Remarks
of U.S. Senator Russ Feingold
On the Dodd-Feingold Amendment Striking Retroactive Immunity for
Telecom Companies that Allegedly Participated in the President’s
Illegal Warrantless Wiretapping Program
From
the Senate Floor
February 11, 2008
Mr. President, next I want
to turn to the amendment that Senator Dodd has offered, number 3907,
to strike the immunity provision.
Mr. President, I strongly
support Senator Dodd’s amendment to strike the immunity provision
from this bill, and I want to thank the Senator from Connecticut for
his leadership on this issue. I offered a similar amendment in the Judiciary
Committee, and I supported a similar amendment in the Intelligence Committee
when it was offered by the Senator from Florida, Senator Nelson.
Congress should not be giving
automatic, retroactive immunity to companies that allegedly cooperated
with the President’s illegal NSA wiretapping program. This provision
of the bill is both unnecessary and unjustified, and it will undermine
the rule of law.
Retroactive immunity is unnecessary
because current law already provides immunity from lawsuits for companies
that cooperate with the government’s request for assistance, as
long as they receive either a court order or a certification from the
Attorney General that no court order is needed and the request meets
all statutory requirements. Companies do not need to do their own analysis
of the court order or the certification to determine whether the government
is in fact acting lawfully. But if requests are not properly documented,
FISA instructs the telephone companies to refuse the government’s
request, and subjects them to liability if they instead decide to cooperate.
This framework, which has been in place for 30 years, protects companies
that act at the request of the government while also protecting the
privacy of Americans’ communications.
Some supporters of retroactively
expanding this immunity provision argue that the telephone companies
should not be penalized if they relied on a high-level government assurance
that the requested assistance was lawful. Mr. President, as superficially
appealing as that argument may sound, it utterly ignores the history
of FISA.
Telephone companies have
a long history of receiving requests for assistance from the government.
That’s because telephone companies have access to a wealth of
private information about Americans – information that can be
a very useful tool for law enforcement. But that very same access to
private communications means that telephone companies are in a unique
position of responsibility and public trust. And yet, before FISA, there
were basically no rules to help the phone companies resolve the tension
between the government’s requests for assistance in foreign intelligence
investigations and the companies’ responsibilities to their customers.
This legal vacuum resulted
in serious governmental abuse and overreaching. The Judiciary Committee
heard testimony about this system from Mort Halperin, a former Nixon
administration official who was himself the subject of a warrantless
wiretap and was involved in drafting FISA in the 1970s. He testified
that before FISA:
“Government communication
with the telephone company … could not have been more casual.
A designated official of the FBI called a designated official of [the
company] and passed on a phone number. Within minutes all of the calls
from that number were being routed to the local FBI field office and
monitored.”
Not surprisingly, this casual,
ad hoc system failed to protect Americans’ privacy. The abuses
that took place are well documented and quite shocking. With the willing
cooperation of the telephone companies, the FBI conducted surveillance
of peaceful anti-war protesters, journalists, steel company executives…
and even Martin Luther King Jr., an American hero whose life we recently
celebrated.
Congress decided to take
action. Based on the history of, and potential for, government abuses,
Congress decided that it was not appropriate for telephone companies
to simply assume that any government request for assistance to conduct
electronic surveillance was legal. Let me repeat that: a primary purpose
of FISA was to make clear, once and for all, that the telephone companies
should not blindly cooperate with government requests for assistance.
At the same time, however,
Congress did not want to saddle telephone companies with the responsibility
of determining whether the government’s request for assistance
was a lawful one. That approach would leave the companies in a permanent
state of legal uncertainty about their obligations.
So Congress devised a system
that would take the guesswork out of it completely. Under that system,
which is still in place today, the companies’ legal obligations
and liability depend entirely on whether the government has presented
the company with a court order or a certification stating that certain
basic requirements have been met. If the proper documentation is submitted,
the company must cooperate with the request and will be immune from
liability. If the proper documentation has not been submitted, the company
must refuse the government’s request, or be subject to possible
liability in the courts.
AT&T, which was the only
telephone company in existence at the time, was at the table when FISA
was drafted. As Mr. Halperin described it in his testimony, the company:
“received the clarity
that it sought and deserved. The rule, spelled out clearly in several
places in the legislation and well understood by all, was this: If [the
phone company] received a copy of a warrant or a certification under
the statute, it was required to cooperate. If it did not receive authorization
by means outlined in the statute, it was to refuse to cooperate and
was to be subjected to state and federal civil and criminal penalties
for unlawful acquisition of electronic communications.”
The telephone companies and
the government have been operating under this simple framework for 30
years. The companies have experienced, highly trained, and highly compensated
lawyers who know this law inside and out.
In view of this history,
it is inconceivable that any telephone companies that allegedly cooperated
with the administration’s warrantless wiretapping program did
not know what their obligations were. And it is just as implausible
that those companies believed they were entitled to simply assume the
lawfulness of a government request for assistance. This whole effort
to obtain retroactive immunity is based on an assumption that doesn’t
hold water.
And quite frankly, the claim
that any telephone company that cooperates with a government request
for assistance is simply acting out of a sense of patriotic duty doesn’t
fare much better. Just recently, we learned that telecommunications
companies have cut off wiretaps when the government failed to promptly
pay its bills. The Department of Justice’s Office of the Inspector
General released a report last month finding that, quote, “late
payments have resulted in telecommunications carriers actually disconnecting
phone lines established to deliver surveillance to the FBI, resulting
in lost evidence.” Since when does patriotic duty come with a
price tag? Evidently, assisting the government’s criminal and
intelligence investigation efforts fell somewhere below collecting a
paycheck on the companies’ list of priorities.
Mr. President, some of my
colleagues have argued that the telephone companies alleged to have
cooperated with the program had a good faith belief that their actions
were in accordance with the law. But there is an entirely separate statute,
in addition to the certification provision, that already provides telephone
companies with a precisely defined good faith defense. Under this provision,
which is found in section 2520 of title 18, if the companies rely in
good faith on a court order or other statutory or legislative authorization,
they have a complete defense to liability. This is a generous defense,
Mr. President. But as generous as it is, it is not unlimited. A court
must find that the telephone company determined, in good faith, that
there was a judicial, legislative, or statutory authorization for the
requested assistance.
Mr. President, I also want
to address the argument that retroactive immunity is necessary because
the telephone companies can’t defend themselves in court. When
I hear this argument, I can’t help thinking that this administration
has staged the perfect crime. Enlist private companies to allegedly
provide assistance in an illegal government program, then prevent any
judicial inquiry into the program by claiming a privilege – the
so-called “state secrets” privilege – that not only
shields your own actions from scrutiny, but enables the companies to
evade judicial scrutiny as well by claiming that they are defenseless.
All the administration needs to get away with it is Congress’s
blessing.
And that is exactly why immunity
is the wrong solution. Think about what we’d be doing. We’d
be saying that in matters of national security, you can break the law
with impunity because the courts can’t handle national security
materials. That is outrageous. Do we really want to create a law-free
zone for crimes that involve national security matters? If the government’s
use of the state secrets privilege is interfering with holding companies
accountable for alleged violations of the law, the solution isn’t
to shrug and give up on accountability. The solution is to address the
privilege head-on and make sure it doesn’t become a license to
evade the laws that we’ve passed.
In any event, this notion
that federal courts can’t handle national security matters is
insulting to the judges that this body has seen fit to confirm –
and it’s contrary to the facts. Mr. President, cases involving
classified information are decided routinely by the federal courts.
That’s why we have a statute, the Classified Information Procedures
Act, to govern how courts handle classified materials. Pursuant to that
statute, courts have in place procedures that have successfully protected
classified information for many years. There’s no need to create
a “classified materials” exception to our justice system.
That brings me to another
issue, Mr. President. I’ve been discussing why retroactive immunity
is unnecessary and unjustified, but it goes beyond that. Granting companies
that allegedly cooperated with an illegal program this new form of automatic,
retroactive immunity undermines the law that has been on the books for
decades – a law that was designed to prevent exactly the type
of actions that allegedly occurred here.
Remember, telephone companies
already have absolute immunity if they complied with the applicable
law. And they have an affirmative defense if they believed in good faith
that they were complying with that law. So the retroactive immunity
provision we’re debating here is necessary only if we want to
extend immunity to companies that did not comply with the applicable
law and did not even have a good faith belief that they were complying
with it. So much for the rule of law.
Even worse, granting retroactive
immunity under these circumstances will undermine any new laws that
we pass regarding government surveillance. If we want companies to follow
the law in the future, it sends a terrible message, and sets a terrible
precedent, to give them a “get out of jail free” card for
allegedly ignoring the law in the past.
I find it particularly troubling
when some of my colleagues argue that we should grant immunity in order
to encourage the telephone companies to cooperate with the government
in the future. Let’s take a close look at that argument. The telephone
companies are already legally obligated to cooperate with a court order,
and as I’ve mentioned, they already have absolute immunity for
cooperating with requests that are properly certified. So the only thing
we’d be encouraging by granting immunity here is cooperation with
requests that violate the law. Mr. President, that’s exactly the
kind of cooperation that FISA was supposed to prevent.
And let’s remember
why. These companies have access to our most private conversations,
and Americans depend on them to respect and defend the privacy of these
communications unless there is clear legal authority for sharing them.
They depend on us to make sure the companies are held accountable for
betrayals of that public trust. Instead, this immunity provision would
invite the telephone companies to betray that trust by encouraging cooperation
with illegal government programs.
Mr. President, since 9-11,
I’ve heard it said many times that what separates us from our
enemies is respect for the rule of law. Unfortunately, the rule of law
has taken it on the chin from this administration. Over and over, the
President and his advisers have claimed the right to ignore the will
of Congress if and when they see fit. And now they are claiming the
same right for any entity that assists them in that effort. It is time
for Congress to state clearly and unequivocally: “When we pass
a law, we mean what we say and we expect the law to be followed.”
That goes for the President, it goes for the Attorney General, and it
goes for the telephone companies. The rule of law is not less important
after 9-11, Mr. President. We can – and we must -- defeat al Qaeda
without breaking the law or sacrificing Americans’ basic rights.
We have a choice. The Senate
can stand up for the rule of law and let these cases go forward in the
courts. Or, we can decide to give our blessing to an administration
that broke the law, and the companies that allegedly helped it, and
we can signal that we stand ready to bail them out the next time they
decide to ignore the law. I urge my colleagues not to take that step.
Support the rule of law by voting in favor of the Dodd-Feingold amendment
3907.
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