FISA Amendments Act of 2007
Floor Speech
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Mr. WHITEHOUSE. Mr. President, I am glad to have had the occasion to be on the floor and hear the words of the very distinguished Senator from Utah, who has served with such distinction on the Intelligence Committee for so long, but I would respond to him first that this much-touted 13-to-2 vote in the Intelligence Committee, as shown by the record of the additional views of the members of the Intelligence Committee, reflected the consensus of the Intelligence Committee that this was a work in progress; that it should go on to the Judiciary Committee, which was its next stop, and then to the floor. There was no sense that the work on the bill should stop at the time it left the Intelligence Committee.
Indeed, in the 13-to-2 vote, there were 9 Senators who offered additional views suggesting changes or differences in the legislation. So I don't think it would be wise or appropriate for this body to take a look at what the Intelligence Committee did and say that because the number appears to be 13 to 2 on the surface that we are not going to do our job of continuing to work on this work in progress.
In that spirit, I rise today to support amendment No. 3919, on good faith determinations, offered by Senators FEINSTEIN and NELSON. In the divisive debate we are having over immunity, Senator Feinstein's amendment is a commendable effort to find middle ground, to which Senator Feinstein has brought great diligence and care. Senator Specter and I have offered a broader approach, but I also support the Feinstein-Nelson amendment.
This amendment goes forward with the first half of Specter-Whitehouse. It provides for an independent judicial review of the companies' good faith. Specter-Whitehouse then provides for substitution of the Government in place of the companies, which would protect plaintiffs' legitimate rights to continue legitimate litigation, including the right to conduct discovery.
Substitution also avoids the problem of uncompensated congressional termination of ongoing litigation--a separation of powers problem. Senator Feinstein's alternative at least provides for the bare minimum of a judicial determination whether the defendant companies were acting in compliance with the law or with the reasonable good faith belief that they were in compliance. I would note this is probably the lowest possible standard. We don't even require companies to have been acting within the law. All we require in this amendment is that they have a reasonable and good faith belief they were acting within the law.
As I have said before, both of the all-or-nothing approaches we are presented with here are flawed. Full immunity would strip the plaintiffs of their day in court and take away their due process rights without any judicial determination that the companies acted in good faith. That is not fair. Nothing suggests this isn't legitimate litigation, and it is wrong to take away a plaintiff's day in court without a chance to show why doing so may not be warranted.
I hope in this Chamber we can all agree that if the companies did not act reasonably and in good faith they shouldn't get protection. If we agree on that, the question becomes where the good faith determination should be made. I think it should be in court, and that is where Senator Feinstein's amendment puts it--in this case, the FISA Court. First, it should not be here. We in Congress are not judges, and good faith is a judicial determination. We should leave this key determination to the judicial branch of Government. The companies have, of course, asserted that they acted in good faith. But we surely should not rely on one side's assertions in making a decision of this importance.
Moreover, 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 this is the wrong place to have it. 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. If we do not do this, we are simply acting by brute political force, and doing so in an area where there are significant constitutional issues. Congress cutting off the ongoing work of the judicial branch may well violate the boundary that keeps the legislative and judicial branches separate--a cornerstone of our Constitution.
In an opinion written by Justice Scalia, the U.S. Supreme Court said that the Framers of the Federal Constitution had what they called ``the sense of a sharp necessity to separate the legislative from the judicial power, prompted by the crescendo''--was the word they used--``of legislative interference with private judgments of the courts.''
If there were ever a case of legislative interference with private judgment of the courts, this is it. On the other hand, consider the fact that the Government has forbidden these defendants to defend themselves. By invoking the state secrets privilege, the Government has gagged the companies. In my view, that is not fair either, particularly if the Government put these companies in this mess in the first place. So both of the all-or-nothing approaches are flawed.
I think Senator Specter and I have come up with the best answer: substitution. But Senator Feinstein's amendment at least requires the FISA Court to make an initial determination that the companies either did not provide assistance to the Government--obviously, if they did not do anything, they should not be liable--or were actually complying with the law. Clearly, if they complied with the law, they should not be liable--or were at least acting with a reasonable good-faith belief that they were complying with the law--again, the lowest possible standard. If we cannot agree on this, then we have really taken our eyes off of our duties. The difference then becomes that once that good-faith determination is made, the Specter-Whitehouse amendment would lead to substitution, whereas the Feinstein-Nelson amendment would lead to a termination of the claims.
Both of these approaches are better than the all-or-nothing alternative we otherwise face, and both share the same goal: to use existing procedures and existing rules and existing courts to unsnarl this litigation and move it toward a just and a proper conclusion.
I urge my colleagues to support both the Specter-Whitehouse and the Feinstein-Nelson amendments.
I make one final point. Senator Hatch pointed out that the people who serve us in our intelligence community are honorable, are well trained, are intelligent, are decent, and are trying to do the right thing. I do not challenge any of that.
As the U.S. attorney, I worked with FBI agents day-in and day-out, Secret Service agents, Drug Enforcement Administration agents, Alcohol, Tobacco and Firearms agents--all decent, honorable, hard working, well trained, trying to do the right thing. In that environment, they are all very comfortable that the structure we have put in place for domestic surveillance, to protect American's rights, is a useful thing, it is important infrastructure of Government.
I see what we are trying to do now not as a criticism of the people in the intelligence community but, rather, as being an attempt to build out the infrastructure, the infrastructure that balances freedom and security in this new area of international surveillance, in just the same way we put restrictions on our agents at home.
As attorney general, I actually had to personally get the wiretaps for the State of Rhode Island from the presiding judge of the superior court. I would say the same thing about the Rhode Island State troopers with whom I worked in those cases.
Agents and police officers who have this responsibility do not resent the fact that they are given a structure to work within. I doubt that the intelligence community would resent a sensible measure that would allow a judicial determination before an American company has a finding of good faith made about it.
I yield the floor, and I suggest the absence of a quorum.
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