Statement Of Sen. Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee,
On Senate Consideration Of FISA Legislation
February 12, 2008
The Foreign Intelligence
Surveillance Act – FISA – is intended to protect both our national
security and the privacy and civil liberties of Americans.
This law was passed to
protect the rights of Americans after the excesses of an earlier
time. I had hoped that the Senate would act to improve the bill
reported by the Select Committee on Intelligence. It has not. I
had hoped that the Senate would incorporate improvements included in
the House-passed RESTORE Act and in the bill reported by the Senate
Judiciary Committee. It has not. I had hoped that the
administration would work with us, but it has not. Instead, having
gotten exactly the bill they want and the way they want it from the
Intelligence Committee, they have threatened a presidential veto if
any improvements are made.
I had hoped that
Republican Senators would work with us as we have worked together to
amend FISA dozens of times over the last 30 years and to update it
in more than a dozen ways since September 11, 2001. But Republicans
voted lockstep to table the Judiciary Committee improvements and
virtually lockstep against every individual amendment and
improvement. Worse, the Republican leadership has stalled action on
the measure for weeks and continues to insist it is their way or no
way. Sadly, with the acquiescence of some on this side of the
aisle, they have controlled the debate, the bill and the final
result in the Senate. Working together, we could have done better.
I look forward to working with the House to make the improvements
that are needed to this measure before I can support it.
This process has been in
large part a repeat of that which led to the so-called Protect
America Act last summer. That ill-conceived measure was rushed
through the Senate in an atmosphere of fear and intimidation just
before the August recess after the administration reneged on
agreements reached with congressional leaders. That bill was
hurriedly passed under intense, partisan pressure from the
administration. It provided sweeping new powers to the government
to engage in surveillance, without a warrant, of international calls
to and from the United States involving Americans, and it provided
no meaningful protection for the privacy and civil liberties of the
Americans who are on those calls.
The Senate should have
considered and incorporated more meaningful corrections to that
measure. Before that flawed bill passed, Senator Rockefeller and I,
and several others in the House and the Senate, had worked hard and
in good faith with the administration to craft legislation that
solved an identified problem, but also protected Americans’ privacy
and liberties. Just before the August recess, the administration
decided, instead, to ram through its version of the so-called
Protect America Act with excessive grants of government authority
and without accountability or checks and balances. After almost six
years of violating FISA through secret warrantless wiretapping
programs, that was wrong. A number of us supported the better
balanced alternative and voted against the Protect America Act as
drafted by the administration and passed by the Senate.
Because of a sunset
provision, we had a chance to revisit that matter and to correct it.
The Judiciary Committees and Intelligence Committees in the Senate
and the House have spent the past months considering changes to FISA.
In the Senate Judiciary Committee, we held open hearings and
countless briefings and meetings to consider new surveillance
legislation. We considered legislative language in a number of open
business meetings of the
Committee and reported a good bill to the Senate before last
Thanksgiving.
Instead, the bill the
Senate is poised to pass will permit the Government to review more
Americans’ communications with little in the way of meaningful court
supervision. I support surveillance targeting foreign threats, but
wanted to take care to protect Americans’ liberties. Attorney
General Mukasey said at his nomination hearing that “protecting
civil liberties, and people’s confidence that those liberties are
protected, is a part of protecting national security.” On that I
agree with him. That is what the Senate Judiciary bill would have
done.
The administration
insists on avoiding accountability by including blanket retroactive
immunity in their bill. It would grant blanket retroactive immunity
to telecommunications carriers for their warrantless surveillance
activities from 2001 through earlier this year contrary to FISA and
in violation of the privacy rights of Americans.
This administration
violated FISA by conducting warrantless surveillance for more than
five years. They got caught, and if they had not, they would
probably still be doing it. When the public found out about the
President’s illegal surveillance of Americans, the administration
and the telephone companies were sued by citizens who believe their
privacy and their rights were violated. Now, the administration is
trying to get this Congress to terminate those lawsuits in order to
insulate itself from accountability. I will not support such an end
run around accountability.
The administration knows that these lawsuits may be the only way
that it will ever be called to account for its flagrant disrespect
for the rule of law. In running its illegal program of warrantless
surveillance, the administration relied on legal opinions prepared
in secret and shown to only a tiny group of like-minded officials.
This ensured that the administration received the advice they
wanted. Jack Goldsmith, who came in briefly to head the Justice
Department’s Office of Legal Counsel described the program as a
“legal mess.” This administration does not want a court to have the
chance to look at this legal mess. Retroactive immunity would
assure that they get their wish.
The rule of law is
fundamentally important in our system, and so is protecting the
rights of Americans from unlawful surveillance. I do not believe
that Congress can or should seek to take those rights and those
claims from those already harmed. Instead, I continued to work with
Senator Specter, as well as with Senators Feinstein and Whitehouse,
to try to craft more effective alternatives to retroactive
immunity. We worked with the legal concept of substitution to place
the Government in the shoes of the private defendants that acted at
its behest and to let it assume full responsibility for the illegal
conduct. I supported Senator Feinstein’s alternative proposal
strengthening the role of the FISA Court in this regard. The
administration warded off all efforts at compromise and
accommodation. They refuse to be held accountable – to the
Congress, or to the American people.
With the Senate poised to vote on retroactive immunity, it is long
past time for all Senators to have access to the information they
need to make informed judgments about the provisions of these
bills. The Majority Leader wrote to the administration last year
urging such access. I have supported it. We have had no response –
the administration has ignored the request. It is clear that they
do not want to allow Senators or anyone else to evaluate their
lawlessness. Again, their rule is no accountability. Whether it is
Scooter Libby or anyone else, no accountability.
I have drawn very different conclusions from Senator Rockefeller
about retroactive immunity. I agree with Senator Specter and many
others that blanket retroactive immunity, which would end ongoing
lawsuits by legislative fiat, undermines accountability. Senator
Specter has been working diligently, first as the chairman of the
Judiciary Committee and now as its ranking member, to obtain
judicial review of the legality of the warrantless wiretapping of
Americans from 2001 into last year. The check and balance the
judiciary provides in our constitutional democracy has an important
role to play and should be protected. Judicial review can and
should provide a measure of accountability.
I believe that protecting the rule of law is important, and I
believe in protecting the rights of Americans from unlawful
surveillance. I do not believe that Congress can or should seek to
take those rights and those claims from those already harmed.
Moreover, ending ongoing litigation eliminates perhaps the only
viable avenue of accountability for the Government’s illegal
actions. Therefore, I say again: I
oppose retroactive immunity. There should be a measure of
accountability for the administration’s actions in the years
following 9/11.
I do not believe anybody is above the law. I do not believe a
President is, I do not believe a Senator is, I do not believe
anybody is. Keep in mind why we have FISA. Congress passed that
law only after we discovered the abuses of J. Edgar Hoover’s FBI.
Through the COINTEL Program, Hoover spied on Americans who objected
and spoke out against the war in Vietnam -- which pretty well
involved 100 percent of the Vermont delegation in Congress.
Are we so frightened by 9/11 that we are willing to throw away
everything this country fought for and everything that has made this
country great through our history? We can protect Americans’
rights, we can protect those things that our forefathers fought a
revolution to attain, that we fought a civil war to protect, that we
fought two World Wars to cement. Are we going to throw it away
because of a group of terrorists? Not this Senator.
Let us show the American people and the world what America stands
for. We can and will do all we can to secure the future, but at the
same time we can protect the cherished rights and freedoms that
define America. Those are the rights and freedoms that protected
past generations and allow us to have an American future. If we do
not protect them, what will we leave to our children and
grandchildren? Let us stand up for American values and preserve our
freedom while protecting our national security.
# # # # #
Supplemental Material
-
Judiciary Committee Report, together with supplemental views, to
accompany S. 2248, the FISA Amendments Act of 2007
-
Leahy statement on
Amendment #3907, to strike immunity (Feb. 11, 2008)
-
Leahy statement on
Amendment #3915, to limit the use of unlawfully obtained
information (Feb. 11, 2008)
-
Leahy statement on
Amendment # 3913, on reverse targeting (Feb. 11, 2008)
-
Leahy statement on
Amendment #3920, on minimization compliance review (Feb. 4,
2008)
-
Leahy statement on
Amendment #3930, to reduce the sunset from six to four years
(Feb. 4, 2008)
-
Leahy statement on
Amendment #3979, to protect the privacy of Americans’
communications (Feb. 4, 2008)
-
Leahy statement on
Amendment #3862, to require an Inspector General review
(Jan. 24, 2008)
-
Leahy statement on
Amendment #3909, on reporting requirements (Jan. 24, 2008)
-
Leahy statement on the
Judiciary Committee Amendment to the FISA Amendments Act of 2007
(Jan. 24, 2008)