December 17th, 2007	Media Contact(s): Jared Whitley (801) 524-4380
HATCH DEFENDS IMMUNITY FOR TELECOM COMPANIES AGAINST LITIGATION
Washington – Sen. Orrin G. Hatch (R-Utah) delivered the following speech regarding legislative efforts to modernize the Foreign Intelligence Surveillance Act (FISA. The only Republican member of both the Senate Judiciary and Intelligence committees, Hatch is a firm proponent of the bipartisan legislation to modernize FISA that cleared the Senate Intelligence Committee by a vote of 13-2 earlier this year. Hatch's prepared remarks follow. Close inspection of the lawsuits against the telecoms reveals dubious claims. The plaintiffs have confused speculation for established facts. This is dangerous and the continuation of these lawsuits could lead to serious consequences for our national security. It’s very simple - Congress should not condone oversight through litigation. A quick scan of what plaintiffs seek in many of these cases should send a chill down our spine. They are not, as many are suggesting, simply saying: “You went along with the President’s Terrorist Surveillance Program, now give us money.” Rather, the lawsuits seize on the President’s brief comments about the existence of a limited program to go on a fishing expedition of NSA activities. But this is really worse than a fishing expedition; this is draining the Loch Ness to find a monster. Sometimes what you are looking for just doesn’t exist. The lawsuits represent irrational fears of government conspiracy, and seek to expose classified information, regardless of who is harmed in the process. We all realize that the sources and methods our intelligence community utilizes to conduct surveillance are highly classified. The risks that classified details could be revealed through these lawsuits are severe. Remember, the very point of these lawsuits is to prove plaintiffs’ claims by disclosing classified information. 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. Given this, they are carefully watching us and reading 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. Given the legitimate problems that these lawsuits pose, the Senate Intelligence Committee adopted a bill which will alleviate them. The committee worked in a bipartisan manner to craft an immunity provision that met the needs of Congress, the government, and the American people. In an overwhelmingly bipartisan tally, the committee voted to include retroactive immunity for service providers that were alleged to have cooperated with the intelligence community following 9/11. Senators from both sides of the aisle, after careful consideration, came to this conclusion. Make no mistake, this was the right conclusion. It was the right conclusion for the intelligence committee, and it should be the right conclusion for the full Senate today. Our Senate Intelligence Committee has already noted that the intelligence community cannot obtain the intelligence it needs without the assistance of these companies. It goes without saying, companies in the future will certainly be less willing to assist the government if they face the threat of extremely costly lawsuits each time they are alleged to have provided assistance. The companies will shy away. Their attorneys will scour future government requests, feverishly looking for any technicality to avoid compliance. And even if these private attorneys approve future participation, the company will have to listen to cautious stockholders, whose financial interests will undoubtedly make them adamantly opposed to situations which could lead to any financial risk or exposure. But let’s be clear: The telecoms are not threatening anyone. They are not saying “do this, or we will never help you again.” But, they don’t need to say these things for us to understand the obvious. If the financial foundations of these companies crumble due to frivolous litigation, they will rebuild it to withstand future government requests that may again lead to their collapse. Now some have asked a valid question: If the companies did not break the law, why do they need immunity? Quite simply, the government’s assertion of the state secrets privilege prevents these companies from defending themselves. This assertion by the government is absolutely essential, as the possible disclosure of classified materials from ongoing court proceedings is a grave threat to national security. Simply put, you don’t tell your enemies how you track them. This is why the NSA and other government agencies won’t say what they do, how they do it, or who they watch. Nor should they! To confirm or deny any of these activities, which are at the heart of the civil lawsuits, would harm national security. We should not discuss what our capabilities are. Given the necessity for the state secrets privilege, the drawback is that the companies being sued are forbidden from making their case. In fact, the companies can not even confirm or deny any involvement in the program whatsoever. They have no ability to defend themselves. Ordinarily, these companies would be able to address allegations and make their case. However, the classified nature of the topic means that companies are not free to do so. They can’t even have discussions with shareholders or business partners. But we need to remember, lawful silence does not equate to guilt. The identities of any company who assisted the government following the attacks of September 11th are highly classified. While there have been numerous allegations, they are nothing more than accusations. If the identities of the companies are revealed and officially confirmed through litigation, they will face irreversible harm: Harm in their business relations with foreign governments and companies, and possible physical harm to their employees both here and abroad, who are truly soft targets for attackers. My admiration and respect for the companies who did their part to defend Americans is well known. As I’ve said in the past, any company who assisted us following the attacks of 9/11 deserves a round of applause and a helping hand, not a slap in the face and a kick to the gut. When 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: “This immunity provision is not the broad and vague immunity sought by the Administration . . . The 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 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. I will continue to oppose any efforts to weaken the Rockefeller-Bond immunity provision. For nearly two months, Congress and the public have had the ability to review the immunity provisions in this bill. Today we are hearing a great deal about how the Intelligence and Judiciary Committees handled the immunity provision. So let’s look at how they voted. The Intelligence Committee rejected an amendment to strip immunity from the bill 12-3, and the Committee voted to favorably report the bill, including the immunity provision, 13-2. In addition, the Judiciary committee rejected an amendment to strike the immunity provision from the bill 12-7. What do all these votes have in common? They supported immunity, and they were bipartisan. How many times are we going to hear about alternatives to S. 2248 which simply don’t address the problem? How many trial balloons are going to be released? The first alternative we heard was that the government should indemnify the companies following possible adverse rulings in the cases. There are myriad reasons why this option was lacking. The idea of indemnification apparently wasn’t well received, as we now hear very little discussion of it. So let’s call indemnification the first trial balloon to pop. The next alternative we heard was that the government should be substituted in place of the companies being sued. But this alternative is full of problems, given that there is no way to remove the companies from the litigation. Remember, it’s their very conduct that is in question. In order to try and prove their claims, plaintiffs will continue to seek discovery, including: document requests, depositions, interrogatories, technical data, trade secrets, proprietary company information, and the list goes on. Obviously, the companies would still face many burdens of litigation. This idea has also been skeptically viewed, and the Judiciary Committee on Thursday rejected this idea in a resounding 13-5 bipartisan vote. So let’s call government substitution the second trial balloon to pop. Now we’re hearing another alternative which would dramatically expand the jurisdiction of the Foreign Intelligence Surveillance Court, and utilizes ambiguous terms like “objectively reasonable belief.” The FISC was not created to review classified programs or the conduct of private companies. This new proposed alternative would completely revise the mission of the FISC, putting them in a role they haven’t had in their nearly 30 years of existence. This judicial expansion should be the third trial balloon to pop. How long are we going to entertain inadequate alternatives that appease fringe political groups? Isn’t it time that we embrace the bipartisan compromise that puts the interests and safety of Americans over political interests? How long will it before we are willing to take that stand? I would suggest to my distinguished colleagues that today is the day we in Congress should take a stand and come together to support the bipartisan compromise in S. 2248.
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