FISA Amendments Act of 2007

Floor Speech

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Mr. WHITEHOUSE. Madam President, I thank the distinguished Senator from Pennsylvania. I consider it a great personal honor to join him in sponsoring this important amendment. He has served with great distinction as a prosecuting attorney for Philadelphia for many years and then has served in this Senate for 27 years with great distinction, making him the longest serving Senator in Pennsylvania's history.

He has chaired the Senate Judiciary Committee, and he has always shown great intelligence and independence. In addition to all that, I am the junior member of the Senate Judiciary Committee, and he also has shown exceptional courtesy and good will toward me, notwithstanding my junior status and notwithstanding my position on the other side of the aisle. So it is with considerable pride and also considerable affection that I join him in supporting this amendment.

We face, as Senator Specter said, the critical balance between freedom and security, which will always be difficult to maintain as long as a threat of terrorism looms. As we all know, one of the many difficult issues that balance presents to us is the question of whether to grant immunity to telecommunications carriers who may have assisted the Government in this surveillance program.

On the one hand, the administration has called for a blanket grant of immunity to these companies. On the other hand, others have proposed preserving the status quo. We are proposing a more sensible, practical, middle path that does less constitutional damage and still protects the essential equities involved.

The choice is to give immunity, to stop the litigation, to end the claims against the companies, and take away the plaintiffs' case against them, which is not fair. Nothing yet suggests this is not completely legitimate litigation. The courts who are considering it haven't thrown it out, it is in process right now, and it is not fair to the plaintiffs to up and take away their day in court. Moreover, there is a huge separation of powers problem of a legislature intruding into ongoing litigation, now before a judge, and taking away active claims. We would be taking away plaintiffs' rights and claims, taking away their due process without even providing for the basic judicial finding that the defendant companies acted reasonably and in good faith. That damage suggests that blanket immunity is not a great solution and, indeed, it may even be unconstitutional.

The other choice we have on the immunity question is to do nothing. But consider this: the Government has forbidden the telephone company defendants to defend themselves, claiming state secrets privilege. They have tied the companies' hands behind their backs in this litigation, muzzled them, forbidden them to offer any defense. In my view, that is also not fair, particularly if the Government put these companies into this mess in the first place. If the Government wants to forbid self-defense by these companies, the decent thing for the Government to do would be to step into the lawsuit, and defend on their behalf. The Government should not leave legitimate American companies in the judicial arena, bound and muzzled, unable to defend themselves, and not itself be willing to step in the ring and take over. So it strikes me that doing nothing is not a great solution either.

The solution that fits the problem we face is this Specter-Whitehouse amendment, and it has two very simple parts. One, a judicial determination, confidentially, in the FISA Court, whether these companies acted reasonably and in good faith. That is a very simple determination that can be made with a very small amount of testimony based in many respects simply on the record of what was provided to companies. Second, if they did act reasonably and in good faith, there is then a well-established procedure under rule 25 of the Federal Rules of Civil Procedure, rule 25(c) to be specific, that can substitute the Government for these companies in this litigation.

First, let me talk about the good-faith determination. I hope we can all agree that if the companies did not act reasonably and in good faith, they shouldn't get protection. I hope we can agree on that. We establish a simple procedure for the good-faith question to be answered by the FISA Court. We in Congress should not be the judges of that. We are not judges. Good faith is a judicial determination. This is ongoing litigation. The companies have, of course, asserted to us that they acted in good faith, but that is no basis for us to conclude that, and we surely should not rely on one side's assertion in making a decision of this importance. Most Senators have not even been read into the classified materials that would allow them to reach a fair conclusion. This body is literally incapable of forming a fair opinion without access by most Members to the facts. So we need to provide a fair mechanism for a finding of good faith by a proper judicial body with the proper provisions for secrecy, which the FISA Court has.

Second, substituting in the Government. Well, if it turns out the Government directed the companies to engage in conduct that broke the law, the Government is the proper authority. If the companies acted reasonably and in good faith but ended up somehow breaking the law because of what the Government directed them to do, the real actor is the Government. Lawyers in this body will understand this is analogous to a principal-agent relationship. The Government is in effect the principal, the company acting as directed is the Government's agent, and under principal-agency law, the principal is liable for the acts of the agent.

So the simple solution contained in this amendment follows the law, it is founded in the Federal Rules of Civil Procedure, and it fits the problem we face. Consider: No one has legitimate rights and due process summarily taken away. This is, after all, the United States of America.

Two, if the carriers acted reasonably and in good faith, the Government steps in for them. In fact, the carriers get a judgment in their favor dismissing them from the cases.

Third, no one is forbidden to defend themselves in ongoing litigation. No one is bound and muzzled but forced to stay in a judicial fight.

Fourth, there is no intrusion by Congress into ongoing adjudication, no separation of powers trespassed.

Finally, if the companies acted reasonably and in good faith at the direction of the Government but ended up breaking the law, the Government truly is the morally proper party to the case. So this is not just sensible, but it is right. I hope my colleagues will support this amendment.

I see time is a little short, but let me continue a little bit longer because I wish to expand a little bit on this concern that intrusion by Congress into ongoing adjudication presents a separation of powers problem. Let me go all the way back to why we set up the separation of powers in the first place. I quote U.S. Supreme Court Justice Scalia specifically who said:

The sense of a sharp necessity to separate the legislative from the judicial power triumphed among the Framers of the new Constitution prompted by a crescendo of legislative interference with private judgments of the courts.

So the question of a legislature interfering with ongoing litigation was the live concern of the Founding Fathers when they separated the powers. In a case called the United States v. Klein, the U.S. Supreme Court threw out a congressional statute that purported to provide the rule of decision in a particular case, saying of this relationship between the legislative and judicial powers:

It is of vital importance that the legislative and judicial powers be kept distinct. It is the intention of the Constitution that each of the great courts and departments of the government--the legislative, the executive, and the judicial--shall be in its sphere independent of the others.

So I urge my colleagues who are considering this to consider the sensible merits of this amendment, to consider this is the morally right way to go forward, and further, to consider that it reduces considerably the risk that if we go ahead and give these companies this immunity, the companies end up with a lawsuit, they end up with a case and a statute that is thrown out because it is unconstitutional, and in effect we create a snarl rather than a solution for them.

So with that said, I would again like to say how very much it means to me to be cosponsoring this amendment with the very distinguished Senator and former chairman of the Judiciary Committee, Senator Specter of Pennsylvania.

I thank the Chair and I yield the floor.

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