Statement Of Senator Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee,

On Amendment To Strike Immunity From

The FISA Amendments Act Of 2007, S.2248

 

I strongly oppose the blanket grant of retroactive immunity in the Intelligence Committee bill to amend the Foreign Intelligence Surveillance Act.  This Administration violated FISA by conducting warrantless surveillance of Americans for more than five years.  They got caught, or they would probably still be doing it.  When the public found out about the President’s illegal surveillance of Americans, the Administration and the telephone companies were sued by citizens who believe their privacy and their rights were violated.  Now, the Administration is trying to get this Congress to terminate those lawsuits in order to insulate itself from accountability.  We should not allow this to happen. 

 

The Administration knows that these lawsuits may be the only way that it will ever be called to account for its flagrant disrespect for the rule of law.  In running its illegal program of warrantless surveillance, the Administration relied on legal opinions prepared in secret and shown to only a tiny group of like-minded officials who made sure they got the advice they wanted.  Jack Goldsmith, who came in briefly to head the Justice Department’s Office of Legal Counsel described the program as a “legal mess.”  This Administration does not want a court to get a chance to look at that mess.  Retroactive immunity would assure that they get their wish. 

 

Senator Rockefeller and I have been consulting since this summer to find ways to obtain access to the information that our members needed to evaluate the Administration’s arguments for immunity.  This is information that the Administration had consistently denied to the Judiciary Committee.  Indeed, Chairman Specter was prepared to proceed to subpoena information from the telephone companies in light of the Administration’s stonewalling last Congress.  Finally, Chairman Rockefeller obtained access for the Intelligence Committee just before their markup on this bill.  Eventually, I was able to obtain access to previously unavailable materials for the members of the Judiciary Committee as well.   

 

As this matter comes to the Senate, it is past time for all other Senators and members of Congress to have access to the information they need to make informed judgments about the provisions of these bills.  I say, again: that should include all Senators and appropriately cleared staff.  I urge the Administration to reverse its ill-advised course of the last several years and immediately provide full access so that we can all work together based on direct review of the documents and a common factual and legal understanding of what has gone on and what is needed. 

 

I have drawn very different conclusions than Senator Rockefeller about retroactive immunity.  I oppose granting blanket retroactive immunity.  I agree with Senator Specter and many others that blanket retroactive immunity, which would end ongoing lawsuits by legislative fiat, undermines accountability.  Senator Specter has been working diligently as the Chairman of the Judiciary Committee, and now as its ranking member, to obtain judicial review of the legality of the warrantless wiretapping of Americans from 2001 into this year.  I agree that the check and balance the judiciary provides in our constitutional democracy has an important role to play and should be protected.  Judicial review can provide a measure of accountability, and should. 

 

We hear from the Administration and some of our colleagues that we must grant immunity or the telephone companies will no longer cooperate with the government.  Senators should understand that if we do not grant retroactive immunity, telecommunications carriers will still have immunity for actions they take in the future.  If they follow the law, they have immunity.  Their cooperation in the future will be required by legal orders and they will not be subject to liability for doing what the law requires. 

 

Immunity in the future is not the issue.  The issue is retroactive immunity, what Senator Dodd likens to amnesty, for actions that were not consistent with FISA.  I believe that the rule of law is important and that protecting the rights of Americans from unlawful surveillance is important.  I do not believe that Congress can or should seek to take those rights and those claims from those already harmed.  Moreover, ending ongoing litigation would eliminate an avenue of accountability for the government’s illegal actions.  Accordingly, I appose blanket retroactive immunity. 

 

Instead, I will continue to work with Senator Specter as well as with Senators Feinstein and Whitehouse to try to craft a more effective alternative to retroactive immunity.  We are working with the legal concept of substitution to place the government in the shoes of the private defendants that acted at its behest, and to let it assume full responsibility for the illegal conduct.  I believe that requires reaching agreement that the lawsuits should be able to reach the merits and that the program will be subject to judicial review so that its legality can be determined. 

 

Again, this Administration violated FISA by conducting warrantless surveillance for more than five years.  They got caught and they got sued.  Now, the Administration’s insistence that those lawsuits be terminated by congressional action is designed to insulate itself from accountability.  Retroactive immunity would do more than let the carriers off the hook.  It would shield this Administration from any accountability for conducting surveillance outside the law.  It would stop the lawsuits that are now working their way through the courts dead in their tracks and leave Americans whose privacy has been violated illegally no chance to be made whole.  These lawsuits are perhaps the only avenue that exists for an outside review of the government’s actions.  That kind of assessment is critical if our government is to be held accountable.  That is why I do not support legislation to terminate these legal challenges and I will vote to strike it.  

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