Foreign Intelligence Surveillance Act -- Motion to Proceed

Floor Speech

FOREIGN INTELLIGENCE SURVEILLANCE ACT--MOTION TO PROCEED -- (Senate - December 17, 2007)

BREAK IN TRANSCRIPT

Mr. WYDEN. Mr. President, as a member of the Senate Intelligence Committee, I am aware that down at the Old Executive Office Building there are large stacks of documents, including the Justice Department legal opinions, that relate to the warrantless wiretapping program and letters from our Government to the telecommunications companies.

I have read these materials. But most Members of the Senate have been prohibited from being able to read these vital documents. I believe that a Senator who was allowed to read these materials would be astounded to see how flimsy the Government's case is on behalf of the warrantless wiretapping program.

The administration has fought tooth and nail to keep almost every Member of this body, and the entire membership of the other body, from being able to read these materials. I believe every Senator who has not read these documents ought to insist on their right to be able to read them before the Senate casts this critical vote. Having read these documents, I can say, as one Member of the Senate Intelligence Committee, that nothing in any of these opinions has convinced me that the administration's warrantless wiretapping program was legal. Now that the existence of the program has been confirmed, I can see no national security reason to keep most Members of the Senate from being able to see these materials.

As far as I can tell, these materials are being classified in order to protect the President's political security, not our national security.

The Intelligence Committee has also reviewed written correspondence sent to certain telecommunications companies by the Government. I cannot get into the details of this correspondence, but I can say I am totally unconvinced, on the basis of having read these materials, that Congress should grant total immunity to the companies.

For years, there have been a number of laws on the books, such as the Wiretap Act, the Electronic Communications Privacy Act, and, of course, the Foreign Intelligence Surveillance Act. Together, they make it very clear that participating in a warrantless wiretapping program is against Federal law.

Many of my colleagues have argued that any companies that were asked to provide assistance after September 11 should be treated leniently since that was a period of national confusion and great fear. I think this argument personally has some merit, but the bill that was reported by the Intelligence Committee would not just grant immunity for 6 months or 1 year after September 11; it would grant immunity for actions taken up to 5 years after the attack. I think that is far too long, and I am going to briefly explain why.

If a phone company was asked to participate in warrantless wiretapping in the weeks after September 11, it is understandable that executives might not have had the time to question assertions from the Government that the wiretapping was legal. But that doesn't give the executive a free pass to participate in warrantless wiretapping forever and forever. At some point over the following months and years, this phone company executive has an obligation to think about whether they are complying with the law, and as soon as they realize they have not been in compliance, they have an obligation to stop it.

In the months and years following September 11, it should have been increasingly obvious to any phone company that was participating in the program that it just might not be following the law. For starters, in the week after September 11, Congress and the President got together to revise the Foreign Intelligence Surveillance Act, including the wiretapping provisions. But the Congress did not change the sections of the statute that state warrantless wiretapping is illegal. That, in my view, should have been a huge red flag to any phone company that was participating in this program.

Next, in the summer of 2002, the Director of the NSA, General Hayden, appeared before the Intelligence Committee in open session and testified about the need to get warrants when someone was inside the United States. I am sure General Hayden would argue that he was parsing his words carefully, but at a minimum, it was clear at this point that most of the Congress and most of the American people believed warrantless wiretapping was illegal.

The President has argued that the program was authorized through his Commander in Chief authority. But in the spring of 2004, the Supreme Court issued multiple rulings clearly rejecting this idea, and the President cannot do whatever he chooses to do. These rulings also have been giant red flags for any phone company engaged in warrantless wiretapping.

Finally, as the Intelligence Committee's recent report noted, most of the letters requesting assistance stated that the Attorney General believed the program was legal. But, as our report points out, one of the letters did not even say the Attorney General had approved. I have read this letter, and I believe that once again it should have set off loud alarm bells in the ears of anybody who received it.

In my view, as the years rolled by, it became increasingly unreasonable for any phone company to accept the Government's claim that warrantless wiretapping was legal. By 2004, at the very latest, any companies involved in the program should have recognized that the President was asking them to do things that seemed to be against the law.

The former CEO of Quest has said publicly that he refused requests to participate in warrantless surveillance because he believed it violated privacy statutes. I cannot comment on the accuracy of this claim, but I hope our colleagues will stop and think about its implications.

I also encourage my colleagues to insist on their right to see the communications that were sent to the telecommunications companies. My own view is, when they read these letters, if they are given a chance to read them, these letters seriously undermine the case for blanket retroactive immunity.

The legislation that passed the Intelligence Committee would grant immunity long past the point at which it was reasonable for the phone companies to believe the Bush administration. It would even grant immunity stretching past the point at which the program became public. By the beginning of 2006, the program was public and all of the legal arguments for and against warrantless wiretapping were subject to open debate. Clearly, any companies that participated in this program in 2006 did so with full knowledge of the possible consequences.

I cannot see any reason at all why retroactive immunity should cover this time period. When the Senate Intelligence Committee voted to grant total retroactive immunity, I voted no because I believed it was necessary to take more time to study the relevant legal opinion as well as the letters that were sent to the communications companies.

I have long felt that it is possible to fight terrorism ferociously and still address the civil liberties needs of our citizens. Now that I have studied these documents, I am convinced that granting 6 years of total retroactive immunity is not justified and it is not justified in the name of striking that crucial balance between fighting terrorism aggressively and protecting the individual liberties of our citizens.

I very much want to support this essential legislation. Chairman Rockefeller is here. He has done very good work, along with the distinguished vice chairman, Senator Bond, on what I think is the central issue of this debate, and that is modernizing the FISA law to make sure that now it is possible to apprehend the communications of dangerous individuals overseas who are foreigners.

The administration came to our committee and made a very reasonable case that the statute has not kept up with the times. Under the leadership of Chairman Rockefeller and the vice chairman, Senator Bond, we went to work, and we went to work in a bipartisan way to address that concern. That was the original concern of the Bush administration, that the statute had not kept up with the times and it wasn't possible to get the communications of foreigners overseas.

Under the leadership of Chairman Rockefeller and Vice Chairman Bond, that issue was dealt with, and it was dealt with to the satisfaction of the Bush administration.

But the Bush administration wouldn't take yes for an answer. After the distinguished chairman of the committee and the vice chairman and all of us on a bipartisan basis went to work to try to address the reasonable concern of the Bush administration--that the statute had not kept up with the times--that wasn't good enough for the Bush administration. So that is when we were presented with the proposition that we had to have total retroactive immunity for the phone companies. Years after the administration had said how legal the program was, after we dealt with the administration's original concern about the surveillance statute, they came in and asked for something else--this total grant of immunity. In fact, most members of the Intelligence Committee would not even have gotten to see the documents I had seen had it not been for the fact that Chairman Rockefeller and Vice Chairman Bond insisted on our right to do so.

This is an issue of enormous importance. I am very glad our colleagues have come to the floor to take the time to go through it. I suggest that every Member of the Senate who has not had the right to see those documents at the Old Executive Office Building ought to insist on their right to see those documents before they cast this vote. I think they will be flabbergasted at how flimsy the legal analysis is to justify this program.

Mr. President, I see my colleague, the distinguished Senator from Connecticut, on his feet. If I might, I would like to make one additional point, and then I will be happy to yield to my friend.

Mr. DODD. Mr. President, on this last point: obviously we are in public session, and the last thing I want to do is have the Senator from Oregon talk about what is in these documents; he cannot do that. But I am struck by the passion with which he just spoke about those documents and the value of having Members of this body see them, particularly considering the vote we are about to cast.

If this bill is adopted with retroactive immunity, then this issue disappears; it goes away forever. There will be no court proceedings, nothing. We will never have the opportunity to know until, perhaps, some of these documents might be released decades down the road under the Freedom of Information Act.

But I am struck by the Senator's passion in arguing that if people read these documents and saw them, they would have a very difficult time supporting the provision in this bill that grants retroactive immunity. Is that the suggestion the Senator has made by those comments?

Mr. WYDEN. That is my view, and I find particularly objectionable--and the Senator from Connecticut has touched on it--you would automatically assume that every Member of this body--we know all of our colleagues; I trust all of them explicitly with respect to protecting our national security--you would think they would certainly have a right to see those documents before this vote is to be cast. That is not the case. In fact, the only reason members of the Intelligence Committee got to see them was because of the outstanding work of Chairman Rockefeller and Senator Bond, who battled for my right to see those documents.

Mr. DODD. As a senior member of the Foreign Relations Committee, I do not have the right to see these documents?

Mr. WYDEN. That is correct. That is absolutely correct.

Mr. DODD. Mr. President, with 26 years in the Senate and as a senior member of the Foreign Relations Committee, I do not have the right to see these documents?

Mr. WYDEN. The Senator is right. And we have in the chair serving as Presiding Officer of our distinguished body the Senator from Virginia, a decorated veteran. My understanding is he does not have the legal right to see these documents prior to the vote; that they were only made available to members of the Intelligence Committee and perhaps several others in the leadership. I think that is wrong. I think every Member of this body ought to insist on their right to be able to go down to the Old Executive Office Building and read the documents I have read, which I believe offer an extraordinarily skimpy case for total retroactive immunity.

I hope we will have a chance to discuss this issue further. I appreciate the Senator from Connecticut making the point that he has with respect to his seniority in the body, his membership on key committees, such as the Senate Foreign Relations Committee, and he is not provided the legal right to see these documents before he casts this vote.

I wish to discuss briefly one other amendment which has come up during the course of the morning, and that is an amendment I offered in the Senate Intelligence Committee which won bipartisan support in the Intelligence Committee addressing the rights of Americans who travel overseas. I offered it with the distinguished Senator from Wisconsin, Mr. Feingold, and the distinguished Senator from Rhode Island, Mr. Whitehouse. It was approved when the Intelligence Committee voted on that matter on a bipartisan basis.

Most of our citizens are probably not aware that the original Foreign Intelligence Surveillance Act only provided protections for Americans inside the United States and that it does not cover Americans who travel overseas.

So if the Government wants to deliberately tap the phone calls of a businesswoman, for example in Roanoke, VA, or an armed services member in Pendleton, OR, the Government has to go to a judge, present evidence, and get a FISA warrant. But if that businesswoman or that serviceman is sent overseas, the Attorney General can personally approve the surveillance by making his own unilateral determination of probable cause. In my view, this formulation makes no sense at all. In the digital age, the rights and freedoms of individual Americans should not be dependent on physical geography. That is why I offered the amendment in the Intelligence Committee that would make it clear that Americans have the same rights when they travel overseas as they do inside the United States.

Now, some have raised concerns that my amendment may have unintended consequences. I certainly don't want to see that, and so I have worked with Members of this body, particularly Senators ROCKEFELLER and BOND, to address those concerns. We have made it clear that we are open to technical changes in the proposal so that there will not be the prospect of any unintended consequences, while at the same time protecting the rights of our citizens who travel overseas. Our staffs have been working for many weeks on a potential managers' amendment which would preserve the original intent of the provision, which is very straightforward, and that is to give Americans overseas the same legal protections they have in the United States to the maximum extent possible and to the maximum extent consistent with national security.

We have made progress, Mr. President, on this issue, but we are not quite there yet. I have gotten varying reports as to what may constitute a managers' package with respect to this legislation, but I consider the matter of the travel rights of Americans so fundamental in the digital age, it would be my intent to object to any unanimous consent agreement that waters down these travel rights of law-abiding Americans during these crucial days.

I continue to remain hopeful that, working closely with the distinguished chairman of our full committee, Senator Rockefeller, and the vice chairman, Senator Bond, who is not on the floor, we can reach an agreement. All sides are working in good faith, but without the proper language on this matter, which I do think is once again fundamental to striking that balance between fighting terrorism aggressively and protecting individual liberty, without this amendment I would have to object to any unanimous consent agreement in a managers' package which didn't address the amendment that won bipartisan support in the committee. I hope it will not come to that, and I want to make it clear again to the chairman of the full committee, Senator Rockefeller, and to the vice chairman that I intend to work very closely with them in the upcoming hours to see if we can work this out so I will not have to object to the managers' amendment.

Mr. President, I yield the floor.

BREAK IN TRANSCRIPT

Source