Statement on FISA Amendments Act of 2007

Floor Speech

Mr. WHITEHOUSE. Madam President, I guess I would like to start by saying I appreciate very much the sentiments that were recently expressed by the Senator from Tennessee and the Senator from Texas, who is my friend who served with me as attorney general at the same time in our respective States, Texas and Rhode Island. I ask them to let me know when that new approach will begin because I am, frankly, not seeing much of it in the Foreign Intelligence Surveillance Act procedures we are going through on the floor. I confess, I am a new Member of this body, and I do not understand why.

We heard Senator Dodd, the very distinguished Senator from Connecticut, who has served in this body for 27 years, describe how important this Chamber is and that it is the right of Senators to debate matters, not for the sake of ventilating themselves but toward actually getting a vote on a real amendment on a matter of real significance.

We had one vote on a committee amendment. Not one Senator has achieved getting a vote, and we are on a very short timeframe. I may be new, but I will tell you that in the 1 year I have served, I have presided a great deal. The Presiding Officer, the Senator from Minnesota, and I have both spent a lot of time in that chair. It is a wonderful place to sit, and you get a great view and a great education as to what goes on in the Chamber.

I can recall over and over hearing my colleagues on the Republican side of the aisle, as mad as they could be, complaining bitterly because the majority had offered them only 10 amendments on a bill or only 20 amendments on a bill. I cannot get one called up.

Let me first say, this is an important issue. On the one hand, we have to deal with perhaps the greatest danger our country faces at this moment, which is the threat that comes from international terrorism, and we have at the same time to deal with one of the basic principles of our Government--freedom, freedom from, among other things, Government surveillance, unless it is done properly and by the law.

This is not some new idea. It goes back to the Bill of Rights, where the very Founders of this country mandated that before the Government could intrude into the persons, places, houses, and effects of Americans, they had to get permission from a court.

The balance between freedom and security is an important one, a historic one. So this is no minor issue on which to avoid real debate, and the amendments are important ones. The amendments involve the immunity issue about which Senator Dodd spoke so passionately. This is a very important issue.

As I see it, we have some cleaning up to do in this body as a result of a real mess the Bush administration left us. They could have gotten a court order, and we know perfectly well that if a court order had been obtained, there would be no issue of immunity for us to address. A company following a court order is protected. End of story. They couldn't be troubled to get a court order to protect these companies they are so concerned about now. But you do not necessarily need a court order. You can actually get a certification from the appropriate Government official using language this Congress has provided, and it will also provide protection to companies that cooperate in Government surveillance, as long as they have been notified properly through the certification process.

One would think the litigation would be over, if that certification process had been complied with. It would be a slam dunk. Which raises the logical conclusion that for some reason, the Government did not comply with the certification process. I don't know why they did that. I don't know if anybody else knows why they did that. It could be being obtuse and stubborn and insisting it had to be done under the President's unitary article II authority that they purposefully, deliberately failed to follow the certification process to prove that point they wanted to prove.

If that is the case, they have walked these phone companies into all this concern we now have to address for no purpose whatsoever.

But now we do have to address the problem. No matter how they got into it, we have this problem to address, and it is not an easy problem.

One side says: Well, blanket immunity. Well, that is fine, but you are taking away rights and due process of people who are in court right now. A judge has looked at this case and he didn't throw it out. There is nothing to suggest that the litigation going on right now is not entirely legitimate. So if we do that, we are taking away real rights of real Americans that are currently in play right now before a court.

I don't know of a time the Congress has ever done that. As a former prosecutor, like the Presiding Officer, the very notion that it is the legislature's job to go into ongoing legitimate litigation and make decisions about who should win and who should lose seems to me a spectacular trespass over the doctrine of separation of powers. I hope my colleagues in this body who are in the Federalist Society would be concerned about this separation of powers.

On the other hand, we could strip the legislation of its immunity entirely and leave the companies in the litigation. That is not a great solution either. There is a problem with that solution. The problem with that solution is that the Bush administration has bound and gagged the company defendants--instructed them they may not defend themselves. So here you have legitimate American corporations in legitimate litigation being told by the Government that they may not speak, they may not answer, they may not defend themselves. That doesn't seem like a great outcome either.

Well, an amendment I wish to offer, the one I just tried to call up, proposes a potential solution. If the Government is going to tell them they can't defend themselves, then in all decency shouldn't the Government step in for them and say: OK, we are going to bind you and we are going to gag you in this ring of litigation combat, but we are going to step in for you and not leave you unable to defend yourself? Isn't that the most decent, basic thing you could expect the Government to do? That is what this amendment would do. It would substitute the Government for the defendant corporations that the Government has bound and gagged in this litigation--muzzled.

It would do another thing: It would make sure that a court decided that these companies had in fact acted in good faith before they were given that relief. They have told us they have acted in good faith, but we are a legislature. Good faith is a finding the courts make. We are not judges. We haven't heard from all sides. We haven't had hearings, such as a court would have to get to the bottom of this.

There is an easy way to do it. You let the FISA Court, which has the secrecy necessary to get to the bottom of this, make the determination, the fundamental determination: Did these companies, in fact, act in good faith? That is a basic point of entry. We have all assumed it to be true, but it is not our job as Members of Congress to decide on the good faith of an individual litigant in a matter that is before a court.

I think this is a very legitimate amendment. It may not be germane postcloture. It may never come up as a result of this. Maybe it is just the new Senator. Poor kid, all this work on these bills. Doesn't he know the merits don't matter around here? Maybe it is a situation related to me not knowing my way around here yet. But I don't think so. Because Senator Feinstein, who has been here for a very long time, who is very distinguished, who is one of the most bipartisan Senators in this Chamber, if not the most bipartisan Senator in this Chamber, has a very similar piece of legislation. She has taken the good faith test in the Foreign Intelligence Surveillance Court and picked it out as a separate, solitary piece of legislation, and she is pursuing that. That amendment can't be called up either.

You could say: Well, maybe it is because I am a Democrat; they are shutting down all the Democrats. But my amendment is cosponsored by ARLEN SPECTER, the very distinguished Senator from Pennsylvania, who has been the chairman of the Judiciary Committee. It is the Specter-Whitehouse amendment. I don't see how you could have a better credential, a better bipartisan credential than to have the Republican chairman of the Judiciary Committee as the cosponsor of the amendment. And yet we can't call it up, and because of the cloture motion that has been filed, it may never be called up.

I think we are doing serious work, and I think we should get votes on these amendments. I know some of my colleagues have said: Well, you should defer to the committee bill. The committee bill was so good, it was bipartisan, it passed 13 to 2. Well, I was in that committee. Yes, it passed 13 to 2, but an awful lot of us said in our remarks on that bill that we passed it out of that committee in order to work on it further in the Judiciary Committee and in order to move amendments on the floor. It did not pass with a 13-to-2 vote of Senators saying this is ready to go to the President; this is ready to clear the Senate. It passed on a 13-to-2 vote of Senators who knew that the bill was going to the Judiciary Committee and who knew that the bill was going to the floor and had reason to expect the ordinary courtesies of this body to be able to offer amendments would be honored.

In fact, the amendment I tried to offer yesterday that was objected to, that I can't call up, I raised in the Intelligence Committee. I was told by the executive branch officials there--and I should say that throughout this process I hope nobody would challenge how carefully my office has worked with the administration to get these things right, to get technical language worked through properly--I was told by the executive branch officials that the way I had written the amendment caused technical difficulties. So I didn't pursue it in the Intelligence Committee. I withdrew it, noting that we would work through the technical difficulties and then bring it up again later on.

Nobody said then, oh, Senator Whitehouse, there is going to be no later on; the committee vote is all you will get. Nobody said that. Because that would violate the history and traditions of the Senate, because it would be wrong, and because it wasn't the program. It wasn't the plan at the time. I feel it has been represented to me that these amendments would be voted on, and I feel that representation has been dishonored by the procedure we are in right now.

I want to read something. I prepared remarks in the event that this amendment was going to go in. Of course, I thought it was going to go in. I had the Republican former chairman of the Judiciary Committee as a cosponsor and it addresses the biggest question in this legislation. It provides a potential resolution of the conflict between the two arguments. Why on Earth would it not be something that I would be able to exercise my traditional right to raise on the floor? So I planned ahead and I wrote remarks for that occasion. Here is what I wrote at the very end of the remarks.

Madam President, whether this amendment passes or fails, I would like to say that it is the product of a truly commendable process. Everybody here knows the old saw that the making of law is like the making of sausage. You might like the results, but you don't want to see what goes into making it. Not so here. This amendment and Senator Feinstein's are the results of many hours of thoughtful, bipartisan consideration, hard work by Senators and their staffs, reasoned and respectful committee debate, and what I am sure will be thorough debate on the floor.

Those are the remarks I wrote. And I have to say right now, those words taste like ashes in my mouth. I hope the spirit that Senator Alexander and Senator Cornyn brought to the floor a moment ago will begin to animate the FISA debate, and that legitimate--and I believe my Republican colleagues will concede these are legitimate--and sincere--and I believe my Republican colleagues will concede these are sincere--and important amendments have a chance to be raised and debated and voted on here on the floor of the Senate.

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