Legislation Does Not Provide Accountability

 

WASHINGTON (Wednesday, July 9, 2008) – Sen. Patrick Leahy (D-Vt.) today delivered closing remarks in the Senate’s debate over amending the 1978 Foreign Intelligence Surveillance Act.  The Senate is expected to vote on three amendments to the pending legislation, the FISA Amendments Act of 2008, including a Leahy-sponsored amendment to strike Title II of the bill, which would provide immunity for telecommunications carriers that aided in the Bush administration’s illegal wiretapping program.  Leahy is expected to oppose the legislation if votes on the three pending amendments fail.

 

Leahy’s closing remarks as prepared follow.  For more on Leahy’s work on FISA, including audio and video of Judiciary Committee and floor statements, click here.

 

Leahy Statement on the Dodd-Feingold-Leahy Amendment to Strike Immunity

Leahy Statement on the Bingaman Amendment to the FISA Amendments Act of 2008

Leahy Statement on the Specter Amendment to the FISA Amendments Act of 2008

 

Closing Statement Of Sen. Patrick Leahy (D-Vt.),

Chairman, Senate Judiciary Committee,

On Senate Consideration Of The FISA Amendments Act Of 2008

July 9, 2008

 

As Prepared

 

The Senate has before it three amendments to bring accountability to this legislation-- the Dodd-Feingold-Leahy amendment, the Specter amendment and the Bingaman alternative.  I intend to vote in favor of each of these amendments.

 

As I noted at the outset of this debate and consistently throughout the course of Senate consideration of these matters, I oppose legislation that does not provide accountability for the six years of illegal, warrantless wiretapping initiated and approved by this administration.  The bill, if adopted without amendment, seems intended to result in the dismissal of ongoing cases against the telecommunications carriers that participated in the warrantless wiretapping program, without allowing a court ever to review whether the program itself was legal.  Thus, the bill would have the affect of ensuring that this administration is never called to answer for its actions – never held accountable in a court of law.  I do not support that result and, therefore, do not support this bill, unless amended.

 

It is now almost seven years since this President began efforts to circumvent the law.  In violation of the provisions of the governing statute, the Foreign Intelligence Surveillance Act, this President and his administration engaged in a program of warrantless wiretapping.  I have said that I believe that conduct was illegal.  In running its program of warrantless surveillance, the administration relied on ends-oriented legal opinions prepared in secret and shown only to a tiny group of like-minded officials.  This ensured the administration received the legal advice that it wanted.  A former head of the Justice Department’s Office of Legal Counsel described this program as a “legal mess.” And this administration wants to make sure no court ever reviews that legal mess.  The bill before us seems designed to ensure that they get their wish.

 

As Senator Specter and I have both confirmed during the course of this debate, the administration worked hard to ensure that Congress could not effectively review the legality of the program.  Since the existence of this program became known through the press, the Judiciary Committee repeatedly tried to obtain access to the information its members needed to evaluate the administration’s legal arguments.  Indeed, Senator Specter, when he was chairman of the Judiciary Committee, prepared subpoenas for the telecommunications carriers to obtain information, simply because the administration would not tell us directly what it had done.  But those subpoenas were never issued; Vice President Cheney intervened to undercut Senator Specter and prevent the Committee from voting on them. 

 

There are public reports that at least one telecommunications carrier refused to comply with the administration’s request to cooperate with the warrantless wiretapping.  Surely that objection raised a red flag for all involved.  It is clear that the administration did not want the Senate to evaluate the evidence and draw its own conclusions.  Again, it sought to avoid accountability. 

 

If we look at the publicly-available information about the President’s program, it becomes clear that Title II is designed to tank these lawsuits, pure and simple, and allow for the administration to avoid accountability.  The Senate Intelligence Committee said in a report last fall that the providers received letters from the Attorney General stating that the activities had been “authorized by the President” and “determined to be lawful.”  Guess what?  These are precisely the “magic” words that will retroactively immunize the providers under Title II of this bill.  So the fix is in.  The bill is rigged, based on what we already know, to ensure that the providers get immunity and the cases get dismissed.  

 

So what if Americans’ rights were violated?  So what if laws were violated?  This bill makes our Federal courts the handmaidens to a cover-up and that is wrong.  Make no mistake:  If Title II becomes law, we would take away the only viable avenue for Americans to seek redress for harms to their privacy and liberties. And there will likely be no judicial review of this administration’s illegal actions. 

 

Those who claim that American citizens can still pursue their privacy claims against the government know that sovereign immunity is a roadblock.  They know that cases against the government have been dismissed for lack of standing.  They know about the government’s ability to assert the state secrets doctrine and various other legal defenses and protections for government officials.  They know the Michigan case that held the President’s warrantless wiretapping program illegal was later vacated on appeal for lack of standing.  Indeed, for all their talk about holding the government accountable, they have chosen to do nothing to make any case against the government more viable.  This is a red herring if there ever was one.

 

Last week, a Federal judge in San Francisco ruled that FISA’s provisions trump the state secrets privilege.  But that same judge was constrained to hold that plaintiffs still must prove that they are “aggrieved” under FISA to maintain standing to sue the Government.  It is not at all clear whether these plaintiffs, or any others, can make this showing.  Absent congressional action to facilitate judgments on the merits, these cases against the Government are unlikely to survive.

 

The report of the Select Committee on Intelligence in connection with its earlier version of the bill that also included retroactive immunity is telling.  The Committee wrote:  “The Committee does not intend for this section to apply to, or in any way affect, pending or future suits against the Government as to the legality of the President’s program.”  And later wrote: “Section 202 makes no assessment about the legality of the President’s program.”  But neither that bill nor this one makes any allowance for such suits against the government to proceed to a decision on the merits.  That is precisely what is lacking in this measure -- an avenue to obtain judicial review and accountability.  Those who support retroactive immunity for the telecommunications carriers, and dismissal of the suits against them, without providing an effective avenue to challenge the program or obtain judicial review of its legality support unaccountability, pure and simple.

 

I would have supported efforts to have the Government indemnify the telecommunications carriers for any liability incurred when they acted at the behest of the Government.  I also supported alternative efforts by Senator Specter and Senator Whitehouse to substitute the Government for the defendants in these cases – the phone companies – so that the cases could proceed to a determination on the merits.   These alternatives would have allowed judicial review of the legality of the administration’s actions.  They would have provided accountability for this administration.  The bill the Senate will vote on today does not.

 

Just as Vice President Cheney is not supposed to control the Congress, the administration is not supposed to control the Federal courts.  In this democracy of co-equal branches, in which not even the President is above the law, judicial review is an important mechanism to correct the overreaching and excesses of the executive.  Since the landmark case of Marbury v. Madison, the principle of judicial review has been firmly established.  Regrettably, that principle is being sacrificed to this administration’s claim that it should be able to act with absolute impunity.

 

On the other hand, I believe a Federal court could well find that the limitations this bill, if enacted, would place on the courts’ ability to rule on the legality of this program are themselves unconstitutional.

 

Under the strictest read of the language of the bill, the cases in question will most certainly be dismissed.  Attorney General Mukasey must simply certify to the court that the “alleged” activity was the subject of a written request from the Attorney General, which indicated that the activity was authorized by the President and “determined to be lawful.”  This process gives me, and I would hope the Federal courts, pause. 

 

If the judicial review provided by the bill is intended to be meaningful, the only way for that to happen is if the courts, in fact, review the legality of the warrantless wiretapping program.  Surely, a court might find that it cannot dismiss an American’s claim of a deprivation of rights based on the mere assertion by a party in interest that it told another party that what they were doing was “determined to be lawful.”  In this setting, in fact, the current Attorney General is not certifying or representing to the court that the warrantless wiretapping program was lawful.  All the bill requires is that the Attorney General certify that the phone company acted at the behest of the administration and that the administration “indicat[ed]” that the activity was “determined to be lawful”– by somebody, at some time.

 

A court might reason that Congress could not have intended for the court to abdicate its judicial review role and become a mere rubber stamp.  The court might nevertheless engage in “meaningful” judicial review.  How else, the court might reason, is it to assure itself that the Attorney General’s certification is valid and worth affirming as a justification for closing the court house doors to Americans claiming deprivation of their constitutionally guaranteed rights?  That is the only way to provide any real meaningful judicial review. 

 

Indeed, the reasoning would go, any other reading would be an unconstitutional rule of decision.  See United States v. Klein, 13 Wall. 128 (U.S. 1872).  Congress simply does not have authority to tell the courts, a coequal branch, how it must decide a case.  So, in order not to reach that constitutional predicament, the court could interpret the statute to allow it to review the legality of the President’s warrantless wiretapping program.  

 

Another recent model for such meaningful review is that of the Court of Appeals for the District of Columbia in the Parhat v. Gates case.  There, the appellate court invalidated a Combatant Status Review Tribunal’s decision that petitioner Huzaifa Parhat, a member of a Chinese Muslim minority group called Uighurs, was properly designated as an “enemy combatant.” 

 

Under the restrictive language of the Detainee Treatment Act, the court’s review in the Parhat case was expressly limited to consideration whether the status determination of the CSRT was “consistent with the standards and procedures” specified by the Secretary of Defense for CSRTs, and whether “to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to make the determination is consistent with the Constitution and laws of the United States.”

 

The Parhat decision shows that in order to make its review meaningful, the court interpreted its role as reviewing the probity and reliability of the evidence in order to reach its conclusion on the validity CSRT’s designation of Parhat as an “enemy combatant.”  In so doing the court noted that to do otherwise would be “perilously close to suggesting that whatever the government says must be treated as true, thus rendering superfluous both the role of the Tribunal and the role that Congress assigned to this court.”  It noted that “[t]o do otherwise would require the courts to rubber-stamp the government’s charges” rather than engage in meaningful judicial review.  

 

I believe that independent judicial review would reject the administration’s claims to authority from the Authorization for the Use of Military Force to engage in warrantless wiretapping of American in violation of FISA.  I believe that the President’s claim to an inherent power, a commander-in-chief override, derived somewhere from the interstices or penumbra of the Constitution’s Article II, would not prevail over the express provisions of FISA. 

 

Indeed, Chairman Rockefeller seemed to concede as much yesterday morning when he asserted that nothing in his bill should be taken to mean “that Congress believes that the President’s program was legal.”  He characterized the administration as having made “very strained arguments to circumvent existing law in carrying out the President’s warrantless surveillance program.”  At various points, Senator Rockefeller alluded to the administration’s argument that the Authorization for the Use of Military Force was some sort of statutory override authority and the administration’s claim that the President has what Senator Rockefeller called “his all-purpose powers,” which I understand to be the administration’s argument that inherent authority from Article II of the Constitution creates a commander-in-chief override, and said that these are not justifications for having circumvented FISA. 

 

Consistent with Justice Jackson’s now well-accepted analysis in the Youngstown Sheet & Tube case, when the President seeks to act in an area in which Congress has acted and exercised its authority, the President’s power is at it “lowest ebb.” So I believe that the President’s program of warrantless wiretapping contrary to and in circumvention of FISA will not be upheld based on his claim of some overriding Article II power.  I do not believe the President is above the law. 

 

What is most revealing is that the administration has worked so feverishly to subvert any judicial review.  That sends a strong signal that the administration has no confidence in its supposed legal analysis or its purported claims to legal authority.  If it were confident, the administration would not be raising all manner of technical legal defenses but would work with Congress and the courts to allow a legal test of its contentions and of its actions.  

 

One Federal district judge in Detroit has already declared the President’s warrantless wiretapping program to have been unconstitutional.  Another in San Francisco just last week cast grave doubt on the legality of the President’s warrantless wiretapping program, finding that the exclusivity provisions in FISA left no doubt that operating outside of the statute’s framework was unlawful. 

 

I urge the courts to exercise their rightful role to ensure justice is done. 

 

As I have said, I recognize that this legislation also contains important surveillance authorities.  I support this new authority, and have worked for years to craft legislation that provides that important authority along with appropriate protections for privacy and civil liberties.  The Judiciary Committee reported such a bill last fall.  I commend House Majority Leader Hoyer and Senator Rockefeller, who negotiated this legislation, for incorporating several additional protections that bring the bill the Senate previously passed closer to the Judiciary Committee’s bill.  While I would seek even greater civil liberties protections in Title I, there is no doubt that this bill provides stronger protections than the Senate bill I previously opposed.  

 

I note, in particular, the requirement of an Inspector General review of the President’s warrantless wiretapping program.  It is a provision I offered and insisted upon when the Judiciary Committee reported its version of the FISA legislation.  I had previously sought to add this provision to the Senate Intelligence Committee’s bill.  This review will provide for a comprehensive examination of the facts of that program and should prove useful to the next President.  I believe still more protections for privacy and civil liberties are necessary, and if this bill becomes law, I will work with the next administration on additional protections. 

 

I should emphasize that while the Inspector General provision serves important purposes, its inclusion in this bill is no substitute for a legal review of the President’s warrantless wiretapping program.  Federal judges and Inspectors General perform different functions.  Inspector General reviews can be very useful for factual review of past actions, and I expect the inspectors general to undertake a probing and comprehensive review.  But Inspectors General are not well-suited to determine whether the President’s warrantless wiretapping program was legal.  In fact, this bill prevents the Inspectors General from engaging in that kind of legal review.    

 

Courts, on the other hand, are well-suited to make these kinds of legal determinations.  They do it all the time.  Federal judges make conclusions of law every day in this country based on facts found by a jury or, if the right to jury trial is waived, based on their own factual conclusions.  But this administration doesn’t want this kind of review.  It has fought for years to avoid a determination by our courts of the legality – or more precisely the illegality – of the President’s program.  If the administration gets its wish through passage of this bill, there will likely be no conclusive judgment on the lawfulness of the President’s program – ever – and no accountability.        

 

I, therefore, cannot support this legislation without amendment.  I do not believe Congress should seek to take away the only viable avenue for Americans to seek redress for harms to their privacy and liberties, and the only viable avenue of accountability for the administration’s lawlessness.  This administration violated FISA by conducting warrantless surveillance for more than five years.  They got caught.  The apparent purpose of this bill is to ensure that they will not be held to account.  That is wrong.  I will vote to support the amendments before us today to bring accountability to this legislation, but I will vote no in opposition to the effort to secure immunity for this administration’s illegal activity.
 

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