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

On The Specter Amendment To The FISA Amendments Act Of 2008

July 8, 2008

 

I strongly oppose a blanket grant of immunity.  I also urge Senators to reject this ill-advised legislative effort to engineer a specific outcome in on-going Federal judicial proceedings.  No one should stand above the law in the United States.

 

The administration circumvented the law by conducting warrantless surveillance of Americans for more than five years.  They got caught.  The press reported this illegal conduct in late-2005.  Had the media not done so, this unlawful surveillance may still be going on today. 

 

When the public found out that the government had been spying on the American people outside of FISA for years, the Government and the providers were sued by citizens who believed that their privacy rights were violated.  That’s why we have Federal courts – so people can vindicate their rights before a fair and neutral tribunal, without interference from the other branches of government. 

 

Title II of this bill is apparently designed to terminate these lawsuits.  It seems to reduce the role of the court to a rubber stamp.  So long as the Attorney General will certify that the government requested the surveillance and indicated that it had been “determined to be lawful,” the cases are to be dismissed and everybody is off the hook.  That is not a meaningful judicial inquiry.  That doesn’t give the plaintiffs their day in court.  It is not just a heavy thumb but a whole hand and arm on the scales of justice, and I cannot support it.  

 

Here is what the report of the Select Committee on Intelligence said in connection with reporting its earlier version of retroactive immunity:

 

“The Committee has reviewed all of the relevant correspondence.  The letters were provided to electronic communications 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.”

 

So if anyone had any doubt where the criteria in the bill come from, there it is. Do those words seem familiar? Do the criteria carefully worded for inclusion in the bill now make sense? 

 

I expect that the American people remember the testimony before the Judiciary Committee of James Comey and FBI Director Mueller about the period of time when Attorney General Ashcroft was in the hospital, senior advisers at the Justice Department had advised against extending approval for the warrantless wiretapping program and

the Counsel to the President, Alberto Gonzales, went to John Ashcroft’s hospital room seeking to get Attorney General Ashcroft to override the acting Attorney General’s concerns.  Some time thereafter, the program was apparently adjusted in some way, but only after FBI Director Mueller spoke to the President and several high-ranking officers threatened to quit the administration.  That period could account for the Select Committee on Intelligence’s reference to a letter and period of less than 60 days when it was the Counsel to the President who had “determined” the activities “to be lawful.”  

 

Senator Specter has long said that he supported judicial review of the legality of the President’s warrantless wiretapping program. During the last Congress, when he chaired the Judiciary Committee, he introduced a bill that would have allowed the courts to review the legality of the administration’s warrantless surveillance program.  Unfortunately, he later modified the bill in his discussions with the White House that made it unacceptable and ineffective in my view and it was never passed.  I have always supported allowing the courts the opportunity to review the legality of those activities. 

 

I believe that independent judicial review will reject the administration’s claims to authority from the Authorization for the Use of Military Force that overrides FISA.  I believe that the President’s claim to an inherent power, a commander-in-chief override,  derived somewhere from the interstices or penumbra of the Constitution’s Article II will not prevail over the express provisions of FISA. 

 

Indeed, Chairman Rockefeller seemed to concede as much this morning  when he asserted that nothing in his bill should be taken to mean “that Congress believes that the President’s program was legal.”  He characterized the administration as having made “very strained arguments to circumvent existing law in carrying out the President’s warrantless surveillance program.”  At various points Senator Rockefeller alluded to the administration’s argument that the Authorization for the Use of Military Force was some sort of statutory override authority and the administration’s claim that the President has what Senator Rockefeller called “his all-purpose powers,” which I understand to be the administration’s argument that inherent authority from Article II of the Constitution creates a commander-in-chief override, and said that these are not justifications for having circumvented FISA. 

 

Consistent with Justice Jackson’s now well-accepted analysis in the Youngstown Sheet & Tube case, when the President seeks to act in an area in which Congress has acted and exercised its authority, the President’s power is at it “lowest ebb.” So I believe that the President’s program of warrantless wiretapping contrary to and in circumvention of FISA will not be upheld based on his claim of some overriding Article II power.  I do not believe the President is above the law. 

 

What is most revealing is that the administration has worked so feverishly to subvert any such independent judicial review.  That sends a strong signal that the administration has no confidence in its supposed legal analysis or its purported claims to legal authority.  If it were confident, the administration would not be raising all manner of technical legal defenses but would work with Congress and the courts to allow a legal test of its contentions and the legality or illegality of its actions.  

 

This amendment now offered by Senator Specter is more limited than I would have liked.  It says its purpose is to allow the courts to review the constitutionality of the assistance provided by the electronic communication services in connection with the program.  Exactly how the courts get to such a review is not clear.  Although I do not believe that this expressly allows the court to conduct the kind of comprehensive judicial review required to make a real determination about the legality of this program, and a fair decision about the merit of these lawsuits, it nevertheless seeks in spirit to provide judicial review.  In the hope that it might provide an avenue to accountability for the illegal actions of this administration, I will support it. 

 

In so doing I should note that I do not believe that Congress can take away the authority of the Federal courts to consider unconstitutionality or illegality in the course of meaningful judicial review.  Senator Rockefeller emphasized this morning that the parties to the ongoing cases are to be ensured “their day in court” and that they are “provided the opportunity to brief the legal and constitutional issues before the court.”  These statements do not have meaning unless the legal issues and constitutional issues presented by these cases can be considered.  The value of the Specter amendment lies in making the issue of constitutionality explicit.     

 

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