Mr. Dodd: Mr. President, let me begin my remarks, I know tomorrow we are going to begin more formal debate on the FISA legislation. This is to be a continuation of the effort, for those who wonder what this is, this is the Foreign Intelligence Surveillance Act. This was the debate which was the last item of debate before the holiday break back in mid- December.
The legislation was withdrawn and was not completed. Senator Rockefeller, Senator Bond, the chairman and the ranking Republican, and members of the Intelligence Committee, Senator Leahy, Senator Specter, and members of the Judiciary Committee, Republicans and Democrats have worked on this legislation.
I wish to begin my comments by thanking them for their efforts on trying to develop a piece of legislation that would reflect the realities of today.
There has been some history of this bill. My intention this evening is to spend some time talking about a section of this bill dealing with retroactive immunity, which my colleagues and others who followed this debate know I spent some 10 hours on the floor of this body back in December expressing strong opposition to that provision of this bill; not over the general thrust of the bill.
The Foreign Intelligence Surveillance Act is critically important to our country. It provides a means by which you can have a proper warrant extended or given out by governmental authorities to collect data, information, critical to our security.
For those who know the history of this, it dates back to the 1970s as a result of the Church Committee's efforts revealing some of the egregious activities of the Nixon administration in listening in, eavesdropping, wiretapping, without any kind of court order, warrant or legal authorities.
So the Congress, working in a bipartisan fashion, I think almost unanimously adopted the Foreign Intelligence Surveillance Act in the late 1970s. Since that time, this bill has been amended I think some 30 or 40 times, maybe more, I know it has been a number of times over the years. In nearly every instance, almost unanimously amended to reflect the changes over the years and the sophistication of those who would do us harm or damage, as well as our ability to more carefully apprehend or listen in or gather information that could help us protect our Nation from those who would do us great harm.
That is a very brief history of this. We are once again at a situation to try and modernize and reflect the needs of our Nation. There is a tension that that exists between making sure we are secure and safe and simultaneously doing it in a manner in which we protect the basic rights of the American citizens.
There has been this tension throughout our history. But we are a nation grounded in rights and liberties. It is the history of our country. It is what made us unique as a people going back more than two centuries.
Over the years, we have faced very significant challenges, both at home and abroad. So we have had a need to provide for the means by which we collect data and information that would protect us, to make us aware of those who would do us harm, and yet simultaneously make sure that in the process of doing that, we do not abandon the rights and liberties we all share as Americans. The Constitution does not belong to any political party. I have said that over and over again. Certainly today, as we debate these issues involving the FISA legislation, I hope everyone understands very clearly my objections to the provisions of this bill have nothing to do whatsoever with the important efforts to make it possible for us to collect data that would keep us safe, but I feel passionately that we not allow this vehicle, this piece of legislation, to be used as a means by which we reward behavior that violated the basic liberties of American citizens by granting retroactive immunity to telecom companies that decided, for whatever reason, to agree, at the Bush administration's request, to provide literally millions of telephone conversations, e-mails, and faxes, not for a month or 6 months or a year but for 5 years, in a concerted effort contrary to the law of our land.
So that is what brings me to the floor this evening. It is what brought me to the floor of this body before the holiday recess, talking and expressing my strong opposition to those provisions of this legislation. There are other concerns I would point out about this bill that other Members will raise. Senator Feingold has strong objections to certain provisions of this legislation, others have other ideas I am confident have merit.
But I commend Senator Rockefeller and Senator Bond. They have done the best job, in many ways, of dealing with these sets of questions. But why in the world we decided we are going to grant retroactive immunity to these telephone companies is what mystifies me, concerns me deeply, because of the precedent-setting nature of it.
There are those who would argue that in order for us to be more secure, we must give up some rights, that you have to make that choice. You cannot be secure, as we would like to be, if we are unwilling to give up these rights and liberties.
I think this false dichotomy is dangerous. In fact, I think the opposite is true. In fact, if you protect these rights and liberties, that is what makes us more secure. Once you begin traveling down that slippery slope of deciding on this particular occasion we are going to walk away from these rights and these liberties, once you begin that process, it gets easier and easier to do.
In this case, we are talking about telecom companies. We are talking about communications between private citizens, e-mails, faxes, phone conversations. Why not medical information? Why not financial information? When is the next example going to come up where companies that knew better, not should have known better, knew better, in my view.
One of the companies that may have complied with the Bush administration's request, in fact, was deeply involved in the drafting of this legislation in the 1970s, in putting the FISA bill together. This was not some first year law school student who did not know the law of the land in terms of FISA, they knew the law, they understood it.
In fact, there are phone companies that refused to comply with the request of the Bush administration absent a court order. Those companies said: Give us a court order, we will comply. Absent a court order, we will not comply.
So there were companies that understood the differences when these requests were made more than 5 years ago.
So this was not a question of "everybody did it," the same argument that children bring to their parents from time to time, or "we were ordered on high," in what is known as the Nuremberg defense which asserts that there were those in higher positions who said we ought to do this. That was the defense given in 1945 at the Nuremberg trials by the 21 defendants who claimed they were only obeying orders given by Hitler. Though this situation before us is obviously enormously different, a similar argument, that the companies were ordered to do this, defies logic and the facts of this case.
With that background and the history of the FISA legislation--and there are others who will provide more detail--let me share some concerns about this particular area of the law. I will be utilizing whatever vehicles are available to me, including language I will offer to strike these provisions, to see to it that this bill does not go forward with retroactive immunity as drafted in the legislation included in the bill. I rise, in fact, in strong opposition to the retroactive immunity provisions of the Foreign Intelligence Surveillance Act as passed by the Intelligence Committee. I strongly support the Leahy substitute to the current legislation. It is my hope the Senate adopts this important measure. If it does, it will solve this particular problem. However, I am concerned that, once again, we will return to a Foreign Intelligence Surveillance Act that will grant retroactive immunity to telecom companies.
As my colleagues know, I have strongly opposed retroactive immunity for the telecommunications companies that may have violated the privacy of millions of our fellow citizens. Last month, I opposed retroactive immunity on the Senate floor for more than 10 hours. The bill was withdrawn that day, but I am concerned that tomorrow retroactive immunity will return, and I am prepared to fight it again.
Since last month, little has changed. Retroactive immunity is as dangerous to American civil liberties as it was last month, and my opposition to it is just as passionate. The last 6 years have seen the President--the Bush administration's pattern of continual abuses against civil liberties.
Again, if this were the first instance and it went on for a few months, a year, these companies acquiescing to an administration's request, an administration that had made it its business to protect the basic liberties of Americans throughout its terms in office, I would not be standing here. I am not so rigid, so doctrinaire that I am unwilling to accept that at times of emergency such as in the wake of 9/11, you might have such a request being made by an administration-- not that I think it is right, but it could happen. I would say if it did and a handful of companies for a few months or a year, even, complied with it and went forward, I wouldn't be happy about it, but I would understand it. But that is not what happened here. That is not what this administration has been involved in. From Guantanamo, from Abu Ghraib, from rendition, secret prisons, habeas corpus, torture, a scandal involving the Attorney General's Office, the U.S. attorneys offices around the country--how many examples do you need to have? How many do we have to learn about to finally understand that we have an administration regrettably that just doesn't seem to understand the importance of the rule of law, the basic rights and liberties of the American public?
My concern is that we had a pattern of behavior, almost nonstop, going on some 6 years and still apparently ongoing today. Then add that to the fact that this collection of data, this collection of information went on not for 6 months or a year but for 5 long years and would have continued, had there not been a story in the media which uncovered, through a whistleblower, that this was going on. It would still be going on today, despite the absence of any court order, or a warrant being granted by the FISA courts. There is a pattern of behavior that is going unchecked, and behavior went on for more than 5 years. That is why I stand here, because I am not going to tolerate--at least this Member is not--accepting these abuses and granting retroactive immunity. It is, once again, a walking away from this problem, inviting even more of the same in the coming days.
It is alleged, of course, that the administration worked outside the law with giant telecom corporations to compile Americans' private domestic communications--in other words, a database of enormous scale and scope. Those corporations are alleged to have spied secretly and without warrant on their own American customers.
Here is 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, 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.
Those are not my words; those are the words of the Electronic Frontier Foundation. To me, those facts speak clearly. If true, they represent an outrage against privacy, a massive betrayal of trust.
I know many see this differently. No doubt they do so in good faith. They find the telecoms' actions defensible and legally justified. To them, immunity is a fitting defense for companies that were only doing their patriotic duty. Perhaps they are right. I think otherwise, but I am willing to concede they may be right.
But the President and his supporters need to prove far more than that. I think they need to show that they are so right and that our case is so far beyond the pale that no court ever need settle the argument, that we can shut down the argument here and now. That is what this will do. It will shut down this argument, and we will never, ever know what data was collected, why, who ordered this, who was responsible, if we grant retroactive immunity.
Retroactive immunity shuts the courthouse door for good. It settles the issue with politicians, not with judges and jurist, and it puts Americans permanently in the dark on this issue. Did the telecoms break the law? I have my own strong views on this but, candidly, I don't know. That is what courts exist for. Pass immunity, and we will never know the answer to that question. The President's favorite corporations will be unchallenged. Their arguments will never be heard in a court of law. The truth behind this unprecedented domestic spying will never see the light of day. The book on our Government's actions will be closed for good and sealed and locked and handed over to safekeeping of those few whom George Bush trusts to keep a secret.
Over the next couple of days, I will do my best to explain why retroactive immunity is so dangerous and, conversely, why it is so important to President Bush. But first it would be useful to consider the history of the bill before us, as I did at the outset of my remarks, and how it fits into the history of the President's warrantless spying on Americans.
For years, President Bush allowed Americans to be spied on with no warrant, no court order, and no oversight. The origins of this bill, the FISA Amendments Act, lie in the exposure of that spying in 2005.
That year, the New York Times revealed President Bush's ongoing abuse of power. To quote from that investigation:
==Under a presidential order signed in 2002, the National Security Agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands of people inside the United States without warrants over the past 3 years.
In fact, we later learned that the President's warrantless spying was authorized as early as 2001. Disgraced former Attorney General Alberto Gonzales, in a 2006 white paper, attempted to justify that spying. His argument rested on the specious claim that in authorizing the President to go to war in Afghanistan, Congress had also somehow authorized the President to listen in on the phone calls of Americans. But many of those who voted on the original authorization of force found this claim to new Executive powers to be laughable.
Here is what former majority leader Tom Daschle wrote at the time or shortly thereafter:
==As Senate majority leader … I helped negotiate that law with the White House counsel's office over two harried days. I can state categorically that the subject of warrantless wiretaps of American citizens never came up… . I am also confident that the 98 senators who voted in favor of authorization of force against al Qaeda did not believe that they were also voting for warrantless domestic surveillance.
Such claims to expand Executive power based on the authorization for military force have since been struck down by the courts.
Recently, the administration has changed its argument, now grounding its warrantless surveillance power in the extremely nebulous authority of the President to defend the country that they find in the Constitution. Of course, that begs the question, exactly what doesn't fit in under defending the country? If we take the President at his word, we would concede to him nearly unlimited power, power that belongs in this case in the hands of our courts. Congress has worked to bring the President's surveillance program back where it belongs--under the rule of law. At the same time, we have worked to modernize FISA and ease restrictions on terrorist surveillance.
The Protect America Act, a bill attempting to respond to the two- pronged challenge--poorly, in my view--passed in August. But it is set to expire this coming February. The bill now before us would create a legal regime for surveillance under reworked and more reasonable rules.
But crucially, President Bush has demanded that this bill include full retroactive immunity for corporations complicit in domestic spying. In a speech on September 19, he stated that "it's particularly important for Congress to provide meaningful liability protection to those companies." In October, he stiffened his demand, vowing to veto any bill that did not shield the telecom corporations. And last month, he resorted to shameful, misleading scare tactics, accusing Congress of failing "to keep the American people safe." That is absolutely outrageous. An American President, at a time when there are serious threats and reliable information that the threat still persists, an American President is saying: Despite your efforts to modernize FISA by providing the additional tools we need for proper surveillance on terrorist activities, I will veto this bill, I will deny you this legislation, if you don't provide protection for a handful of corporations that violated the law. That is an incredible admission, the fact that he is willing to lose all of the efforts we are making to modernize FISA in order to grant retroactive immunity so you are not in a court of law. Who is putting the country at greater risk? That is what the debate is about. That is what the President has said. He will veto the bill if we don't provide protection for a handful of corporations that, for 5 long years, when their legal departments knew exactly what the law was--AT&T was involved in the drafting of the FISA legislation in 1978. How can that company possibly claim they didn't know what the law of the land was when it came to FISA, going before the secret FISA courts, getting those warrants to allow for the Government to go in and do the proper surveillance and grant the immunity that these companies would receive under that kind of a situation. To avoid that court altogether was wrong. For 5 long years, they did that.
Now the President says: I don't care what Jay Rockefeller or what Kit Bond or what the Intelligence Committee has done to modernize FISA. If you don't give me those protections I want for those handful of corporations, then you are not going to get this bill that modernizes the surveillance on terrorist activity.
The very same month, the FISA Amendments Act came before the Senate Select Committee on Intelligence. Per the President's demand, it included full retroactive immunity for the telecom corporations. Don't give me it, I will veto the bill. And the committee went along. Senator Nelson of Florida offered an amendment to strip that immunity and instead allow the matter to be settled in the courts. It failed on a 3- to-12 vote in committee. As it passed out of the Intelligence Committee by a vote of 13 to 2, the bill still put corporations literally above the law and assured that the President's invasion of privacy would remain a secret.
At that time, I made public my strong objections on immunity, but the bill also had to pass through the Judiciary Committee. Through an open and transparent process, the Judiciary Committee amended several provisions relating to title I and reported out a bill lacking the egregious immunity provisions. However, I am still concerned that when Senator Feingold proposed an amendment to strip immunity for good, it failed by a vote of 7 to 12 in the committee.
So here we are, facing a final decision on whether the telecommunications companies will get off the hook for good without us ever knowing anything more about it, because if you grant immunity, that is it. We will never learn anything else. The President is as intent as ever he was on making that happen. He wants immunity back in this bill at all costs, including a willingness to veto very important legislation, without the meaningful provisions of this bill that would provide this country with the kind of protection and security we ought to have. He is willing to lose all of that. He is willing to trade off all of that to give a handful of corporations immunity.
What he is truly offering is secrecy in place of openness. Fiat in place of law. And in place of the forthright argument of judicial deliberation that ought to be this country's pride, there are two simple words he offers: Trust me.
I would never take that offer, not even from a perfect President. Because in a republic, power was made to be shared; because power must be bound by firm laws, not the whims of whomever happens to sit in the Executive chair; because only two things make the difference between a President and a king--the oversight of the legislative body, and the rulings of the courts.
It is why our Founders formed this Government the way they did, with three branches of government coequally sharing the powers to govern. Each is a check on the other. That is what the Founders had been through: the absence of that.
"Trust me." Those two small words bridge the entire gap between the rule of law and the rule of men, and it is a dangerous irony that when we need the rule of law the most, the rule of men is at its most seductive.
==It is a universal truth that the loss of liberty at home is to be charged to the provisions against danger … from abroad.
Let me repeat that.
==It is a universal truth that the loss of liberty at home is to be charged to the provisions against danger … from abroad.
That is from James Madison, the father of our Constitution. He made that prediction more than two centuries ago. If we pass immunity, and put our President's word above the courts and witnesses and evidence and deliberations, we bring that prophecy a step closer to coming true.
I repeat it again:
==It is a universal truth that the loss of liberty at home is to be charged to the provisions against danger … from abroad.
James Madison.
So that is the deeper issue behind this bill. That is the source of my passion, if you will. I reject President Bush's "trust me" because I have seen what we get when we accept it.
I go back and mention just the maze, the list of egregious violations of the rule of law over the last 6 years. With that aside, were this a Democratic administration that would suggest this, I would be as passionate about it, not because I distrust them necessarily but because once we succumb to the passions or the desires of the rule of men over the rule of law, then we trade off the most important fundamental essence of who we are as a people.
We are a nation of laws and not men. How many times have we heard that? You learn that in your first week of constitutional law. You learn in your American history class as a high school student the importance of the rule of law. If we walk away from that, then, of course, we walk away from who we are as a people.
After all of that, President Bush, of course, comes to us in all innocence and begs, once again: Trust me. He means it literally. Here in the world's greatest deliberative body only a small handful of Senators know even the barest facts; only a tiny minority of us have even seen the classified documents that explain exactly what the telecoms have done, exactly what actions we are asked to make legally disappear.
I have been a Member of this body for over a quarter of a century. I am a senior member of the Foreign Relations Committee. I have no right to see this? As a Member of this body, as a senior member of the Foreign Relations Committee, I am prohibited. Only the administration can see this and one or two people here who are granted the right to actually see and understand what went on.
So we are being asked as a body to blindly grant this immunity, take this issue away entirely so no one can ever learn anything more about 5 long years of millions--millions--of Americans, with their private phone conversations, their faxes, and e-mails. Every word uttered is now being held and kept. And this administration knows it. The people in charge of it know it. And we want to find out why this happened, who ordered this, who provided this. If we grant this immunity, we will never know the answers to those questions.
So as far as the rest of us--we are flying blind. And in that state of blindness, we can only offer one kind of oversight. The President's favorite kind: the token kind. And here, in the dark, we are expected to grant President Bush's wish. Because, of course, he knows best. Does that sound familiar to any of my colleagues?
In 2002, we took the President's word and faulty intelligence on weapons of mass destruction, and we mistakenly approved what has become the disaster in Iraq.
Is history repeating itself in a small way today? Are we about to blindly legalize gravely serious crimes?
If we have learned anything--if we have learned anything at all--it must be this: Great decisions must be built on equally strong foundations of fact. Of course, we are not voting to go to war today. Today's issue is not nearly as immense, I would argue. But one thing is as huge as it was in 2002; and that is, the yawning gap between what we know and what we are asked to do.
So I stand again and oppose this immunity--wrong in itself, grievously wrong, I would add, in what it represents: contempt for debate, contempt for the courts, and contempt for the rule of law. As I did in December, I will speak against that contempt as strongly as I can.
So I will reserve further debate and discussion for tomorrow, as we go forward with this. I say this respectfully to my colleagues. I do not know if a cloture motion will be filed or not, but I hope there will be enough people who will join me.
This bill can go forward without this immunity in it. And it ought to go forward. There are some amendments that will be offered, some of which I will support. There are ideas to improve on the FISA provisions of the bill to see to it that the Foreign Intelligence Surveillance Act will do exactly what we want it to do: to allow us to get that surveillance on those who would do us harm and simultaneously make sure that basic liberties are going to be protected.
But I will do everything in my power, to the extent that any one Member of this body can, to see to it we do not go forward in the provision of this bill that grants retroactive immunity for the egregious misbehavior, to put it mildly, that went on here.
The courts may prove otherwise. I do not know. Maybe someone will prove what they did turned out to be legally correct. But we are never going to know that if we, as a body--Democrats and Republicans--walk away from the rule of law and deny the courts of this land which have the ability to do this. The argument that you cannot rely on the courts to engage in a deliberation involving information that should be held secret is wrong. We have done it on thousands of cases over the years, and we can do it here.
So I hope there will be those who will join me in saying to the President: If you want to veto this bill, go ahead. You veto it because you did not get your corporations' immunity. You explain that to the American public, why we did not have the tools available that kept America safe from those who would do us harm--because a handful of corporations decided to violate the law, in my view, and did so because the Bush administration asked them to do that. You are going to veto this bill to deny us those tools that our intelligence communities ought to have to protect American citizens at a dangerous time. You make that decision.
So when this debate continues tomorrow, I will offer some additional thoughts in support of the Leahy amendment. I will be offering my own amendment, to strike retroactive immunity, and I will be considering other amendments along the way.
If all of that fails, then I will engage in the historic rights reserved in this body for individual Members to talk for a while, to talk about the rule of law, and to talk about the importance of it. I do not think I have ever done this before. I have been here a long time, and I rarely engage in such activities. I respect those who have.
The Founders of this wonderful institution granted the rights of individual Senators to be significant, including the power of one Senator to be able to hold the floor on an important matter about which they care deeply. I care deeply about this issue. I think all of my colleagues do. I just hope they will care enough about it to see to it this bill does not go forward with the precedent-setting nature of granting immunity in this case. It is not warranted. It is not deserved. It was not a minor mistake over a brief period of time.
There is a pattern of behavior, and it went on for too long, and it would still go on if it had not been for a report done by a newspaper and a whistleblower who stood up within the phone company, who had the courage to say this was wrong, or we would still be engaged in these practices today.
I think we as a body--Democrats and Republicans--need to say to this administration, and all future administrations, that you are not going to step all over the liberties and rights of American citizens in the name of security. That is a false choice, and we are not going to tolerate that and set the precedent tonight or tomorrow by agreeing to such a grant of immunity in this bill.
Mr. President, I appreciate the patience of the Chair and yield the floor.
