Mr. President: I rise—once again—to voice my strong opposition to the misguided FISA legislation before us today. I have strong reservations about the so-called improvements made to Title I. But more than that, this legislation includes provisions which would grant retroactive immunity to telecommunications companies that apparently have violated the privacy and the trust of millions of Americans by participating in the president’s warrantless wiretapping program. If we pass this legislation, the Senate will ratify a domestic spying regime that has already concentrated far too much unaccountable power in the president’s hands and will place the telecommunications companies above the law.
I am here today to implore my colleagues to vote against cloture in the morning.
And let me make clear, at the outset of this debate, that this is not about domestic surveillance itself. We all recognize the importance of domestic surveillance – in an age of unprecedented threats. This is about illegal, unwarranted, unchecked domestic surveillance.
And that difference—the difference between surveillance that is lawful, warranted and that which is not—is everything.
Mr. President, I had hoped I would not have to return to this floor again under these circumstances – hoped that in these negotiations we would have been able to turn aside retroactive immunity on the grounds that it is bad policy and sets a terrible precedent.
As all of my colleagues know, I have long fought against retroactive immunity, because I believe, quite simply, it is an abandonment of the rule of law. I’ve fought this with everything I had in me—and I haven’t waged this fight alone.
In December, I opposed retroactive immunity on the Senate floor. I spent ten hours on this floor then. In January and February, I came to the floor time and time again to discuss the dangers of granting retroactive immunity. Along with my colleague and friend Russ Feingold, who has shown remarkable leadership on this issue, I offered an amendment that would have stripped retroactive immunity from the Senate bill. Unfortunately, our amendment failed and to my extreme disappointment, the Senate adopted the underlying bill.
Since passage of the Senate bill, there has been extensive negotiations on how to move forward. Today, we are being asked to pass the so-called compromise that was reached by some of our colleagues and approved by the House of Representatives.
I am here today to say that I will not and cannot support this legislation. It goes against everything I have stood for – everything this body ought to stand for.
There is no question some improvements have been made over the previous versions of this bill. Title I, which regulates the ability of the government to conduct electronic surveillance, has indeed been improved. Albeit modestly. In fact, it is my hope that a new Congress and a new President will work together to fix the problems with Title I should the Senate adopt this new legislation.
But in no way is this compromise acceptable, Mr. President. This legislation before us purports to give the courts more of a role in determining the legality of the telecommunications companies actions. But in my view the Title II provisions do little more than ensure without a doubt that the telecommunications companies will be granted retroactive immunity.
Allow me to quote the Senate Intelligence Committee report on the matter. It reads:
Beginning soon after September 11, 2001, the Executive branch provided written requests or directives to U.S. electronic communication service providers to obtain their assistance with communications intelligence activities that had been authorized by the President.
… The letters were provided to electronic communication service providers at regular intervals. All of the letters stated that the activities had been authorized by the President. All of the letters also stated that the activities had been determined to be lawful by the Attorney General, except for one letter that covered a period of less than sixty days. That letter, which like all the others stated that the activities had been authorized by the President, stated that the activities had been determined to be lawful by the Counsel to the President.
Under the legislation before us, the district court would simply decide whether or not the telecommunication companies received documentation stating that the President authorized the program and that there had been some sort of determination that it was legal.
But, as the Intelligence Committee has already made clear, we already KNOW that this happened.
We already KNOW that the companies received some form of documentation, with some sort of legal determination.
But that’s not the question. The question is not whether these companies received a “document” from the White House. The question is, “were their actions legal?” It’s rather straightforward—surprisingly uncomplicated.
Either the companies were presented with a warrant, or they weren’t. Either the companies and the President acted outside of the rule of law, or they followed it. Either the underlying program was legal or it wasn’t.
Because of this legislation, none of the questions will be answered, Mr. President. Because of this so-called “compromise,” the judge’s hands will be tied, and the outcome of these cases will be predetermined. Because of this compromise, retroactive immunity will be granted and that, as they say, will be that. Case closed.
No court will rule on the legality of the telecommunications companies activities in participating in the president’s warrantless wiretapping program.
None of our fellow Americans will have their day in court.
What they will have is a government that has sanctioned lawlessness.
Well, I refuse to accept that, Mr. President. I refuse to accept the argument that because this situation is just too delicate, too complicated, that this body is simply going to go ahead and sanction lawlessness.
We are better than that.
And if I have needed any reminder of that fact, simply look to all those who have joined this fight – my colleagues and the many, many Americans who have given me strength for this fight. Strength that comes from the passion and eloquence of citizens who don’t have to be involved, but choose to be nonetheless.
They see what I see in this debate – that by short-circuiting the judicial process we are sending a dangerous signal to future generations. They see us establishing a precedent that Congress can—and will—provide immunity to potential law breakers, if they are “important” enough.
Mr. President, some may be asking – why is retroactive immunity so dangerous?
What is this issue? Why should I care?
Allow me to explain by providing a bit of context. I want to remind my colleagues of what I said about this bill months ago, because the argument against providing retroactive immunity remains unchanged.
Mr. President, unwarranted domestic spying didn’t happen in a panic or short-term emergency, not for a week, or a month, or even a year. If it had, I might not be here today.
But that isn’t the case. What we now know is that spying by this Administration went on, relentlessly, for more than five years.
I might not be here if it had been the first offense of a new administration. Maybe not if it had even been the second or the third.
But that isn’t the case either, Mr. President. Indeed, I am here today because with offense after another after another, I believe it is long past time to say: “enough.”
I am here today because of a pattern—a pattern of abuse against civil liberties and the rule of law. Against the Constitution—of which we are custodians, temporary though that status may be.
And I would add that had these abuses been committed by a president of my own party, I would have opposed them, every bit as vigorously.
I am here today because warrantless wiretapping is merely the latest link in a long chain of abuses.
So, why are we here? Because, Mr. President – it is alleged that giant telecom corporations worked with our government to compile Americans’ private, domestic communications records into a database of enormous scale and scope.
Secretly and without a warrant, those corporations are alleged to have spied on their own customers – American customers.
Here’s only one of the most egregious examples. According to the Electronic Frontier Foundation:
Clear, first-hand whistleblower documentary evidence [states]…that for year on end every e-mail, every text message, and every phone call carried over the massive fiber-optic links of sixteen separate companies routed through AT&T’s Internet hub in San Francisco—hundreds of millions of private, domestic communications—have been…copied in their entirety by AT&T and knowingly diverted wholesale by means of multiple “splitters” into a secret room controlled exclusively by the NSA.
The phone calls and internet traffic of millions of Americans, diverted into a secret room controlled by the National Security Agency. That allegation still needs to be proven in a court of law. But it clearly needs to be determined in a court of law and not here in Senate.
I suppose if you only see cables and computers there, the whole thing seems almost harmless. Certainly nothing to get worked up about—a routine security sweep, and a routine piece of legislation blessing it.
If that’s all you imagine happened in the NSA’s secret room, I imagine you’ll vote for immunity.
I imagine you wouldn’t see much harm in voting to allow this practice to continue either.
But if you see a vast dragnet for millions of Americans’ private conversations, conducted by a government agency that acted without a warrant, acted outside of the rule of law—then, I believe, you’ll recognize what’s at stake here. You’ll see that what’s at stake is the sanctity of the law and the sanctity of our privacy. And you’ll probably come to a very different conclusion.
Maybe that sounds overdramatic. Perhaps some will ask, “What does it matter, at the end of the day, if a few corporations aren’t sued? These people sue each other all the time.”
Others may say, “This seems a small issue. Maybe the Administration went too far, but this seems like an isolated case.”
Indeed, Mr. President – as long as this case seems isolated and technical, they win. As long as it’s about another lawsuit buried in our legal system and nothing more, they win. The Administration is counting on the American people to see nothing bigger than that – “Nothing to see here.”
But there is plenty to see here, Mr. President – and it is so much more than a few phonecalls, a few companies, a few lawsuits.
What is at stake is nothing less than equal justice—justice that makes no exceptions. What is at stake is an open debate on security and liberty, and an end to warrantless, groundless spying.
This bill does not say, “Trust the American people; Trust the courts and judges and juries to come to just decisions.” Retroactive immunity sends a message that is crystal clear:
And that message comes straight from the mouth of this President. “Trust me.”
What is the basis for that trust? Classified documents, we are told, that prove the case for retroactive immunity beyond a shadow of a doubt.
But we’re not allowed to see them! I’ve served in this body for 27 years, and I’m not allowed to see them! Neither are a majority of my colleagues. We are all left in the dark.
I cannot speak for my colleagues—but I would never take “trust me” for an answer, not even in the best of times. Not even from a President on Mount Rushmore.
I can’t put it better than this:
“Trust me” government is government that asks that we concentrate our hopes and dreams on one man; that we trust him to do what’s best for us. My view of government places trust not in one person or one party, but in those values that transcend persons and parties.
Those words were not spoken by someone who took our nation’s security lightly, Mr. President. They were spoken by Ronald Reagan -- in 1980. They are every bit as true today, even if times of threat and fear blur our concept of transcendent values. Even if those who would exploit those times urge us to save our skins at any cost.
But again, Mr. President:
“Why should I care?”
The rule of law has rarely been in such a fragile state. Rarely has it seemed less compelling. What, after all, does the law give us anyway? It has no parades, no slogans. It lives in books and precedents. And, we are never failed to be reminded, the world is a very dangerous place.
Indeed, that is precisely the advantage seized upon, not just by this Administration but in all times, by those looking to disregard the rule of law. As James Madison, the father of our Constitution, said more than two centuries ago, “It is a universal truth that the loss of liberty at home is to be charged to the provisions against danger…from abroad.”
With the passage of this bill, his words would be one step closer to coming true. So it has never been more essential that we lend our voices to the law, and speak on its behalf.
What is this about, Mr. President?
It’s about answering the fundamental question: do we support the rule of law…or the rule of men? To me, this is our defining question—indeed it may be the defining question that confronts every generation.
This is about far more than a few telecoms – it is about contempt for the law, large and small.
Mr. President, I’ve said that warrantless wiretapping is but the latest link in a long chain of abuses when it comes to the rule of law.
This is about the Justice Department turning our nation’s highest law enforcement offices into patronage plums, and turning the impartial work of indictments and trials into the pernicious machinations of politics.
Contempt for the rule of law.
This is about Alberto Gonzales, the nation’s now-departed Attorney General, coming before Congress to give us testimony that was at best, wrong—and at worst, outright perjury.
Contempt for the rule of law – by the nation’s foremost enforcer of the law.
This is about Congress handing the president the power to designate any individual he wants as an “unlawful enemy combatant,” hold him indefinitely, and take away his right to habeas corpus—the 700-year-old right to challenge your detention.
If you think that the Military Commissions Act struck at the heart of the Constitution, you’d be understating things—it did a pretty good job on the Magna Carta while it was at it.
And if you think that this only threatens a few of us, you should understand that the writ of habeas corpus belongs to all of us—it allows anyone to challenge their detention.
Rolling back habeas rights endangers us all: Without a day in court, how can you prove that you’re entitled to a trial? How can you prove that you are innocent? In fact, without a day in court, how can you let anyone know that you have been detained at all?
Thankfully, the Supreme Court recently rebuked the President’s lawlessness and ruled that detainees do indeed have the right to challenge their detention.
Mr. President, the Military Commissions Act also gave President Bush the power some say he wanted most of all: the power to get information out of suspected terrorists—by virtually any means.
The power to use evidence gained from torture.
I don’t think you can hold the rule of law in any greater contempt than sanctioning torture, Mr. President.
Because of decisions made at the highest levels of our government, America is making itself known to the world for torture, with stories like this one:
A prisoner at Guantanamo—to take one example out of hundreds— was deprived of sleep over fifty five days, a month and three weeks. Some nights, he was doused with water or blasted with air conditioning. And after week after week of this delirious, shivering wakefulness, on the verge of death from hypothermia, doctors strapped him to a chair—doctors, healers who took the Hippocratic Oath to “do no harm”—pumped him full of three bags of medical saline, brought him back from death—and sent him back to his interrogators.
To the generation coming of age around the world in this decade, that is America. Not Normandy, not the Marshall Plan, not Nuremberg. But Guantanamo.
Think about it.
We have legal analysts so vaguely defining torture, so willfully blurring the lines during interrogations that we have CIA counterterrorism lawyers saying things like, “if the detainee dies, you’re doing it wrong.”
We have the CIA destroying tapes containing the evidence of harsh interrogations—about the Administration covering its tracks in a way more suited to a banana republic than to the home of freedom.
We have this Administration actually defending waterboarding, a technique invented by the Spanish Inquisition, perfected by the Khmer Rouge, and in between, banned—originally banned for excessive cruelty—by the Gestapo!
Still, some say, “waterboarding’s not torture.”
Listen to the words of Malcolm Nance, a 26-year expert in intelligence and counter-terrorism, a combat veteran, and former Chief of Training at the US Navy Survival, Evasion, Resistance and Escape School. While training American soldiers to resist interrogation, he writes,
I have personally led, witnessed and supervised waterboarding of hundreds of people….Unless you have been strapped down to the board, have endured the agonizing feeling of the water overpowering your gag reflex, and then feel your throat open and allow pint after pint of water to involuntarily fill your lungs, you will not know the meaning of the word….
It does not simulate drowning, as the lungs are actually filling with water. The victim is drowning. How much the victim is to drown depends on the desired result…and the obstinacy of the subject.
Waterboarding is slow motion suffocation…usually the person goes into hysterics on the board….When done right it is controlled death.
Controlled death, Mr. President.
And that is not torture?
Not according to President Bush’s White House. They have said waterboarding is legal, and that, if it chooses, America will waterboard again.
Surely then, Mr. President, our new Attorney General would condemn torture.
Surely, the nation’s highest law enforcement officer in the land, coming after Alberto Gonzales’s chaotic tenure, would never come before Congress and defend the president’s power to openly break the law.
He would, Mr. President.
When he came to the Senate before his confirmation, Michael Mukasey was asked a simple question, bluntly and plainly: “Is waterboarding constitutional?”
He replied: “If waterboarding is torture, torture is not constitutional.”
One would hope for a little more insight from someone so famously well-versed in national security law. But Mr. Mukasey pressed on with the obstinacy of a witness pleading the fifth: “If it’s torture….If it amounts to torture, it is not constitutional.”
And that is the best this noted jurist, this legal scholar, this longtime judge, a supposed expert on national security law had to offer on the defining moral issue of this presidency. Claims of ignorance. Word games.
Now-Attorney General Mukasey was asked the easiest question we have in a democracy: Can the president openly break the law? Can he—as we know he’s done already—order warrantless wiretapping, ignore the will of Congress, and then hide behind nebulous powers he claims to find in the Constitution?
His response: The president has “the authority to defend the country.”
And in one swoop, the Attorney General conceded to the president nearly unlimited power, just as long as he finds a lawyer willing to stuff his actions into the boundless rubric of “defending the country.” Unlimited power to defend the country, to protect us as one man sees fit, even if that means listening to our phone calls without a warrant, even if that means holding some of us indefinitely.
That is, Mr. President, contempt for the rule of law.
And so, this is very much about torture – about “enhanced interrogation methods” and waterboarding.
It is also about extraordinary rendition—outsourced torture of men this administration would prefer we didn’t know exist.
Oh, but we do know, Mr. President.
One was a Syrian immigrant raising his family in Canada as a citizen. He wrote computer code for a company called MathWorks and was planning to start his own tech business. On a trip through New York’s JFK Airport, he was arrested by U.S. federal agents. They shackled him and bundled him onto a private CIA plane, which flew him across the Atlantic Ocean to Syria.
This man spent the next 10 months and 10 days in a Syrian prison. His cell was three feet wide—the size of a grave. Some 300 days passed alone in that cell, with a bowl for his toilet and another bowl for his water, and the door only opened so he could go wash himself once a week—though it may have been more or less, because the cell was dark and he lost track of time.
The door only opened for one other reason: for interrogators who asked him, again and again, about al-Qaeda. Here’s how it was described:
The interrogator said, “Do you know what this is?” I said, “Yes, it’s a cable,” and he told me, “Open your right hand.” I opened my right hand, and he hit me like crazy. It was so painful, and of course I started crying, and then he told me to open my left hand, and I opened it, and he missed, then hit my wrist. And then he asked me questions. If he does not think you are telling the truth, then he hits again.
The jail and the torturers were Syrian, but America sent this man there with full knowledge of what would happen to him—because it was part of the longstanding secret program of “extraordinary rendition.” America was convinced that he was a terrorist and wanted the truth beaten out of him.
No charges were ever filed against him. His adopted nation’s government—Canada, one of our strongest NATO allies—cleared him of all wrongdoing after a year-long official investigation, and awarded him more than $10 million in government compensation for his immense pain and suffering. But not before he was tortured for 10 months in a cell the size of a grave. Did his torture make us safer? Did his suffering improve our security?
I would note Mr. President, that our own government has shamefully refused even to acknowledge that his case exists.
We know about a German citizen as well, living in the city of Ulm with his wife and four children. On a bus trip through Eastern Europe, he was pulled off at a border crossing by armed guards and held for three weeks in a hotel room, where he was beaten regularly. At the end of three weeks, he was drugged and shipped on a cargo plane to Kabul, Afghanistan.
For five months, he was held in the Salt Pit—a secret American prison staffed by Afghan guards. All he had to drink was stagnant water from a filthy bottle. Again and again, masked men interrogated him about al-Qaeda, and finally, he says, they raped him.
He was released in May of 2004. Scientific testing confirmed his story of malnourishment, and the Chancellor of Germany publicly acknowledged that he was wrongly held. What was his crime? Having the same name as a suspected terrorist. Again, our own government has shamefully refused to even acknowledge that his case exists.
And so, we do know, Mr. President. We know because there aren’t enough words in the world to cover the facts.
If you’d like to define torture out of existence, be my guest.
If you’d rather use a Washington euphemism—“tough questioning,” “enhanced interrogation”—feel free. Feel free to talk about “fraternity hazing,” like Rush Limbaugh did, or to use a favorite term of Vice President Cheney’s, “a dunk in the water.” You can call it whatever you’d like.
But when you’re through, the facts will still be waiting for you. Controlled death. Outsourced torture. Secret prisons. Month-long sleep deprivations. The president’s personal power to hold whomever he likes for as long as he’d like. It is as if we woke up in the middle of some Kafka-esque nightmare.
Have I gone wildly off-topic, Mr. President? Have I brought up a dozen unrelated issues?
I wish I had, Mr. President. I wish that none of these stories were true.
But, we are deceiving ourselves when we talk about the U.S. attorneys issue, the habeas issue, the torture issue, the rendition issue, or the secrecy issue as if each were an isolated case! As if each one were an accident! When we speak of them as isolated, we are keeping our politics cripplingly small; and as long as we keep this small, the rule of men is winning.
There is only one issue here. Only one: the law issue.
Does the president serve the law, or does the law serve the president? Each insult to our Constitution comes from the same source; each springs from the same mindset; and if we attack this contempt for the law at any point, we will wound it at all points.
That is why I’m here today: Retroactive immunity is on the table today; but also at issue is the entire ideology that justifies it, the same ideology that defends torture and executive lawlessness. Immunity is a disgrace in itself, but it is far worse in what it represents. It tells us that some believe in the courts only so long as their verdict goes their way. That some only believe in the rule of law, so long as exceptions are made at their desire. It puts secrecy above sunshine and fiat above law.
Did the telecoms break the law? That, I don’t know.
But pass immunity…and we will never know. A handful of favored corporations will remain unchallenged. Their arguments will never be heard in a court of law. The truth behind this unprecedented domestic spying will never see light. And the cases will be closed forever.
“Law” is a word we barely hear from the supporters of immunity. They offer neither a deliberation about America’s difficult choices in the age of terrorism, nor a shared attempt to set for our times the excruciating balance between security and liberty. They merely promise a false debate on a false choice: security or liberty, but never, ever both.
I think differently. I think that America’s founding truth is unambiguous: security and liberty, one and inseparable, and never one without the other--no matter how difficult a situation, no matter what threats we face.
Secure in that truth, I offer a challenge to immunity’s supporters: You want to put a handful of corporations above the law. Could you please explain how your immunity makes any one of us any safer at all?
The truth is that a working balance between security and liberty has already been struck! In fact, it has been settled for decades. For thirty years, FISA has prevented executive lawbreaking and protected Americans, and that balance stands today.
In the wake of the Watergate scandal, the Senate convened the Church Committee, a panel of distinguished members determined to investigate executive abuses of power. And unsurprisingly, they found that when Congress and the courts substitute “trust me” for real oversight, massive lawbreaking can result.
They found evidence of U.S. Army spying on the civilian population, federal dossiers on citizens’ political activities, a CIA and FBI program that had opened hundreds of thousands of Americans’ letters without warning or warrant. In sum, Americans had sustained a severe blow to their Fourth Amendment rights “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”
But at the same time, the senators of the Church Committee understood that surveillance needed to go forward to protect the American people. Surveillance itself was not the problem; unchecked, unregulated, unwarranted surveillance was. What surveillance needed, in a word, was legitimacy.
And in America, as the Founders understood, power becomes legitimate when it is shared, when Congress and the courts check that attitude which so often crops up in the executive branch—“if the president does it, it’s not illegal.”
The Church Committee’s final report, “Intelligence Activities and the Rights of Americans,” put the case powerfully:
The critical question before the Committee was to determine how the fundamental liberties of the people can be maintained in the course of the Government’s effort to protect their security.
The delicate balance between these basic goals of our system of government is often difficult to strike, but it can, and must, be achieved.
We reject the view that the traditional American principles of justice and fair play have no place in our struggle against the enemies of freedom. Moreover, our investigation has established that the targets of intelligence activity have ranged far beyond persons who could properly be characterized as enemies of freedom….
We have seen segments of our Government, in their attitudes and action, adopt tactics unworthy of a democracy, and occasionally reminiscent of the tactics of totalitarian regimes.
We have seen a consistent pattern in which programs initiated with limited goals, such as preventing criminal violence or identifying foreign spies, were expanded to what witnesses characterized as “vacuum cleaners,” sweeping in information about lawful activities of American citizens.
The senators concluded: “Unless new and tighter controls are established by legislation, domestic intelligence activities threaten to undermine our democratic society and fundamentally alter its nature.”
What a strange echo we hear in those words! They could have been written yesterday. Three decades ago, our predecessors in this chamber understood that when domestic spying goes too far, it threatens to kill just what it promises to protect—an America secure in its liberty. That lesson was crystal-clear 30 years ago. Why is it so clouded now?
And before we entertain the argument that “everything has changed” since those words were written, remember: The men who wrote them had witnessed world war and Cold War, had seen Nazi and Soviet spying, and were living every day under the cloud of nuclear holocaust.
I’ll ask this, Mr. President: Who will chair the commission investigating the secrets of warrantless spying, years from today? Will it be a young senator in this body today? Will it be someone not yet elected? What will that senator say when he or she comes to our actions, reads in the records how we let outrage after outrage after outrage slide, with nothing more than a promise to stop the next one? I imagine that senator will ask of us, “Why didn’t they do anything? Why didn’t they fight back? In June 2008, when no one could doubt anymore what the administration was doing—why did they sit on their hands?”
Since the time of the Church Commission, Mr. President, the threats facing us have multiplied and grown in complexity, but the lesson has been immutable:
Warrantless spying threatens to undermine our democratic society, unless legislation brings it under control. In other words, the power to invade privacy must be used sparingly, guarded jealously, and shared equally between the branches of government.
Or the case can be made pragmatically. As my friend Harold Koh, the Dean of Yale Law School, recently argued, “The engagement of all three branches tends to yield not just more thoughtful law, but a more broadly supported public policy.”
Three decades ago, Congress embodied that solution in the Foreign Intelligence Surveillance Act, or FISA.
FISA confirmed the president’s power to conduct surveillance of international conversations involving anyone in the United States, provided that the federal FISA court issued a warrant—ensuring that wiretapping was aimed at safeguarding our security, and nothing else.
The president’s own Director of National Intelligence, Mike McConnell, explained the rationale in an interview last summer: The United States “did not want to allow [the intelligence community] to conduct…electronic surveillance of Americans for foreign intelligence unless you had a warrant, so that was required.”
As originally written in 1978, and as amended many times since, FISA has accomplished its mission; it has been a valuable tool for conducting surveillance of terrorists and those who would harm America.
And every time presidents have come to Congress openly to ask for more leeway under FISA, Congress has worked with them; Congress has negotiated; and together, Congress and the president have struck a balance that safeguards America while doing its utmost to protect privacy.
Last summer, Congress made a technical correction to FISA, enabling the president to wiretap, without a warrant, conversations between two foreign targets, even if those conversations are routed through American computers. For other reasons, I felt that this past summer’s legislation went too far, and I opposed it. But the point is that Congress once again proved its willingness to work with the president on FISA.
Isn’t that enough?
Just this past October and November, the Senate Intelligence and Judiciary Committees worked with the president to further refine FISA and ensure that, in a true emergency, the FISA court would do nothing to slow down intelligence gathering.
Isn’t that enough?
And as for the FISA court? Between 1978 and 2004, according to the Washington Post, the FISA court approved 18,748 warrants—and rejected five.
The FISA court has sided with the executive ninety nine point nine percent of the time.
Isn’t that enough?
Is anything lacking? Have we forgotten something? Isn’t all of this enough to keep us safe?
We all know the answer we received. This complex, fine-tuned machinery, crafted over three decades by three branches of government, four presidents, and 12 Congresses was ignored. It was a system primed to bless nearly any eavesdropping a president could conceive—and spying still happened illegally.
If the shock of that decision has yet to sink in, think of it this way: President Bush ignored not just a federal court, but a secret federal court; not just a secret federal court, but a secret federal court prepared to sign off on his actions ninety nine point nine percent of the time. A more compliant court has never been conceived.
And that still wasn’t good enough.
So I will ask the Senate candidly, and candidly it already knows the answer:
Is this about security—or is it about power?
Why are some fighting so hard for retroactive immunity? The answer, I believe, is that immunity means secrecy, and secrecy means power.
It’s no coincidence that the man who proclaimed “if the president does it, it’s not illegal”—Richard Nixon—was the same man who raised executive secrecy to an art form.
The senators of the Church Committee expressed succinctly the deep flaw in the Nixonian executive: “Abuse thrives on secrecy.” And, in the exhaustive catalogue of their report, they proved it.
In this push for immunity, secrecy is at the center. We find proof in immunity’s original version: a proposal to protect not just the telecoms, but everyone involved in the wiretapping program.
In their original proposal, that is, they wanted to immunize themselves.
Think about that. It speaks to their fear and, perhaps, their guilt: their guilt that they had broken the law, and their fear that in the years to come, they would be found liable or convicted.
They knew better than anyone else what they had done—they must have had good reason to be afraid.
Thankfully, immunity for the executive is not part of the bill before us. But the original proposal tells us something very important: This is, and always has been, a self-preservation bill.
Otherwise, why not have the trial and get it over with? If the proponents of retroactive immunity are right, the corporations would win in a walk.
After all, in the official telling, the telecoms were ordered to help the president spy without a warrant, and they patriotically complied. We’ve even heard on this floor the comparison between the telecom corporations to the men and women laying their lives on the line in Iraq.
But ignore that comparison – which, frankly, I find deeply offensive. Ignore for a moment the fact that in America we obey the laws, not the president’s orders. Ignore that not even the president has the right to scare or bully you into breaking the law, though it seems that tactic has proven surprisingly fruitful.
Ignore that the telecoms were not unanimous; one, Qwest, wanted to see the legal basis for the order, never received it, and so refused to comply.
Ignore that a judge presiding over the case ruled that “AT&T cannot seriously contend that a reasonable entity in its position could have believed that the alleged domestic dragnet was legal.”
Ignore all that: If the order the telecoms received was legally binding, they have an easy case to prove. The corporations only need to show a judge the authority and the assurances they were given, and they’ll be in and out of court in five minutes.
If the telecoms are as defensible as the president says, why doesn’t the president let them defend themselves? If the case is so easy to make, why doesn’t he let them make it?
It can’t be that he’s afraid of leaks. Our federal court system has dealt for decades with the most delicate national security matters, building up expertise in protecting classified information behind closed doors—ex parte, in camera. We can expect no less in these cases.
No intelligence sources need be compromised. No state secrets need be exposed. After litigation at both the district court and circuit court level, no state secrets have been exposed.
In fact, Federal District Court Judge Vaughn Walker, a Republican appointee, has already ruled that the issue can go to trial without putting state secrets in jeopardy.
He reasonably pointed out that the existence of the terrorist surveillance program is a hardly secret at all: “The government has [already] disclosed the general contours of the ‘terrorist surveillance program,’ which requires the assistance of a telecommunications provider.”
As the state secrets privilege is invoked to stall these high-profile cases, it’s useful to consider that privilege’s history. In fact, it was tainted at its birth by a president of my own party, Harry Truman. In 1952, he successfully invoked the new privilege to prevent public exposure of a report on a plane crash that killed three Air Force contractors.
When the report was finally declassified—some fifty years later, decades after anyone in the Truman administration was within its reach—it contained no state secrets at all.
Only facts about repeated maintenance failures that would have seriously embarrassed some important people.
And so the state secrets privilege began its career not to protect our nation—but to protect the powerful.
In his opinion, Judge Walker argued that, even when it is reasonably grounded,
the state secrets privilege [still] has its limits. While the court recognizes and respects the executive’s constitutional duty to protect the nation from threats, the court also takes seriously its constitutional duty to adjudicate the disputes that come before it. To defer to a blanket assertion of secrecy here would be to abdicate that duty, particularly because the very subject matter of this litigation has been so publicly aired.
The compromise between liberty and security remains a difficult one. But dismissing this case at the outset would sacrifice liberty for no apparent enhancement of security.
And that ought to be the epitaph of this Administration: “sacrificing liberty for no apparent enhancement of security.” Worse than selling our soul—giving it away for free!
It is equally wrong to claim that failing to grant this retroactive immunity will make the telecoms less likely to cooperate with surveillance in the future.
The truth is that, since the 1970s, FISA has compelled telecommunications companies to cooperate with surveillance, when it’s warranted—and what’s more, it immunizes them. It’s done that for more than 25 years.
So cooperation in warranted wiretapping is not at stake today, and despite claims by supporters of immunity-- never has been. Collusion in warrantless illegal wiretapping is. And the warrant makes all the difference, because it is precisely the court’s blessing that brings presidential power under the rule of law.
In sum, we know that giving the telecoms their day in court—giving the American people their day in court—would not jeopardize an ounce of our security.
And it could only expose one secret: the extent to which the rule of law has been trampled.
And that is the choice at stake today: Will the secrets of the last years remain closed in the dark? Or will they be open to the generations to come, to our successors in this chamber, so that they can prepare themselves to defend against future outrages of power and usurpations of law from future presidents, of either party?
Thirty years after the Church Committee, history repeated itself. If those who come after us are to prevent it from repeating again, they need the full truth.
And that is why we must not see these secrets go quietly into the night. I am here because the truth is no one’s private property—it belongs to every one of us, and it demands to be heard.
“State secrets,” “patriotic duty”—those, as weak as they are, are the arguments the telecoms’ advocates use when they’re feeling high-minded! When their thoughts turn baser, they make their arguments as amateur economists.
Here’s how Mike McConnell put it: “If you play out the suits at the value they’re claimed, it would bankrupt these companies. So…we have to provide liability protection to these private sector entities.”
To begin with, that’s a clear exaggeration. We are talking about some of the wealthiest, most successful companies in America. Some of them have continued to earn record profits and sign up record numbers of subscribers at the same time as this very public litigation—totally undermining the argument that these lawsuits are doing the telecoms severe “reputational damage.”
Companies of that size couldn’t be completely wiped out by anything but the most exorbitant and unlikely judgment. To assume that the telecoms would lose, and that their judges would then hand down such backbreaking penalties, is already to take several leaps.
Opponents of immunity, including myself, have stated that we would support a reasonable alternative to blanket retroactive immunity.
No one seriously wants to financially cripple our telecommunications industry. The point is to bring checks and balances back to domestic spying. Setting that precedent would hardly require a crippling judgment.
It’s much more troubling, though, that our Director of National Intelligence even bothers to speak to “liability protection for private sector entities.”
This isn’t the Secretary of Commerce we’re talking about, but the head of our nation’s intelligence efforts.
For that matter, how does that even begin to be relevant to letting this case go forward? Since when did we throw entire suits out because the defendant stood to lose too much?
It astounds me that some can speak in the same breath about national security and bottom lines. Approve immunity, and Congress will state clearly: The richer you are, the more successful you are, the more lawless you are entitled to be. A suit against you is a danger to the Republic!
And so, at the rock-bottom of its justifications, the telecoms’ advocates are essentially arguing that immunity can be bought.
The truth is exactly the opposite—and it should be obvious:
The larger the corporation, the greater the potential for abuse.
No one suggests that success should make a company suspect; companies grow large, and essential to our economy, because they are excellent at what they do. But the size and wealth open the realm of possibilities for abuse far beyond the scope of the individual.
After all, if the allegations are true, we are talking about one of the most massive violations of privacy in American history.
Should there not be some retribution or penalty?
If reasonable search and seizure means opening a drug dealer’s apartment, the telecoms’ alleged actions would be the equivalent of strip-searching everyone in the building, ransacking their bedrooms, and prying up all the floorboards.
The scale of these corporations opens unprecedented possibilites for abuse—possibilities far beyond the power of the individual.
What the telecoms have been accused of could not be done by one man or even ten.
It would be inconceivable without the size and resources of a corporate behemoth—the same size that makes Mike McConnell fear the corporations’ day in court. That’s the massive scale we’re talking about—and that massive scale is precisely why no corporation must be above the law.
On that scale, it is impossible to plead ignorance. As Judge Walker ruled, “AT&T cannot seriously contend that a reasonable entity in its position could have believed that the alleged domestic dragnet was legal.”
But the arguments of the president’s allies sink even lower. Listen to the words a House Republican leader spoke on Fox News. They are shameful: “I believe that they deserve immunity from lawsuits out there from typical trial lawyers trying to find a way to get into the pockets of American companies.”
Of course, some of the “typical greedy trial lawyers” bringing these suits actually work for a nonprofit. And the telecoms that some want to portray as pitiable little Davids actually employ hundreds of attorneys, retain the best corporate law firms, and spend multimillion-dollar legal budgets every year. But if the facts actually mattered to immunity supporters, we wouldn’t be here. For some, the pre-written narrative takes precedence far above the mere facts; and here, it is the perennial narrative of the greedy trial lawyers.
With that, some can rest content. They can conclude that we weren’t ever serious about law, or about privacy, or about checks and balances—it was about money all along.
There can no longer be any doubt: One by one, the arguments of the immunity supporters, of the telecoms’ advocates, fail. I’d like to spend a few moments reviewing, in detail, those claims and their failures.
One: Immunity supporters argue that granting immunity is a presidential prerogative.
But the fact is that this case belongs in the courts, in cases where the outcome has not been predetermined. The judiciary should be allowed to determine whether the president has exceeded his powers by obtaining from the telecoms wholesale access to the domestic communications of millions of ordinary Americans.
The courts should not simply be in the business of certifying that the companies received some form of documentation. Rather they should be allowed to evaluate the validity of the legal arguments asserted in the document. Was the request legal or not?
Remember also that the administration’s original immunity proposal protected everyone involved in the wiretapping program—not just the telecoms. In their original proposal, that is, they wanted to immunize themselves.
Thankfully, executive immunity is not part of the bill before us. But the origin of immunity tells us a great deal about what’s at stake here: self-preservation.
Two: Immunity supporters claim that only foreign communications were targeted—not Americans’ domestic calls.
But the fact is that clear, first-hand evidence, authenticated by the corporations in court, contradicts that claim. “Splitters” at AT&T’s Internet hub in San Francisco diverted into a secret room controlled by the NSA every e-mail, text message, and phone call—foreign or domestic—carried over the massive fiber-optic links of sixteen separate companies.
Three: Immunity supporters claim that a lack of immunity will make the telecoms less likely to cooperate with surveillance in the future.
But remember: Since the 1970s, FISA has compelled telecoms to cooperate with warranted surveillance, and it has immunized them. The issue today is not wiretapping—it is warrantless wiretapping. And the warrant is essential, because that is what brings the president’s power under the rule of law.
Four: Immunity supporters argue that the telecoms can’t defend themselves without exposing state secrets.
But the fact is that Federal District Court Judge Vaughn Walker has already ruled that the issue can go to trial without putting state secrets in jeopardy. He pointed out that the existence of the warrantless surveillance program is a hardly secret at all: “The government has [already] disclosed the general contours of the ‘terrorist surveillance program,’ which requires the assistance of a telecommunications provider.”
Five: Immunity supporters claim that the telecoms are already protected by common law principles.
But the fact is that common law immunities do not trump specific legal duties imposed by statute, such as the specific duties Congress has long imposed on telecoms to protect customer privacy and records. In the pending case against AT&T, the judge already has ruled unequivocally that “AT&T cannot seriously contend that a reasonable entity in its position could have believed that the alleged domestic dragnet was legal.”
Even so, the communications company defendants can and should have the opportunity to present these defenses to the courts, and the courts—not Congress preemptively—should decide whether they are sufficient.
Six: Immunity supporters claim that leaks from the trial might damage national security.
But the fact is that our federal court system, in decades of dealing with delicate national security matters, has built up the expertise it takes to secure that information, behind closed doors. If we’re still concerned about national security being threatened as a result of these cases, we can simply get the principals a security clearance.
We can be increasingly confident that these cases will not expose state secrets or intelligence sources—because, after the extensive litigation that has already taken place at both the district court and circuit court level, no sensitive information has leaked out.
Seven: Immunity supporters claim that litigation will harm the telecoms by causing them “reputational damage.”
But the fact is that there is no evidence that this litigation has reduced or will reduce the defendant companies’ bottom lines or customer base.
These companies’ reputations can only be harmed if they have done something wrong. If they have not, they have nothing to worry about.
Eight: Finally, immunity supporters claim that these lawsuits could bankrupt the telecoms.
But as we’ve seen, such huge corporations could only be wiped out by the most enormous penalties—and also the most unlikely. It takes several leaps to assume that the telecoms will lose, and then that they’ll be slapped with such huge judgments.
But on another level, immunity supporters are staking their claim on a dangerous principle—that a suit can be stopped solely on the basis of how much a defendant stands to lose.
If we accept that premise, we could conceive of a corporation so wealthy, so integral to our economy, that its riches place it outside the law altogether. And that is a deeply flawed argument.
We see, then, that none of the arguments for immunity stand. There is absolutely no reason to halt the legal process, and bar the courthouse door.
And ultimately, Mr. President, that’s all I’m asking for: a fair fight. In any other administration, it would be a humble claim: a day in court, for the companies that have been accused, and for the American citizens who have accused them. To reject immunity would mean to grab hold of the closest thread of lawlessness we have at hand, and to pull until the whole garment unravels.
But ensuring a day in court is not the same as ensuring a verdict. When that day comes, I have absolutely no investment in the verdict, either way. It may be that the federal government broke the law in asking the telecoms to spy, but that the telecoms’ response was innocent. It may be that the government was within the law, and that the telecoms broke it. Maybe both broke the law. Maybe neither did.
But just as it would be absurd for me to declare the telecoms clearly guilty, it is equally absurd to close the case in Congress, without a decision. That is what immunity does. Throughout this debate, the telecoms’ advocates have needed to show not just that they’re right—but that they’re so right, and that we’re so far beyond the pale—that we can shut down the argument right here, today.
That is a burden they have clearly not met. And they cannot expect to meet it when a large majority of the senators who will make the decision have not even seen the secret documents that are supposed to prove the case for retroactive immunity.
Mr. President, my trust is in the courts, in the cases argued openly, in the judges who preside over them, and in the juries of American citizens who decide them. They should be our pride, not our embarrassment. They deserve to do their jobs.
As complex, as diverse, as relentless as the assault on the rule of law has been, our answer to it is a simple one. Far more than any president’s lawlessness, the American way of justice remains deeply rooted in our character.
That, no president can disturb. So I am full of hope, even on this dark day. I have faith that we can unite security and justice—because we have already done it.
My father, Senator Tom Dodd, was the number two American prosecutor at the famous Nuremberg trials. And I have never, never forgotten the example he set.
As Justice Robert Jackson said in his opening statement at Nuremberg: “That four great nations, flushed with victory and stung with injury, stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason.”
Mr. President, what is the tribute that Power owes to Reason?
That America stands for a transcendent idea.
The idea that laws should rule, not men.
The idea that the Constitution does not get suspended for vengeance.
The idea that this nation should never tailor its eternal principles to the conflict of the moment, because if we did, we would be walking in the footsteps of the enemies we despised.
The tribute that Power owes to Reason is due today. I know that we can find the strength to pay it. And if we can’t? We will all have to answer for it.
There’s a famous military recruiting poster that comes to mind. A man is sitting in an easy chair with his son and daughter on his lap, in some future after the war has ended. His daughter is asking him, “Daddy, what did you do in the war?” And his face is shocked and shamed, because he knows he did nothing.
My daughters, Grace and Christina, are six and three. They are growing up in a time of two great conflicts: one between our nation and its enemies, and another, between what is best and worst in our American soul. And someday soon, I know I am going to hear that question: “What did you do?” I want, more than anything else, to give the right answer.
That question is coming for every single one of us in this body. Every single one of us will be judged by a jury from whom there’s no hiding: our sons, our daughters, our grandchildren. Someday soon, they’ll read in their textbooks the story of a great nation, one that threw down tyrants and oppressors for two centuries; one that rid the world of Nazism and Soviet communism; one that proved that great strength can serve great virtue, that right can truly make might.
And then they will read how, in the early years of the 21st century, that nation lost its way.
We do not have the power to strike that chapter. No, Mr. President—we can’t go back.
We can’t un-destroy the CIA’s interrogation tapes. We can’t un-pass the Military Commissions Act. We can’t un-speak Alberto Gonzales’s disgraceful testimony. We can’t un-torture innocent people. And perhaps, sadly, shamefully, we cannot stop retroactive immunity. We can’t un-do anything that has been done in the last six years for the cause of lawlessness and fear.
We cannot blot out that chapter. But we can begin the next one, even today. Let its first words read: “Finally, in June 2008, the Senate said: ‘Enough.’”
I implore my colleagues to write it with me. I implore my colleagues to vote against retroactive immunity and vote against cloture tomorrow morning.
|This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).|