government to receive information from telecommunication companies. There are numerous statutes which authorize the government to receive information from private businesses.
Regarding the second narrow instance for dismissal of litigation, the phrase “objectively reasonable belief” is not defined in the legislation. What does this mean? How can it not be given a definition if the court is supposed to rely on it?
So this amendment would grant the FISC new jurisdiction to review past conduct of private businesses utilizing a standard which did not exist at the time of the supposed activity; and a standard which is not even defined in the legislation which creates it? Wow.
In addition, this amendment would allow plaintiffs and defendants to appear before the FISC. But we should note, the FISC is not a trial court, and it has never had plaintiffs in ongoing civil litigation appear before it in its nearly 30 years of existence.
There are approximately 40 civil cases which are ongoing. Would all of these plaintiffs appear before the court? How would classified information be protected?
This amendment would create an entirely new role for the FISC, thus abandoning the very formula by which the FISC was created in the first place. Remember, the FISC was created to be a specialized court. And yet, the expansion of FISC jurisdiction and duty required by this amendment brings us down a road where the FISC could be transformed from a specialized court to an appendage of a District Court. The precedent set by this amendment could forever alter the role of the FISC.
Quite simply: The FISC is not a trial court, nor should it be.
Quite simply: The FISC is not a forum for adversarial litigation, nor should it be.
This amendment extends the rationale that the answer to any question during this debate is “have the FISC look at it”. The role of the FISC is vitally important. But the FISC is NOT the answer to every question during this debate! Misguided attempts to expand the FISC to be the purported solution to any alleged problem with terrorist tracking are impractical, imperceptive, and inappropriate.
We’re long past the time for guesswork, and we need to support the tried and true bipartisan immunity provision as an appropriate remedy to a critical problem. I reiterate my strenuous objection to this amendment, and urge my colleagues not to support an amendment which introduces far too many unanswered questions into a debate which needs none.
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