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| January 28th, 2008 |
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Media Contact(s): Jared Whitley (202) 224-5251 |
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HATCH SUPPORTS BUSH CALL TO PASS ANTI-TERRORIST LEGISLATION
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Washington – In a speech on the Senate floor, Sen. Orrin Hatch urged Democrats to work with Republicans to pass the Foreign Intelligence Surveillance Act (FISA) modernization act, which empowers the government to monitor potential terrorist activity abroad. In his State of the Union Address last night, President Bush made a similar call, asking Congress to put aside partisan politics and approve the legislation, which is set to expire Feb. 1, 2008.
Highlights from the speech include:
• “I am of the firm belief that the lawsuits facing telecom providers constitute a grave threat to national security. The potential risks from inadvertent disclosure of classified information cannot be understated.”
• “We know that they are carefully watching us and following every proceeding to see how our government collects information. If they think they see a weakness in our collection capabilities, they will certainly try and take advantage of it. Make no mistake, al Qaeda and other terrorist organizations would benefit tremendously from learning the identity of any company who assisted the government following the attacks of 9/11.”
• “I’m extremely proud of the bipartisan efforts that led to this bill. We’ve found a balance. Let’s show the confidence and resolve to vote on this issue, not back away from it.”
Hatch’s prepared remarks follow.
I’ve been to this floor on numerous occasions to aggressively support the immunity provisions in the Intelligence Bill. I cannot understate my passion for this issue. I am of the firm belief that the lawsuits facing telecom providers constitute a grave threat to national security. The potential risks from inadvertent disclosure of classified information cannot be understated. The potential damage to our intelligence sources and methods from allowing these lawsuits to go forward is substantial. Unfortunately, the more we delay this legislation, the more likely it is that our sensitive intelligence methods will be exposed—and not just exposed to the American people, but to al Qaeda and thousands of other terrorists around the world. Remember, the very point of these lawsuits is to prove plaintiffs’ claims by disclosing classified information.
Let’s think about this. Do we really want any person to be able to make accusations that are utter hearsay, and then be given the ability to jeopardize the Intelligence Community’s sources and methods by demanding discovery during frivolous litigation?
We simply can’t do this. We should never reveal our intelligence agencies’ technical capabilities, who they work with, who they target, or what their strengths and weaknesses are. The reasons why should be obvious to all of us.
Here’s an example that illustrates this point: If criminals are running drugs northbound along I-95, they may have an idea that they will encounter police checkpoints. But they need to transport the drugs, so they will balance this risk. But what if they know for sure that there is a checkpoint in a specific state? What if they then find out that the checkpoint is at a specific mile marker? Will they change their routes or methods? You’d better believe they will. They’re not stupid—and neither is al Qaeda. Does it really make sense for us to broadcast across the globe, over the Internet, how we work? Do we want to replace uncertainty of how we track terrorists with established fact?
Confirmations or denials of the allegations in the lawsuits will certainly reveal certain intelligence agencies’ sources and methods. Even when the proceedings are in camera or ex parte, this risk is still apparent. I can’t stress this point enough: The identity of any company that may or may not have cooperated with the government with the TSP is highly classified. Accusations and hearsay do not confirm any relationship. The very activities these cases seek to disclose could reveal whether a company has or hasn’t assisted the government. In addition, any verdict in the case would likely provide the same type of information. And replacing the government for these companies in the litigation does not solve the problem.
Our enemies have tough decisions to make regarding how they communicate. They can’t stay silent forever, and they have to weigh the need to communicate against the chance that their communications are intercepted. We know that they are carefully watching us and following every proceeding to see how our government collects information. If they think they see a weakness in our collection capabilities, they will certainly try and take advantage of it. Make no mistake, al Qaeda and other terrorist organizations would benefit tremendously from learning the identity of any company who assisted the government following the attacks of 9/11.
A few of my colleagues, and many in the outside media, have highlighted accusations from a former telecom employee. His name is Mark Klein. Mr. Klein claims that he has proof that computers diverted domestic electronic communications from a phone company directly to the NSA. In fact, his accusations play a major role in one the lawsuits currently facing a telecom provider.
It is important to note the government chose not to classify Klein’s declarations or exhibits in one of the lawsuits. The government could have, but they didn’t. So Klein’s court documents are public.
Due to the ongoing litigation, I do not want to speak directly to his claims. But, I will highlight a statement that was made by an official representing the government during a court proceeding in one of the lawsuits against a telecom provider. This statement was from the Assistant Attorney General on June 23, 2006, in front of Judge Vaughn Walker. Here’s what was said about the decision not to classify Klein’s declarations.
“We have not asserted a privilege over the Klein declarations or exhibits. Mr. Klein and Marcus never had access to any of the relevant classified information here, and with all respect to them, through no fault or failure of their own, they don't know anything.”
I can’t understate the importance of this quote, as it has never been mentioned during this debate. No further commentary on it is needed, but I think its meaning is extremely important when Senators and the public weigh the relevancy and reliability of Klein’s accusations. I am particularly hopeful that three of my distinguished colleagues who have highlighted Klein’s claims on this floor are aware of these previous statements from the government. I hope we all realize that these accusations highlight only one side of the story.
I also want to draw attention to a claim repeatedly made on this floor: the false declaration that the immunity provision in this bill will “close the court house door.” These claims seek to convey the false impression that the immunity provision in this bill will halt ALL litigation relating to the TSP.
This is absolutely false. There are no fewer than seven lawsuits currently pending against government officials that are related to the TSP. The immunity provision in this bill will not affect any of these cases. Let me repeat that. These cases are completely unaffected by the immunity provision in this bill. Here are the cases:
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.
Finally, it is imperative for us to understand that our national security is greatly dependent on the cooperation of telecom providers. We can’t do it by ourselves. And yet many foreign governments are in quite the opposite situation, one which gives them an advantage in certain electronic interceptions. Many foreign telecoms are run by the respective host government; many others have government officials with controlling authority. Those countries don’t have to worry about telecom cooperation, they can simply force the telecoms to comply.
We have chosen not to have that system in our great nation. Rather, we rely on the voluntary assistance of telecommunication providers. When these companies are asked to assist the Intelligence Community based on a program authorized by the President and based on assurances from the highest levels of government that the program has been determined to be lawful, they should be able to rely on those representations.
For those who argue that we need a compromise, let me be clear: we already have a compromise. The government wanted more than what is represented in this bill, and they didn’t get it. 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 immunity provisions in this bill are limited in scope. Not everyone will be happy with them, and that’s the whole point. I, for one, wanted to see more protections for companies and government officials in this bill. But I’m willing to accept the compromise, and my colleagues should be willing to do the same. We’re not all getting what we want, we’re getting what the public needs.
We have been working on legislation to modernize FISA since at least April of 2007. I’m extremely proud of the bipartisan efforts that led to this bill. We’ve found a balance. Let’s show the confidence and resolve to vote on this issue, not back away from it. I will support cloture on the Rockefeller/Bond substitute amendment, and I urge my colleagues to do the same.
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