Opening Statement Of Sen. Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee,
Executive Business Meeting
November 15, 2007

Today I will, again, attempt to focus our efforts on proposals to amend the Foreign Intelligence Surveillance Act (FISA). These are extremely important matters. We have held two hearings and a number of briefings and meetings on this issue so we can deal with these matters in an informed way.

Senator Specter and I wrote a joint letter seeking referral of this matter in accordance with Senate procedures, but our Committee’s jurisdiction is limited in time. It is set to expire this week. I tried to make that point last week, and to proceed through the amendments to Title I so that we could turn to the retroactive immunity issue in Title II this week, and provide the Senate with our best collective judgment on how best to proceed.

I was pleased with the airing of views last week, but we were unable to make real progress when Republican objections required the entire bill to be held over and considered this morning. We have a lot of amendments that have been circulated and clearly have our work cut out for us if we are to complete the Committee’s consideration of this bill.

After my brief opening remarks and any brief opening remarks by the Ranking Member, I intend to place before the Committee the amendment to Title I of the bill, which we circulated last week, have revised and re-circulated again yesterday after consulting with a number of offices. I am offering the amendment on behalf of myself, Senator Feinstein, Senator Schumer, and Senator Whitehouse.

Title I deals with the new authority for surveillance of targets overseas, the role of the FISA Court in that surveillance, and protections for the privacy and liberties of Americans. I would ask that the Committee adopt this substitute amendment to Title I as a starting point, with the understanding that it would be open to amendment and that any amendments filed to Title I of the underlying bill will be considered in order as amendments to it.

At some point I would like to turn to Title II and the important issue of retroactive immunity. Senator Feingold has an amendment to strike the provisions, which I will support. Senator Specter has an amendment, and I intend to recognize him to offer it. The Specter amendment builds on the concept of substitution as an alternative to retroactive immunity. The hope is that it will incorporate a limit on the use of preemptive legal doctrines, like the state secret doctrine or sovereign immunity, so that substitution would provide a way to test the merits of the claims with the government standing in the shoes of the telecommunications carriers.

As I have said before, I have grave concerns with retroactive immunity for telecommunications carriers for their warrantless surveillance activities from 2001 through early this year, contrary to FISA and the privacy rights of Americans. A retroactive grant of immunity would do more than let the carriers off the hook. Immunity is designed to shield this Administration from any accountability for conducting surveillance outside the law. It could make it impossible for Americans whose privacy has been violated illegally to be made whole.

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