[Congressional Record: June 24, 2008 (Senate)]
[Page S6082-S6095]

    [On the Foreign Intelligence Surveillance Amendments Act]

  Mr. DODD. [...]
This evening I rise to talk about another matter, which will be the 
subject of a debate, whether it is in the next few days or weeks. It is 
a subject matter which I care deeply and passionately about. It 
involves the rule of law, the Constitution of the United States, and 
the very basic principle that we are a nation of laws, not men; that 
even those in the most lofty of positions in our Government are not 
above the law; that individuals, corporations, and companies have an 
obligation to respect that law, and those of us charged with guarding 
it in an institution such as the Senate have an obligation to defend it 
and to remind ourselves and the country when there are efforts to 
undermine that rule of law.
  As I did in December of last year, when the matter first came up, and 
again in February, when the effort came back to the Senate to change 
the Foreign Intelligence Surveillance Act, and particularly to grant 
retroactive immunity to a handful of telecom companies, which, over the 
past number of years, have gathered up information and private 
information of individual citizens in this country, which may have been 
the single largest breach or personal invasion in the history of our 
country, the issue of whether that was done legally ought to be 
determined by the courts of our country.
  The bill that will come before us grants retroactive immunity without 
ever considering what happened, how it happened, who was responsible, 
why it was done, and why was no effort made to go before the Foreign 
Intelligence Surveillance Courts--the FISA courts--which have been in 
existence since the 1970s. All of those are important questions the 
American people deserve an answer to. Was the rule of law violated? 
Were there individuals who insisted that this invasion of privacy occur 
in this country? I don't think it is asking too much to want to get to 
the bottom of that. Americans, regardless of ideology or party 
persuasion, ought to be jointly offended when there is an effort here 
to grant retroactive immunity without determining what happened and why 
these events were allowed to go forward.
  This evening I am going to take the time allowed to me under the 
rules of the Senate because we are in a postcloture environment. I am 
limited to the amount of time I am permitted to talk under the rules of 
the Senate. But I can do this because of the generosity of Senator Jack 
Reed of Rhode Island, Senator Max Baucus of Montana, and the 
willingness of the majority leader, to give me the maximum time allowed 
to talk about this FISA bill, the Foreign Intelligence Surveillance 
Act. I will speak about why I am so deeply concerned about it, and what 
I think the precedent-setting nature of this could mean for our 
  There are moments such as this when we are asked to do something 
because, we are told, if we don't, we will jeopardize our Nation. 
During such times, we have historically made some of the worst mistakes 
in our history. One only needs to go back to the period of World War II 
when, because of the fears people had, we incarcerated a lot of very 
good Americans of Japanese descent, because those who engaged in the 
fear mongering were able to convince even the Supreme Court of the 
United States--a majority--to allow for the virtual incarceration of 
literally thousands of human beings. We know now, today, what a great 
mistake that was, and how courageous it was that people like Robert 
Jackson, a Supreme Court Justice, a former Attorney General under 
Franklin Roosevelt, a solicitor general, chief prosecutor at Nuremberg, 
one of the sole voices on the Court who objected to that effort to 
require these American citizens to be deprived of their homes, personal 
belongings, and the virtual incarceration in camps in the western part 
of the country. Today, we know what a mistake that was. But because we 
acted out of fear, we made a dreadful error.

  My concern about this FISA bill, while not of that magnitude at this

[[Page S6083]]

point, is that we are about to make another great error because of 
fear, because we fail to understand that balancing legitimate interests 
of our security and our rights ought not to be compromised. That is 
what the FISA courts were created to do--to balance rights and fears 
over legitimate concerns about our security being jeopardized.
  So I rise once again to voice my strong opposition to the misguided 
FISA legislation before us, as it will come in the next day or so. I 
have strong reservations about the so-called improvements made to title 
I of the legislation. But more than that, this legislation includes 
provisions that would grant retroactive immunity to telecommunications 
companies that apparently have violated the privacy and the trust of 
millions of our fellow citizens by participating in the President's 
warrantless wiretapping program. If we pass this legislation, the 
Senate will ratify a domestic spying regime that has already 
concentrated far too much unaccountable power in the President's hands 
and will place the telecommunications companies above the law.
  I am here this evening to implore my colleagues to vote against 
cloture when that vote occurs, as it will sometime in the next 24 to 48 
  Let me make it clear at the outset of the debate that this is not 
about domestic surveillance itself. We all recognize, here and 
elsewhere, the importance of domestic surveillance in an age of 
unprecedented threats. This is about illegal, unwarranted, unchecked 
domestic surveillance. The difference between surveillance that is 
lawful, warranted, and that which is not, is everything.
  I had hoped I would not have to return to this floor again under 
these circumstances. I hoped, in truth, that in these negotiations that 
went on over the past number of weeks and months we would have been 
able to turn aside retroactive immunity on the grounds that it is bad 
policy and sets a terrible precedent.
  As all of my colleagues know, I have long fought against retroactive 
immunity, because I believe it is simply an abandonment of the rule of 
law. I have fought this with everything I have in me, and I have not 
waged this fight alone.
  In December, I opposed retroactive immunity on the floor of this 
body. I spent 10 hours on this floor then. In January and February, I 
came to the floor time and time again to discuss the dangers of 
granting retroactive immunity, along with my colleague and friend, Russ 
Feingold of Wisconsin, who has shown remarkable leadership on this 
issue. I offered an amendment that would have stripped retroactive 
immunity from the Senate bill. Unfortunately, our amendment failed and, 
to my extreme disappointment, the Senate adopted the underlying bill.
  Since passage of the Senate bill, there have been extensive 
negotiations on how to move forward. Today we are being asked to pass 
the so-called compromise that was reached by some of our colleagues and 
approved by the other body, the House of Representatives.
  I am here this evening to say I will not and can not support this 
legislation. This legislation goes against everything I have stood 
for--everything this body ought to stand for, in my view.
  There is no question some improvements have been made over the 
previous versions of this legislation. Title I, which regulates the 
ability of Government to conduct electronic surveillance, has been 
improved, albeit modestly. I congratulate those who were involved with 
it. I say, very quickly, that it is my hope a new Congress and a new 
President will work together to fix the problems with title I should 
the Senate adopt this new legislation.
  But in no way is this compromise acceptable. This legislation before 
us purports to give the courts more of a role in determining the 
legality of the telecommunications companies' actions. But in my view 
the title II provisions do little more than ensure without a doubt that 
the telecommunications companies will be granted retroactive immunity.
  Allow me to quote the Senate Intelligence Committee report on this 
matter. It reads as follows:

       [B]eginning soon after September 11, 2001, the Executive 
     branch provided written requests or directives to U.S. 
     electronic communications service providers to obtain their 
     assistance with communications intelligence activities that 
     had been authorized by the President.
        . . . The letters were provided to electronic 
     communication 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 [of the United States], except for one letter that 
     covered a period of less than 60 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.

  This is all from the Intelligence Committee report.
  Under the legislation before us, the district court would simply 
decide whether the telecommunication companies received documentation 
stating the President authorized the program and that there had been 
some sort of determination it was legal. But as the Intelligence 
Committee has already made clear, we already know this happened. We 
already know the companies received some form of documentation with 
some sort of legal determination.
  But that is not the question. The question is not whether these 
companies received a document from the White House. The question is, 
Were their actions legal? Were they above the law or not?
  It is a rather straightforward, surprisingly uncomplicated question. 
The documentation exists. Was it legal or not? Either the companies 
were presented with a warrant or they were not. Either the companies 
and the President acted outside the rule of law or they followed it. 
Either the underlying program was legal or it was not--not a 
complicated question. Was it legal or wasn't it?
  The suggestion that they had documentation is then supposed to be a 
justification for the legality of it is not for us to decide. That is a 
matter for the courts, the coequal branch of Government called the 
judiciary. We are asked to determine that this was legal because 
documents were sent, not because some adjudication as to whether there 
had been a legal basis for these documents. Yet we are told that with 
the adoption of this legislation, accept it as a conclusion and move 
on. I don't believe we ought to do that. I believe it is a mistake and 
a mistake of significance.
  Because of this legislation, none of the questions will be answered. 
Because of the so-called compromise, the judge's hands will be tied and 
the outcome of these cases will be predetermined by our votes. Because 
of this so-called compromise, retroactive immunity will be granted and, 
as they say, that will be that. Case closed.
  No court will rule on the legality of the telecommunications 
companies' activities in participating in the President's warrantless 
wiretapping program. None of our fellow Americans will have their day 
in court. What they will have is a Government that has sanctioned 
lawlessness, at least as far as we know.
  I refuse to accept that argument. I refuse to accept the argument 
that because the situation is too delicate, too complicated, this body 
is simply going to go ahead while sanctioning lawlessness. I think we 
can do better than that. I think we have an obligation to do better 
than that.
  If I have needed any reminder of that fact, simply look to those who 
have joined this fight--my colleagues and the many Americans who have 
given me an awful lot of support and strength for this fight, strength 
that comes from the passion and eloquence of citizens who don't have to 
be involved but choose to be involved.
  They see what I see in this debate--that by short-circuiting the 
judicial process, we are sending a dangerous signal to future 
generations. They see us as establishing a precedent that Congress can 
and will provide immunity to potential lawbreakers if they are 
important enough.
  Some may be asking: Why is retroactive immunity too dangerous? What 
is the issue? Why should you care at all? Allow me to explain by 
providing, if I can, a bit of context. I remind my colleagues what I 
said about the bill months ago because the argument against providing 
retroactive immunity remains unchanged. Nothing has changed since last 
December, January or February.

[[Page S6084]]

  Unwarranted domestic spying did not happen in a panic or short-term 
emergency, not for a week, a month or even for a year. If it had, quite 
candidly, I would not be standing here this evening. I understand, in 
the wake of 9/11, there were actions taken because of the legitimate 
fears we had, given the circumstances of that attack, that some actions 
such as this for a week, a month, a year, I think I would have accepted 
as normal, understandable behavior as a government overreacting in 
haste and in the emotions of the moment. But that is not the case. We 
now know this spying by the administration went on relentlessly for 
more than 5 years.
  I might not be here as well if it had been the first offense of a new 
administration. Maybe not if it had been the second or third. Again, 
understanding mistakes can be made. No one is perfect. Again, in the 
haste of the moment, the emotions, these things can happen. But that is 
not the case either.
  Indeed, I am here tonight because with one offense after another 
after another, I believe it is long past time to say enough is enough. 
I am here this evening because of a pattern--a pattern of abuse against 
civil liberties and the rule of law, against the Constitution of the 
United States, of which we are custodians, temporary though that status 
may be.
  I would add that had these abuses been committed by a President of my 
own party, I would have opposed them as strongly as I am this evening. 
I am here this evening because warrantless wiretapping is merely the 
latest link in a long chain of abuses.
  So why are we here? Because it is alleged that giant telecom 
corporations worked with our Government to compile Americans' private, 
domestic communications records into a database of enormous scale and 
  Secretly, and without warrant, these corporations are alleged to have 
spied on their own customers, the American people. Here is only one of 
the most egregious examples, according to the Electronic Frontier 

       Clear, first-hand whistleblower documentary evidence 
     [states] . . . that for year on end, every e-mail, every text 
     message, every phone call carried over the massive fiber-
     optic links of 16 separate companies routed through AT&T's 
     Internet hub in San Francisco--hundreds of millions of 
     private, domestic communications--have been . . . copied in 
     their entirety by AT&T and knowingly diverted wholesale by 
     means of multiple ``splitters'' into a secret room controlled 
     exclusively by the NSA.

  The phone calls and the Internet traffic of millions of Americans 
diverted into a secret room controlled by the National Security Agency. 
That allegation still needs to be proven in a court of law. But it 
clearly needs to be determined in a court of law and not by a vote in 
the Senate.
  I suppose if you only see cables and computers there, the whole thing 
seems almost harmless, certainly nothing to get worked up about; one 
might say a routine security sweep and a routine piece of legislation 
blessing it.
  If that is all you imagine happened in the NSA secret room, I imagine 
you will vote for immunity. I imagine you would not see much harm in 
voting to allow the practice to continue either.
  But if you see a vast dragnet for millions of Americans' private 
conversations conducted by a government agency that acted without a 
warrant, acted without the rule of law, then I believe you recognize 
what is at stake. You see that what is at stake is the sanctity of the 
law and the sanctity of our privacy. And you will probably come to a 
very different conclusion.
  Maybe that sounds overdramatic to some. Perhaps they will ask: What 
does it matter at the end of the day if a few corporations are not 
sued? These people sue each other all the time.
  Others may say: This seems a small issue. Maybe the administration 
went too far, but this seems like an isolated case.
  Indeed, as long as this case seems isolated and technical, then those 
who are supporting this will win. As long as it appears to be about 
another lawsuit buried in our legal system and nothing more, then they 
will win as well. The administration is counting on the American people 
to see nothing bigger than that--nothing to see here.
  But there is plenty to see here, and it is so much more than a few 
phone calls, a few companies, and a few lawsuits. What is at stake is 
nothing less than equal justice--justice that makes no exceptions. What 
is at stake is an open debate on security and liberty and an end to 
warrantless, groundless spying.
  The bill does not say trust the American people, trust the courts and 
judges and juries to come to a just decision. Retroactive immunity 
sends a message that is crystal clear: Trust me. And that message comes 
straight from the mouth of an American President: Trust me.
  What is the basis of that trust? Classified documents, we are told, 
that prove the case for retroactive immunity beyond a shadow of a 
doubt. But we are not allowed to see them, of course. I have served in 
this body for 27 years, and I am not allowed to see them. Neither are a 
majority of my colleagues. We are all left in the dark.
  I cannot speak for my colleagues, but I would never take the ``trust 
me'' for an answer, not even in the best of times, not even from a 
President on Mount Rushmore. I cannot put it better than this:

       ``Trust me'' government is government that asks that we 
     concentrate our hopes and dreams on one man; that we trust 
     him to do what's best for us. My view of government places 
     trust not in one person or one party, but in those values 
     that transcend persons and parties.

  Those words are not spoken by someone who took our national security 
lightly. They were spoken by Ronald Reagan in 1980. They are every bit 
as true today. President Reagan's words--let me repeat them:

       ``Trust me'' government is government that asks that we 
     concentrate our hopes and dreams on one man; that we trust 
     him to do what is best for us. My view of government places 
     trust not in one person or one party, but in those values 
     that transcend persons and parties.

  Those words of Ronald Reagan, 28 years ago, were right and those 
words are right today in the year 2008. They are every bit as true 
today, even if times of threat and fear blur our concept of 
transcendent values, even if those who would exploit those times urge 
us to save our skins at any cost.
  But again, why should any of us care, I suppose. The rule of law has 
rarely been in such a fragile state. Rarely has it seemed less 
compelling. What, after all, does the law give us, anyway? It has no 
parades, no slogans. It does not live in books or precedents. We are 
never failed to be reminded the world is a very dangerous place.
  Indeed, that is precisely the advantage seized upon, not just by this 
administration but in all times, by those looking to disregard the rule 
of law. Listen to the words of James Madison, the father of our 
Constitution, words that he said more than two centuries ago:

       It is a universal truth that the loss of liberty at home is 
     to be charged to the provisions against danger . . . from 

  With the passage of this bill, the words of James Madison will be one 
step closer to coming true. So it has never been more essential that we 
lend our voices to the law and speak on its behalf.
  What is this about? It is about answering the fundamental question: 
Do we support the rule of law or the rule of men? To me, this is our 
defining question as a nation and may be the defining question that 
confronts every generation, as it has throughout our history.
  This is about far more than a few telecoms. It is about contempt for 
the law, large and small.
  I have said that warrantless wiretapping is but the latest link in a 
long chain of abuses when it comes to the rule of law. This is about 
the Justice Department turning our Nation's highest law enforcement 
offices into patronage plums, turning the impartial work of indictments 
and trials into the pernicious machinations of politics. Contempt for 
the rule of law once again.
  This is about Alberto Gonzales, the Nation's now-departed Attorney 
General, coming before Congress to give us testimony that was, at best 
wrong and at worst, outright perjury. Contempt for the rule of law by 
the Nation's foremost enforcer of the law.
  This is about a Congress handing the President the power to designate 
any individual he wants as an unlawful enemy combatant, hold that 
individual indefinitely, take away his or her right to habeas corpus, 
the 700-year-old right to challenge anyone's detention.

[[Page S6085]]

  If you think the Military Commissions Act struck at the heart of the 
Constitution, you would be understating this. It did a pretty good job 
on the Magna Carta while it was at it.
  If you think this only threatens a few of us, you should understand 
that the writ of habeas corpus belongs to all of us. It allows anyone 
to challenge their detention.
  Rolling back habeas corpus endangers us all. Without a day in court, 
how can you prove you are entitled to a trial? How can you prove you 
are innocent? In fact, without a day in court, how can you let anyone 
know you have been detained at all?
  Thankfully, and to their great credit, the Supreme Court recently 
rebuked the President's lawlessness and ruled that detainees do have 
the right to challenge their detention.
  Mr. President, the Military Commissions Act also gave President Bush 
the power some say he wanted most of all: the power to get information 
out of suspected terrorists by virtually any means, the power to use 
evidence gained from torture.
  I don't think you could hold the rule of law in any greater contempt 
than sanctioning torture. Because of decisions made by the highest 
levels of our Government, America is making itself known to the world, 
unfortunately, for torture, with stories like this one:
  A prisoner at Guantanamo--to take one example out of hundreds--was 
deprived of sleep for over 55 days, a month and 3 weeks. Some nights, 
he was doused with water or blasted with air-conditioning. After week 
after week of this delirious, shivering wakefulness, on the verge of 
death from hypothermia, doctors strapped him to a chair--doctors, 
healers who took the Hippocratic Oath to do no harm--pumped him full of 
three bags of medical saline, brought him back from death, and sent him 
back to his interrogators.
  To the generation coming of age around the world in this decade, that 
is America--not Normandy, not the Marshall Plan, not Nuremberg, but 
Guantanamo. Think about it.
  We have legal analysts so vaguely defining torture, so willfully 
blurring the lines during interrogations that we have CIA 
counterterrorism lawyers saying things like, ``If the detainee dies, 
you're doing it wrong.'' We have the CIA destroying tapes containing 
the evidence of harsh interrogations--about the administration covering 
its tracks in a way more suited to a banana republic than to the home 
of great freedoms. We have an administration actually defending 
waterboarding, a technique invented by the Spanish Inquisition, 
perfected by the Khmer Rouge, and in between originally banned for 
excessive brutality--listen to this--by the Gestapo.
  Still, some way waterboarding is not torture. Oh, really? Listen to 
the words of Malcolm Nance, a 26-year-old expert in intelligence and 
counterterrorism, a combat veteran, and former chief of training at the 
U.S. Navy Survival, Evasion, Resistance and Escape School. While 
training American soldiers to resist interrogation, he writes:

       I have personally led, witnessed, and supervised 
     waterboarding of hundreds of people. Unless you have been 
     strapped down to the board, have endured the agonizing 
     feeling of water overpowering your gag reflex, and then feel 
     your throat open and allow pint after pint of water to 
     involuntarily fill your lungs, you will not know the meaning 
     of the word. It does not simulate drowning, as the lungs are 
     actually filling with water. The victim is drowning. How much 
     the victim is to drown depends on the desired result and the 
     obstinacy of the subject. Waterboarding is slow motion 
     suffocation. Usually the person goes into hysterics on the 
     board. When done right it is controlled death.

  That is from a soldier, a combat veteran, testifying about what 
waterboarding was about--controlled death. That is not torture? Not 
according to President Bush's White House. They have said waterboarding 
is legal and that if it chooses, America will waterboard again.
  Surely, then, our new Attorney General would condemn torture. Surely 
the Nation's highest law enforcement officer in the land, coming after 
Alberto Gonzales's chaotic tenure, would never come before the Congress 
and defend the President's power to openly break the law. Well, think 
  When he came to the Senate for his confirmation, Michael Mukasey was 
asked a simple question, bluntly and plainly: Is waterboarding 
constitutional? He replied: ``If waterboarding is torture, torture is 
not constitutional.''
  One would hope for a little more insight from someone so famously 
well versed in national security law, but Mr. Mukasey pressed on with 
the obstinacy of a witness pleading the fifth: ``If it's torture, if it 
amounts to torture, it is not constitutional,'' he said. And that is 
the best this noted jurist, this legal scholar, longtime judge, an 
expert on national security law had to offer on the defining moral 
issue of this Presidency. Claims of ignorance. Word games.
  Now-Attorney General Mukasey was asked the easiest question we have 
in a democracy: Can the President of the United States openly break the 
law? Can he, as we know he has already done, order warrantless 
wiretapping, ignore the will of Congress, and then hide behind nebulous 
powers he claims to find in the Constitution? The response of the 
nominee to become Attorney General: The President has ``the authority 
to defend the country.'' In one swoop, the Attorney General conceded to 
the President nearly unlimited power, just as long as he finds a lawyer 
willing to stuff his actions into the boundless rubric of ``defending 
the country''--unlimited power to defend the Nation, to protect us as 
one man sees fit, even if that means listening to our phone calls 
without a warrant, even if it means holding some of us indefinitely. 
That is contempt for the rule of law.
  So this is very much about torture--about enhanced interrogation 
measures and waterboarding. It is also about extraordinary rendition--
outsourced torture of men this administration would prefer we didn't 
even know exist.
  But now we do know. One was a Syrian immigrant raising his family in 
Canada. He wrote computer code for a company called MathWorks and was 
planning to start his own tech business. On a trip through New York's 
JFK Airport, he was arrested by U.S. federal agents. They shackled him 
and bundled him onto a private CIA plane and flew him across the 
Atlantic Ocean to Syria. This man spent the next 10 months and 10 days 
in a Syrian prison. His cell was 3 feet wide--the size of a grave. Some 
300 days passed alone in that cell, with a bowl for his toilet, another 
bowl for his water, and the door only opened so he could wash himself 
once a week--though it may have been more or less because the cell was 
dark and he lost all track of time. The door only opened for one 
reason: for interrogators who asked him again and again and again about 
  Here is how it was described:

       The interrogator said, ``Do you know what this is?'' I 
     said, ``Yes, it's a cable,'' and he told me, ``Open your 
     right hand.'' I opened my right hand, and he hit me like 
     crazy. It was so painful, and of course I started crying, and 
     then he told me to open my left hand, and I opened it, and he 
     missed, then hit my wrist. And then he asked me questions. If 
     he does not think you are telling the truth, then he hits you 

  The jail and the torturers were Syrian, but America sent this man 
there with full knowledge of what would happen to him because it was 
part of a longstanding secret program of ``extraordinary rendition,'' 
as it is called. America was convinced that he was a terrorist and 
wanted the truth beaten out of him.
  No charges were ever filed against him. His adopted nation's 
government, Canada, one of our strongest NATO allies, cleared him of 
all wrongdoing after a year-long official investigation and awarded him 
more than $10 million in government compensation for his immense pain 
and suffering--but not before he was tortured 10 months, 10 days in a 
3-foot by 3-foot cell the size of a grave. Does his torture make us 
safer? Did his suffering improve our security? Of course not.
  I would note that our own Government has shamefully refused to even 
acknowledge that his case exists.
  We know about a German citizen as well, living in the city of Ulm 
with his wife and four children. On a bus trip through Eastern Europe, 
he was pulled off at a border crossing by armed guards and held for 3 
weeks in a hotel room, where he was beaten regularly. At the end of 3 
weeks, he was drugged and shipped on a cargo plane to Kabul, 
Afghanistan. For 5 months, he was held in the Salt Pit--a secret 
American prison staffed by Afghan guards. All he had to drink was 
stagnant water from a filthy bottle. Again and again,

[[Page S6086]]

masked men interrogated him about al-Qaida, and finally, he says, they 
raped him. He was released in May of 2004. Scientific testing confirmed 
his story of malnourishment, and the Chancellor of Germany publicly 
acknowledge he was wrongly held. What was his crime? Having the same 
name as a suspected terrorist.

  Again, our own Government has shamefully refused to even acknowledge 
that this case exists.
  So we do know, Mr. President. We know because there aren't enough 
words in the world to cover all the facts.
  If you would like to define torture out of existence, be my guest. If 
you would rather use a Washington euphemism--``tough questioning,'' 
``enhanced interrogation''--feel free. Feel free to talk about 
fraternity hazing, as Rush Limbaugh did, or to use a favorite term of 
Vice President Cheney's, ``a dunk in the water.'' You can call it 
whatever you like. But when you are through, the facts will be waiting 
for you: controlled death, outsourced torture, secret prisons, month-
long sleep deprivations, the President's personal power to hold 
whomever he likes for as long as he likes. It is as if you had awakened 
in the middle of some Kafka-esque nightmare.
  Have I gone wildly off topic, Mr. President? Have I brought up a 
dozen unrelated issues? I wish I had. I wish that none of these stories 
were true. But we are deceiving ourselves when we talk about the U.S. 
attorneys issue, the habeas issue, the torture issue, the rendition 
issue, or the secrecy issue as if each were an isolated case, as if 
each were an accident. When we speak of them as isolated, we are 
keeping our politics cripplingly small. And as long as we keep this 
small, the rule of men is winning.
  There is only one issue here; that is, the rule of law, the law 
issue. Does the President of the United States serve the law or does 
the law serve the President? Each insult to our Constitution comes from 
the same source. Each springs from the same mindset. If we attack this 
concept for the law at any point, we will wound it at all points.
  That is why I am here this evening, Mr. President. Retroactive 
immunity is on the table for discussion over these next several days, 
but also at issue is the entire ideology that justifies it, the same 
ideology that defends torture and executive lawlessness. Immunity is a 
disgrace in itself, but it is far worse in what it represents. It tells 
us that some believe in the courts only so long as their verdict goes 
their way; that some only believe in the rule of law so long as 
exceptions are made at their desire. It puts secrecy above sunshine and 
fiat above the law.
  Did the telecoms break the law? I don't know. I can't say so. But 
pass immunity, and we will never know. A handful of favored 
corporations will remain unchallenged. Their arguments will never be 
heard in a court of law. The truth behind this unprecedented domestic 
spying will never see the light of day, and the cases will be closed 
  ``Law'' is a word we barely hear from the supporters of immunity. 
They offer neither deliberation about America's difficult choices in 
the age of terrorism nor a shared attempt to set for our times the 
excruciating balance between security and liberty. They merely promise 
a false debate on a false choice: security or liberty but never, ever 
  I think differently, and I believe some of my colleagues do as well. 
I think America's founding truth is unambiguous: security and liberty, 
one and inseparable and never one without the other, no matter how 
difficult the situation, no matter what threats we face. Secure in that 
truth, I offer a challenge to immunity supporters: You want to put a 
handful of corporations above the law. Could you please explain how 
your immunity makes any one of us any safer at all?
  The truth is that a working balance between security and liberty has 
already been struck. In fact, it has been settled for decades--for 30 
years, in fact. FISA, the Foreign Intelligence Surveillance Act, has 
prevented executive lawbreaking and protected Americans, and that 
balance stands today.
  In the wake of the Watergate scandal in the 1970s, the Senate 
convened the Church Committee, a panel of distinguished former Members 
of this body determined to investigate executive abuses of power. Not 
surprisingly, they found that when Congress and the courts substitute 
``trust me'' ideas for real oversight, massive lawbreaking can result. 
The Church Committee found evidence of the U.S. Army spying on the 
civilian population, Federal dossiers on citizens' political 
activities, a CIA and FBI program that opened hundreds of thousands of 
Americans' letters without warning or warrant. In sum, Americans had 
sustained a severe blow to their fourth amendment rights ``to be secure 
in their persons, houses, papers, and effects, against unreasonable 
searches and seizures.'' At the same time, the Senators of the Church 
Committee understood surveillance was needed to go forward to protect 
our people.
  Surveillance itself is not the problem. Unchecked, unregulated, 
unwarranted surveillance was. What surveillance needed, in a word, was 
legitimacy. And in America, the Founders understood power becomes 
legitimate when it is shared. Congress and the courts check that 
attitude which so often crops up in the executive branch--``if the 
President does it, it is not illegal.''
  The Church Committee's final report, ``Intelligence Activities and 
the Rights of Americans,'' put the case very powerfully indeed.

       The critical question before the committee was to determine 
     how the fundamental liberties of our people can be maintained 
     in the course of the government's efforts to also protect our 
     people. The delicate balance between these basic goals, two 
     absolutely essential goals of our system of government, is 
     often difficult to strike, and it is never perfect, but it 
     can, and must, be achieved.

  A sense of balance between liberty and security, security and 

       We reject the view that the traditional principles of 
     justice and fair play have no place in our struggle against 
     the enemies of freedom. Moreover, our investigation has 
     established that the targets of intelligence activity have 
     ranged far beyond persons who could properly be characterized 
     as enemies of freedom.

  The Church Committee went on:

       We have seen segments of our government, in their attitudes 
     and actions, adopt tactics unworthy of a democracy, and 
     occasionally reminiscent of the tactics of totalitarian 
     regimes. We have seen a consistent pattern in which programs 
     initiated with limited goals, such as preventing criminal 
     violence or identifying foreign spies, were expanded to what 
     witnesses characterized as ``vacuum cleaners,'' sweeping in 
     information about lawful activities of American citizens.

  The Church committee Senators concluded:

       Unless new and tighter controls are established by 
     legislation, domestic intelligence activities threaten to 
     undermine our domestic society and fundamentally alter its 

  What a strange echo from three decades ago we hear in those words. 
They could have been written yesterday; could have been written 
  Three decades ago, our predecessors in this Chamber, Republicans and 
Democrats, responding to an abuse of power, crafted a wonderfully 
balanced idea between security and liberty. They did it in this very 
Chamber, coming together. They understood that when domestic spying 
goes too far it threatens to kill just what it promises to protect--an 
America secure in her liberty. That lesson was crystal clear 30 years 
ago. Why is it so clouded today?
  Before we entertain the argument that everything has changed since 
those words were written, remember: The men who wrote them had 
witnessed a World War, the Cold War, had seen Nazi and Soviet spying, 
and they were living every day under the cloud of a nuclear holocaust. 
It was indeed a dangerous time. Certainly, the argument that we have to 
take extraordinary measures to protect ourselves against those who 
would do us great injury--those were not easy times. Yet those 
Republicans and Democrats, our predecessors in this Chamber, struck 
that balance and reminded us that our security was important, but it 
needed to be tempered and understood in the context of our freedoms and 
our liberties.
  So I ask this: Who will chair the commission investigating the 
secrets of warrantless spying years from today? Will it be a young 
Senator in the body today who maybe has just joined us in the last 2 
years? Will it be someone not yet elected? What will that Senator say 
when he or she comes

[[Page S6087]]

to our actions, maybe three decades from now, as I just quoted from a 
report 30 years ago, which is so wonderfully written and captures 
exactly the essence of what I am arguing for this evening? What will 
that Senator say when he or she reads about the actions of a Senate 
here--reads in the records how we let outrage after outrage slide with 
nothing more than a promise to stop the next one? I imagine that 
Senator will ask of us: Why didn't they do anything? Why didn't they 
fight back? What happened between the 1970s and the year 2008, that two 
Senates in 30 years time could go from standing up for the rule of law 
and liberty in the face of executive abuses--what happened to that 
Congress that decided 30 years later that they would do just the 
opposite; in fact, retreat from that fight?
  In June of 2008, when no one could doubt any more what this 
administration was doing, why did they sit on their hands and do almost 
nothing? In fact, go further. Why did they grant immunity to companies 
that had engaged in warrantless wiretapping?
  Since the time of the Church Commission, the threats facing us have 
multiplied and grown in complexity, but the lesson has been immutable: 
warrantless spying threatens to undermine our democratic society unless 
legislation brings it under control. In other words, the power to 
invade privacy must be used sparingly, guarded jealously, and shared 
equally between the branches of our Government.
  Or the case could be made pragmatically. As my friend, Harold Koh, 
dean of Yale Law School, recently argued:

       The engagement of all three branches tends to yield not 
     just more thoughtful law but a more broadly supported public 

  Three decades ago, our predecessors in this Chamber embodied that 
solution in the Foreign Intelligence Surveillance Act, the FISA law. 
FISA confirmed the President's power to conduct surveillance of 
international conversations involving anyone in the United States, 
provided that the Federal FISA Court issued warrants ensuring that 
wiretapping was aimed at safeguarding our security and nothing else. 
The President's own Director of National Intelligence, Mike McConnell, 
explained the rationale in an interview last summer:

       The United States did not want to allow [the intelligence 
     community] to conduct . . . electronic surveillance of 
     Americans for foreign intelligence unless you had a warrant, 
     so that was required.

  As originally written in 1978 and as amended numerous times, I might 
add, FISA has accomplished its mission. It has been a valuable--
invaluable tool for conducting needed surveillance of those who would 
do us great harm and those who would harm our country. Every time 
Presidents have come to Congress openly to ask for more leeway under 
FISA, our Congresses have worked with them. Congress has negotiated, 
and together Congress and the executive branch have struck a balance 
that safeguards America while doing its utmost to protect our privacy.
  Last summer, Congress made a technical correction to FISA enabling 
the President to wiretap without a warrant conversations between two 
foreign targets, even if those conversations are routed through 
American computers. For other reasons, I believed that this past 
summer's legislation went too far, and I opposed it. But the point is 
that Congress once again proved its willingness to work with the 
President on FISA.
  Isn't that enough?
  Just this past October and November, the Senate of the U.S. 
Intelligence and Judiciary Committees worked with the President to 
further refine FISA and ensure that, in a true emergency, the FISA 
Court would do nothing to slow down intelligence gathering.
  Wasn't that enough?
  And, as for the FISA Court, between 1978 and 2004, according to the 
Washington Post, the FISA Court approved--and listen to these numbers--
18,748 warrants from 1978 to 2004--18,748 warrants. It rejected 5; 
18,748 warrants were approved; 5 were rejected between 1978 and 2004. 
The FISA Court has sided with the executive branch 99.9 percent of the 
time. Wouldn't you think that would be enough? Is anything lacking? 
Have we forgotten something here? Isn't all of this enough to keep us 
safe? There were numerous amendments in 30 years to a piece of 
legislation to strike the balance between security and liberty.

  Of course, we all know the answer we have received. This complex, 
finely tuned machinery, crafted over 3 decades by 3 branches of 
Government, 4 Presidents, and 12 Congresses, was ignored for 5 long 
years. It was totally ignored. It was a system primed to bless nearly 
any eavesdropping a President could conceive of, and spying still 
happened illegally--18,748 warrants approved from 1978 on; 5 were 
turned down. Yet this administration completely disregarded the FISA 
Court in seeking the warrantless wiretapping by the telecom industry.
  If the shock of that decision has yet to sink in, think of it this 
way: President Bush ignored not just a Federal court but a secret 
Federal court; not just a secret Federal court but a secret Federal 
court prepared to sign off on his actions 99.9 percent of the time. A 
more compliant court has never been conceived. Yet still that wasn't 
good enough.
  I ask my colleagues of this body candidly, and candidly it already 
knows the answer: Is this about security or is it about power? Why are 
some fighting so hard for retroactive immunity? The answer, I believe, 
is that immunity means secrecy, and secrecy means power. It is no 
coincidence that the man who proclaimed ``if the President does it, it 
is not illegal''--Richard Nixon--was the same man who raised executive 
secrecy to an art form. The Senators of the Church committee 30 years 
ago--bipartisan, by the way--expressed succinctly the deep flaw in the 
Nixonian executive: ``Abuse thrives on secrecy,'' they said, and in the 
exhaustive catalog of that report, they proved it.
  In this push for immunity, secrecy, I believe, is at the center of 
it. We find proof in immunity's original version, a proposal to protect 
not just the telecoms, but everyone involved in the wiretapping 
program. Remember that in the original proposal of what is before us 
today, or will be before us, that is what they wanted to immunize--
themselves. The administration asked that everyone be immunized. To 
their credit, the Intelligence Committee rejected that request, but it 
ought to be instructive that the Bush administration requested total 
blanket immunity for everyone involved in that program.
  What does that tell you about their intentions or their motivations? 
Think about it. It speaks to their fear and perhaps their guilt, their 
guilt that they have broken the law and their fear that in the years to 
come they would be found liable or convicted.
  They knew better than anyone else what they had done. They must have 
had good reason to be concerned.
  Thankfully, immunity for the Executive is not part of this bill, and, 
again, I congratulate the committee. But don't ever forget it was asked 
for. That will tell you something about motivations.
  The original proposal tells us something very important, that this is 
and always has been a self preservation bill. Otherwise, why not have 
the trial and get it over with? If the proponents of retroactive 
immunity are right, that the documentation alone is all you need to 
prove legality, the corporations will win in a walk. After all, in the 
official telling, the telecoms were ordered in documents to help the 
President spy without a warrant, and they patriotically complied. We 
have even heard on this floor the comparison between the telecom 
corporations to the men and women laying their lives on the line in 
Iraq and Afghanistan.
  But ignore comparison which, frankly, I find deeply offensive. Ignore 
for a moment the fact that in America we obey the laws, not the 
President's orders. Ignore that not even the President has the right to 
scare or bully you into breaking the law, though it seems that tactic 
has proven surprisingly fruitful. Ignore that the telecoms were not 
unanimous. One of them, Qwest, wanted to see the legal basis for the 
order, never received it, and so refused to comply. Not everyone 
decided that documentation alone was a legal justification for 5 years 
of vacuuming up the private information of American citizens.
  Ignore that a judge presiding over the case ruled:

       AT&T cannot seriously contend that a reasonable entity in 
     its position could have believed that the alleged domestic 
     dragnet was legal.

[[Page S6088]]

  Ignore all of that: If the order the telecoms received was legally 
binding then they have a easy case to prove. The corporations only need 
to show a judge the authority and the assurances they were given and 
they will be in and out of court in 5 minutes. If the telecoms are as 
defensible as the President says, why doesn't the President let them 
defend themselves? If the case is so easy to make, why doesn't he let 
them make it?
  It can't be that they are afraid of leaks. Our Federal court system 
has dealt for decades with the most delicate national security matters, 
building up an expertise in protecting classified information behind 
closed doors, ex parte and in camera. We can expect no less in these 
cases. No intelligence sources need be compromised. No state secrets 
need to be exposed. After litigation at both the district court and 
circuit court levels, no state secrets have been exposed.
  In fact, Federal district court judge Vaughn Walker--a Republican 
appointee, I might point out; the quotes are from him--has already 
ruled that the issue can go to trial without putting state secrets in 
jeopardy. Walker reasonably pointed out--Ronald Reagan's appointee to 
the bench, I point out--the existence of the terrorist surveillance 
program is hardly a secret at all.

       The Government has [already] disclosed the general contours 
     of the ``terrorist surveillance program,'' which requires the 
     assistance of a telecommunications provider.

  As the state secrets privilege is invoked to stall these high-profile 
cases, it is useful to consider that privilege's history. In fact, the 
privilege was tainted at its birth by a President of my own party, 
Harry Truman. In 1952, President Truman successfully invoked the new 
privilege to prevent public exposure of a report on a plane crash that 
killed three Air Force contractors. When the report was finally 
declassified, 50 years later I might add, decades after anyone in the 
Truman administration was within reach, it contained no state secrets 
at all, only facts about the repeated maintenance failures that would 
have seriously embarrassed some important people. So the state secrets 
privilege began its career, not to protect our Nation, but to protect 
some powerful people.
  In his opinion, Judge Walker argued, even when it is reasonably 
grounded--let me quote him:

       . . . the state secrets privilege still has its limits. 
     While the court recognizes and respects the executive's 
     constitutional duty to protect the nation from threats, the 
     court also takes seriously its constitutional duty to 
     adjudicate the disputes that come before it. To defer to a 
     blanket assertion of secrecy here would be to abdicate that 
     duty, particularly because the very subject matter of this 
     litigation has been so publicly aired.

  Again, that is not some wild-eyed liberal judge drawing the 
conclusion in this case. That is a sober conservative judge who reminds 
us of the balance that is necessary; why there is a coequal branch 
called the judiciary, where that body, not elected representatives in a 
voting Chamber, should determine the legality of this action taken by 
these companies.
  He went on to say--the judge's words:

       The compromise between liberty and security remains a 
     difficult one. But dismissing this case at the outset would 
     sacrifice liberty for no apparent enhancement of security.

  That is a judge reminding this body that to suggest somehow we grant 
blanket immunity to these companies is to dismiss this case at the 
outset, as he points out, sacrificing liberty with no apparent 
enhancement of our security.
  And that ought to be the epitaph of this administration: 
``sacrificing liberty for no apparent enhancement of our security.'' 
Worse than selling our soul, we are giving it away for free.
  It is equally wrong to claim that failing to grant this retroactive 
immunity will make the telecoms less likely to cooperate with 
surveillance in the future. Baloney. I do not believe it. The truth is, 
after the 1970s, FISA has compelled telecommunications companies to 
cooperate with surveillance when it was warranted. What is more, it 
immunizes them. It has done that for more than a quarter of a century. 
So cooperation in warranted wiretapping is not at stake today, and 
despite the claims of supporters of immunity, it never has been. 
Collusion in warrantless illegal wiretapping is. And the warrant makes 
all the difference, because it is precisely the court's blessing that 
brings Presidential power under the rule of law, even when that 
warrant, as we permit, is granted after the surveillance has already 
begun, as you can under the FISA law.
  In sum, we know that giving the telecoms their day in court, giving 
the American people their day in court, would not jeopardize an ounce 
of our security. It does jeopardize our liberty. And it would only 
expose one secret: the extent to which the rule of law has been 
trampled upon. Does documentation qualify as legal authority? Again, 
that is not a matter for a majority in this Chamber to decide by a 
vote. It is a matter for our courts to determine: Were these letters 
that were transmitted--was there a legal justification? Why didn't the 
administration go to the FISA Court, where 18,748 requests have been 
made since 1978 and granted, and only 5 rejected, a secret Federal 
court where a warrant could have been granted after the fact of the 
surveillance actually having begun? Why didn't they do that? Why did 
they send out letters? Why didn't they go before that court? I am not 
concluding they did it wrongfully, but I don't know they didn't do it 
wrongfully. That ought to be determined by the courts of law, not to be 
above the law.
  That is the choice at stake today: Will the secrets of the last years 
remain closed in the dark, as they will once we grant this immunity, or 
will they be open for generations to come? What will they think of us? 
I revere what this Congress did in 1978, Democrats and Republicans, 
standing up to executive powers and abuses. They fashioned a law that 
granted us greater protection over those who would do us harm while 
simultaneously protecting our rights and liberties. What a great 
Senate. What a great Congress that had the courage to stand up and put 
aside partisan differences and stand up for 200 more years of this 
Nation's history of liberty, of freedom.
  What will be said about this Congress? When a future generation looks 
back at this hour, what did we do when faced with a similar fact 
situation and were confronted with that choice? Or will we be open to 
the generations to come, as I said, to our successors in this Chamber 
so they can prepare themselves to defend against future outrages, as 
they will surely occur, of power and usurpations of law from future 
Presidents of either party? As I stand here this evening, I promise you 
it will happen. It has never not happened in the past; it will in the 
future. That is why we have these shared powers to maintain that 
balance. We are going to concede that by suggesting that in this most 
important of all cases we are going to grant retroactive immunity. For 
what? For what? Can anyone even begin to make the case that our 
security gets enhanced because we deprive Americans who feel they may 
have been wronged by determining whether the actions taken by these 
companies at the behest of an administration were legal?
  Now, 30 years after the Church committee, history has repeated 
itself. If those who come after us are to prevent it from happening 
again, they need the full truth. That is why we must not allow these 
secrets to go quietly into the night. I am here this evening because 
the truth is no one's private property; it belongs to every one of us. 
It demands to be heard.
  ``State secrets,'' ``patriotic duty,'' those, as weak as they are, 
are the arguments the telecoms' advocates use when they are feeling 
high-minded. When their thoughts turn baser, they make their arguments 
as amateur economists.
  Here is how Mike McConnell put it:

       If you play out the suits at the value they're claimed, it 
     would bankrupt these companies. So we have to provide 
     liability protection to these private sector entities.

  To begin with, that is a clear exaggeration. We are talking about 
some of the wealthiest, most successful companies in America. Some of 
them have continued to earn record profits and sign up record numbers 
of subscribers at the same time as this very public litigation, totally 
undermining the argument that these lawsuits are doing the telecoms 
severe reputational damage, as Mike McConnell suggested. Companies of 
that size could not be completely wiped out by anything but the most 
exorbitant and unlikely judgment. To assume that the telecoms

[[Page S6089]]

would lose, and that their judges would then hand down such back-
breaking penalties, is already to take several leaps.
  Opponents of immunity, including myself, have stated that we would 
support a reasonable alternative to a blanket retroactive immunity. No 
one seriously wants to cripple the telecommunications industry. The 
point is to bring checks and balances back to domestic spying. 
Accepting that precedent would hardly require a crippling judgment. It 
is much more troubling, though, that the Director of National 
Intelligence would even suggest such an argument. I might understand if 
the Secretary of the Treasury made that case, or some economist at the 
World Blank or the IMF or the Federal Reserve. But to have the 
Intelligence Director of our country suggest liability protections for 
private sector entities, even to speak of that, is rather incredible. 
This is not the Secretary of Commerce we are talking about but the head 
of our Nation's intelligence efforts.
  For that matter, how does that even begin to be relevant to letting 
this case go forward? Since when did we throw out entire suits because 
the defendants stood to lose too much? It astounds me that some can 
speak in the same breath about national security and bottom lines. 
Approve immunity, and Congress will state clearly: The richer you are, 
the more successful you are, the more lawless you are entitled to be. A 
suit against you is a danger to the Republic.
  And so, at the rock bottom of its justifications, the telecoms' 
advocates are essentially arguing that immunity can be bought. The 
truth is, of course, exactly the opposite, or it should be. The larger 
the corporation, unfortunately, the greater the potential for abuse.
  No one suggests that success should make a company suspect. Companies 
grow large and essential to our economy because they are excellent at 
what they do, and most of them are overwhelmingly well managed. But the 
size and wealth open the realm of possibility for abuse far beyond the 
scope of the individual.
  After all, if the allegations are true, we are talking about one of 
the most massive violations of privacy in American history. Shouldn't 
there be some retribution or penalty? If reasonable search and seizure 
means opening a drug dealer's apartment, the telecoms' alleged actions 
would be the equivalent of strip-searching everyone in the building, 
ransacking their bedrooms, and prying up all of the floorboards.
  The scale of these corporations opens unprecedented possibilities for 
abuse, possibilities far beyond the power of the individual. What the 
telecoms have been accused of could not be done by one man or even 10. 
It would be inconceivable without the size and resources of a large 
corporation, the same size that makes Mike McConnell fear the 
corporation's day in court. That is the massive scale we are talking 
about. And that massive scale is precisely why no corporation must be 
above the law.

  On that scale, it is impossible to plead ignorance. As Judge Walker 

       AT&T cannot seriously contend that a reasonable entity in 
     its position could have believed that the alleged domestic 
     dragnet was legal.

  Again, Ronald Reagan's appointee to the Federal bench. But the 
arguments of the President's allies sink even lower. Listen to words of 
a House Republican leader spoken on FOX News. They are shameful:

       I believe that they deserve immunity from lawsuits out 
     there from typical trial lawyers trying to find a way to get 
     into the pockets of American companies.

  Of course, some of the ``typical greedy trial lawyers'' bringing 
these suits actually work for a nonprofit. And the telecoms that some 
want to portray as pitiful little Davids actually employ hundreds of 
attorneys, retain the best corporate law firms, and spend multimillion 
dollar legal budgets every year.
  But if the facts actually mattered to immunity supporters, we would 
not be here. For some, the prewritten narrative takes precedence far 
above the mere facts; and here it is the perennial narrative of the 
greedy trial lawyers.
  With that, some can rest content. They can conclude that we were not 
ever serious about law, or about privacy, or about checks and balances; 
it was all about money all along.
  There can no longer be any doubt: One by one the arguments of the 
immunity supporters, of the telecoms' advocates, fail.
  I wish to spend, if I could, a few minutes reviewing in detail those 
claims and their failures. I will put up some of these quotes here for 
  The first argument is: The President has the authority to decide 
whether the telecoms should be granted immunity.
  The facts are the judiciary, not the executive branch, should be 
allowed to determine whether the President of the United States has 
exceeded his powers by obtaining from the telecoms wholesale access to 
domestic communications of millions of ordinary citizens. That is one 
of the arguments of those who argue that the granting of immunity is a 
Presidential prerogative. I argue quite the opposite. The court should 
not simply be in the business of certifying that the companies received 
some form of documentation, some letters that they received; rather, 
they should be allowed to evaluate the validity of the legal arguments 
attested to in the document. Was the request legal or not? Is a letter 
a legal document that requires you to cooperate?
  Remember, the administration's original immunity proposal protected 
everyone, as I said a moment ago, involved in the wiretapping program, 
not just the companies. In their original proposal to the Congress, 
they wanted to immunize themselves as well. As I said, thankfully the 
committee disregarded that request. They made it. But, again, I think 
that is instructive.
  The second argument: Immunity supporters claim that only foreign 
communications were targeted, not Americans' domestic calls.
  And here, litigation against the telecom companies is based upon 
clear, firsthand evidence, authenticated by those corporations in 
court. Every e-mail, every text message, every phone call, foreign or 
domestic carried over the massive fiber optic links of 16 separate 
companies, routed through AT&T's Internet hub in San Francisco, have 
been knowingly diverted by AT&T by means of multiple splitters into a 
secret room controlled exclusively by the NSA. There may be other such 
rooms as well.
  This was given to the courts by the individual who was involved 
directly in the program. So the argument was only conversations between 
foreign targets that they have argued is completely and factually 
  The third argument immunity supporters make is that: A lack of 
immunity will make the telecoms less likely to cooperate.
  Again, I made this case a moment ago. But for more than 25 years the 
FISA legislation has compelled the telecommunications companies to 
cooperate. This is not a choice if, in fact, the FISA courts demanded 
it. In fact, when they have done that, what they do is they also 
immunize, so they can protect these companies against future litigation 
that can occur from people who claim they have done something wrong in 
the process.
  But to argue somehow these companies might never again be helpful is 
to not understand existing law. For 25 years they have, in fact, been 
compelled to comply and, in fact, we provided the immunity when they 
have done so.
  Why in this case, after 25 years, did the Bush administration 
completely disregard this? And instead of compelling their compliance, 
and providing the immunity they would have gotten immediately, they 
decided to send a letter instead, without any legal documentation, 
without any argument at all. But they are relying on that thin reed of 
a letter saying, ``You should do this.'' ``We want you to do this.''
  Not all of them complied. Qwest said: Wait a minute, that is not 
legal. A letter is not enough. They did not comply, and obviously they 
did not get involved in the program and they were not asked to do so 
further. So I am rather mystified. Shouldn't we know the answer to that 
question? Is it wrong for us to say: I think you ought to explain why 
you think that was legal?
  Why was a document legal? The fact that we are immunizing, in effect, 
through retroactive immunity, their actions, what sort of precedent are 
we setting? That we are in a sense, if you

[[Page S6090]]

will, almost sanctioning that action. While we are saying it should 
never happen again, I will almost guarantee you that someday someone 
will do something like it and will refer to this Congress's decision 
to, in effect, sanction the use of letters alone without documentation 
to determine the legality of their actions.
  The fourth argument: Immunity supporters argue that telecoms can't 
defend themselves without exposing State secrets. This is highly 
offensive. Again, Judge Walker has already ruled the issue can go to 
trial. In fact, he was incensed, as I quoted earlier.
  ``The Government,'' he said, ``has [already] disclosed the general 
contours of the `terrorist surveillance program,' which requires the 
assistance of a telecommunications provider.''
  The suggestion that State secrets--I know the Presiding Officer is a 
former attorney general, and I am preaching to the choir on these 
matters, but I am confident he knows that for decades Federal courts 
meeting ex parte in camera have religiously guarded State secrets when 
they have been asked to make judicial decisions about matters involving 
information that could fall into the area of State secrets. I don't 
know of any example where leaks have occurred. So the suggestion that 
if you allow this to go into Federal court to determine the legality of 
this action, actions that now are publicly well known, that somehow we 
are going to have a leak of State secrets, there is not a scintilla of 
evidence that has ever been the case. It is a phony argument to suggest 
that somehow State secrets would be jeopardized.
  Five: Immunity supporters claim they are already protected by common 
law principles. In this case, of course, the fact is that common law 
immunities do not trump specific legal duties imposed by statute, such 
as the specific duties Congress has long imposed on the 
telecommunications companies to protect customer privacy and records. 
In the pending case against AT&T, the judge already has ruled 
unequivocally that AT&T cannot seriously contend that a reasonable 
entity in its position could have believed the alleged domestic dragnet 
was legal. Even so, the telecommunications company defendants can and 
should have the opportunity to present these defenses to the courts, 
and the courts--not Congress preemptively--should decide whether they 
are sufficient. Again, common law does not trump specific legal duties 
imposed by statute.
  The sixth argument immunity supporters claim is that leaks from the 
trial might damage national security. I have already talked about this. 
I said that the Federal courts over the years have handled matters very 
well, and this is a red herring. When, if ever, then, can we challenge 
the legality of actions in Federal courts? If the case is made in this 
case, if this is upheld and we buy into that argument on this matter, 
which is already publicly known but also, in a sense, siding, if you 
will, with this argument by granting retroactive immunity, then in 
cases where, in fact, national security information may, in fact, be at 
risk, I suspect the same argument will be made, and they will be 
relying on the actions taken by the Senate, in this case, involving the 
telecom companies. This is the kind of precedent-setting action that 
could occur by our vote to grant retroactive immunity, if we buy into 
this very argument, which is a dangerous argument, indeed, to suggest 
somehow that our Federal courts are incapable of providing the kind of 
security where national security leaks could occur. We can be 
increasingly confident that these cases will not expose State secrets 
based on history.
  The seventh argument made by the supporters of this effort to grant 
retroactive immunity, they claim that litigation will harm the telecoms 
by causing them reputational damage. I hesitate to even make an 
argument against this, it is so offensive to me. The fact that the 
Director of the National Security Agency would suggest somehow there 
was a financial loss to the companies if we went further with this, 
that is not the kind of argument I expect to be made by someone who is 
in charge of intelligence. That is an economic argument. It doesn't 
hold up, in my view. We are talking about wealthy companies. But even 
so, I don't know if anyone is suggesting that these actions, if, in 
fact, they prove to be true, that, in fact, there was an illegal action 
taken here, would necessarily warrant an overexcessive judgment that 
would somehow cripple these 17 companies from their financial well-
  There is plenty of evidence that they are doing tremendously well. 
But the idea somehow that a company ought not to be sued, that a 
plaintiff ought not to bring a case because you might win and there 
might be damage financially, that is a ludicrous argument on its face 
to make when we are talking about millions of people's rights of 
privacy being invaded for 5 years by 17 companies vacuuming up every 
bit of information, that you might be damaged because the plaintiffs 
might win. It is a foolish argument and a dangerous one to make as 
  The eighth argument, immunity supporters claim the lawsuits will 
bankrupt the companies. It is the same argument as I made about 
financial damage. The fact is, if we accept that premise about 
financial damage or reputational damage, if we could conceive of a 
corporation so wealthy, so integral to our economy that its riches 
place it outside the law altogether, that is a frightening concept, and 
I hope it will be rejected by our colleagues. Ensuring a day in court 
is not the same as ensuring a verdict. When that day comes, if it 
does--and I doubt it will, in light of the votes that have been cast 
in the past--I have absolutely no investment in a verdict either way. 
But I am bothered by it. I am bothered that the administration didn't 
go to the FISA Court, as others had 18,748 times since 1978, and on 
five occasions the warrants were rejected, and in 18,748 cases, the 
warrants were granted, that this administration decided not to go that 
route, I have my doubts. But nonetheless, what I am calling for is not 
a verdict by this body. All I am calling for is to allow a judgment to 
be rendered by a court of law, allow plaintiffs to make their case, 
allow a Federal judge in that coequal branch of government to determine 
whether what occurred was legal. If it was legal, case over. If it was 
not, then allow the plaintiffs to make their case and be rewarded 

  But by a vote of 51 to 49 or whatever the vote may be here, we are 
going to superimpose our judgment for a legal argument. I think letting 
a political judgment replace a legal judgment is a dangerous precedent 
indeed. This is a big matter. We ought to have the courage to stand up 
to this administration, after a litany of abuses over the last 7 years. 
As I said some time ago, if this had been for a week, a month, a year, 
after 9/11, I would not be here tonight. I am a reasonable, practical 
person. The emotions were high; fears were great after we were 
attacked. The fact that someone might have rushed in and done something 
like this, I might not like it, I may worry about it, but I wouldn't 
prejudge it. Emotions could be such that one would take those actions. 
But this went on for 5 years and would still be going on if a 
whistleblower hadn't stood and said: This is what is happening. And it 
was reported widely in the national media. That is the only reason it 
stopped. If not, it would be still going on. So it wasn't one of these 
early events that can sometimes happen in which reasonable people ought 
to be able to step back and say: I understand why that happened.
  If we were talking about an administration that had been upholding 
the rule of law over the last 7 years or had been defending it, I might 
also not be standing here. But how many lessons do we have to learn 
about an Attorney General politicizing U.S. attorneys, rendition, 
torture, walking away from habeas corpus, walking away from the Geneva 
Conventions? How many more examples do we have to have of how this 
administration regarded the rule of law? And yet at the end of all 
that, within months of this administration leaving town, this body is 
going to say: We are going to side with the administration, grant 
immunity, and we will never find out what went on here. Why did this 
crowd seek immunity for itself, if it wasn't fearful about a judgment 
or a court of law examining what happened here? When letters became the 
legal basis rather than going to the very court that had been around 
for 30 years, that had provided warrants over and over again in 99.9 
percent of the cases, why did this administration decide not to go that 
route and seek that

[[Page S6091]]

kind of a warrant from the very secret court established to strike that 
balance between the needed security and surveillance we should have and 
balancing those rights so the judgments could be rendered?
  Just as it would be absurd to declare the telecoms clearly guilty, it 
would be equally absurd to close the case in Congress without a 
decision. That is immunity.
  Throughout this debate, telecoms' advocates have needed to show not 
just that they were right but that they are so right and that they are 
so far beyond the pale that we can shut down the argument right here 
and now with a vote, grant them immunity. That is a burden they have 
clearly not met, in my view, in any of the arguments, all eight of 
them, that they have made. They cannot expect to meet it when a large 
majority of our colleagues who will make that decision have not even 
seen the secret documents that are supposed to prove the case for 
retroactive immunity.
  My trust is in the courts, in the cases argued openly, in the judges 
who preside over them, and in the juries of American citizens who 
decide them. They should be our pride, not our embarrassment. They 
deserve to do their jobs. That is what the Founders created. It has 
been a great system of checks and balances, coequal, three coequal 
branches of Government--an executive, a legislative, and a judicial 
branch. We have an executive branch that took action. We are going to 
have a legislative branch that is going to sanction it by granting 
immunity without ever allowing that coequal branch of Government to 
determine the legality of their actions. We are depriving what the very 
Founders of our country insisted upon.
  This isn't about being a Democrat, a Republican, a liberal or a 
conservative. It is about whether you understand the rule of law, that 
no man, not even the President, is above it. Whether this President was 
of my party or anyone else's, I would stand here with the same degree 
of passion in making this case. A case I know I have lost in the past 
but I care so deeply about that I want my children and my grandchildren 
one day to know that their father and grandfather at this moment stood 
for the rule of law. And I believe my colleagues, if given the chance 
to think about this, will reach the same conclusion.
  This is one of those moments. They don't happen very often, but they 
do happen here. We have learned about them only after the fact too 
often. But this one is before us as it has been over the last number of 
months. We owe it not only to ourselves but to future generations to 
stand for these timeless principles of the rule of law, liberty, and 
security. As complex, as diverse, as relentless as the assault on the 
rule of law has been, our answer to it is a simple one. Far more than 
any President's lawlessness, the American way of justice remains deeply 
rooted in our character that no President can disturb.
  So on this evening, I am full of hope, on a dark day, when it may 
seem we are going to lose this case once again, I would like to have 
faith that we can unite security and justice because we have already 
done it. It is not a choice, one or the other. It can never be that. 
That is a false choice and a false dichotomy. Justice and security is 
what our forebears have given us, what our predecessors have struggled 
with, and which we now must wrestle with ourselves. It is never 
perfect. There is always one side maybe a bit more weighty than the 
other, but it is our responsibility to try and strike that balance, to 
keep us secure in the face of those who would do us great harm and to 
do so at a time without giving up our rights and liberties. To do so is 
to change the very nature of who we are as a people. To succumb to the 
fears of those who would suggest that you have to make choices about 
being more secure or being free, I don't believe that.
  In fact, I think if we give up freedoms, we become far less secure 
and far less safe. That is the judgment we must now make, whether we 
can be secure and free and guarantee those liberties to go forward.
  My father was the executive trial counsel at the Nuremberg trials in 
1945 and 1946. I have never forgotten the example he set, as Justice 
Robert Jackson said in the opening statement at the Nuremberg trials, a 
statement, by the way, that my parents made us memorize as children 
because it captured the essence of the Nuremberg trials. The rule of 
law is what motivated those who insisted upon that trial. The 
overwhelming majority of people did not want a trial. Why should you 
spend the money giving these 21 defendants a lawyer? Fifty-five million 
people had died at the hands of the Nazis and their allies; 6 million 
Jews had been incinerated in the concentration camps; 5 million others 
had the same fate befall them because of their political affiliation, 
their ethnicity, their sexual orientation; 11 million people 
incinerated; 45 million died at their hands. Why in the world would you 
ever give them a trial?
  Why not, as Winston Churchill suggested, just line them up and shoot 
them? Just line them up and shoot them. They did not deserve civility. 
But Robert Jackson; Henry Stimson, the Secretary of War under Franklin 
Roosevelt--a Republican, I might add; the only one in Roosevelt's 
Cabinet--Samuel Rosenman, a great speechwriter for Franklin Roosevelt; 
Robert Jackson, a Supreme Court Justice, and a handful of others stood 
up and said: No, that war was not about treasury or treasure or land, 
it was about values and principles, and the principle of the rule of 
law is something we stood for.
  So despite all of the appetite for vengeance, we are not going to 
give these defendants that which they gave to their victims. We are 
going to prove the difference. We are going to give them that which 
they never gave their victims. They are going to get a day in court. 
They are going to live with the rule of law.
  Robert Jackson, speaking to that Court, in the summer of 1945, said 
the following, which I memorized years ago. Speaking about the Soviet 
Union, the French, the British, and ourselves, he said the following:

       That four great nations, flushed with victory and stung 
     with injury, stay the hand of vengeance and voluntarily 
     submit their captive enemies to the judgment of the law is 
     one of the most significant tributes that Power has ever paid 
     to Reason.

  It is a remarkable sentence, and it captured the essence of 
Nuremberg--the rule of law. From that experience, America led the way 
in creating the structures in architecture that gave us almost 70 years 
of global peace. The IMF, the World Bank, Bretton Woods, the expansion 
of the United Nations, NATO--all of those institutions occurred because 
of the moral high ground we achieved by insisting upon the rule of law.
  It was Nuremberg, in many ways, that conjured up the image of who we 
were as a people. Compare that with the words ``Guantanamo,'' ``Abu 
Ghraib,'' ``renditions,'' ``torture,'' ``habeas corpus,'' ``walking 
away from the Geneva Conventions.'' This is not who we are. Nuremberg 
was who we are, not Guantanamo, not giving retroactive immunity where 
the rule of law is being abused, or potentially being abused. That is 
why we are here.
  Each generation has been asked to defend these principles and values, 
and each generation in its own way has done that. I believe our 
generation can and must as well. Therefore, the challenge before us is 
not a simple one, but an easy one, in my view; that is, to stand up for 
this principle.
  The world is not going to collapse, the sky is not going to fall if 
some companies have to face some plaintiffs and explain why they 
vacuumed up all their private information for more than 5 years. What 
was the legal justification for that action? To grant retroactive 
immunity would, in fact, do just that.
  So what is the tribute that Power owes to Reason? That America stands 
for a transcendent idea, the idea that laws should rule, and not men, 
the idea that the Constitution does not get suspended for vengeance, 
the idea that this Nation should never tailor its eternal principles to 
the conflict of the moment, because if we did, we would be walking in 
the footsteps of the enemies we despised.
  The tribute that Power owes to Reason is due today as well. I know we 
can find the strength to pay it. And if we cannot, we will have to 
answer for it, I fear.
  There is a famous military recruiting poster that comes to mind. A 
man is sitting in an easy chair with his son

[[Page S6092]]

and daughter on his lap, after some future war has ended. His daughter 
is asking him, ``What did you do in the war?'' And his face is shocked 
and shamed because he knows he did nothing.
  My little daughters, Grace and Christina, are 6 and 3. They are 
growing up--I hope sound asleep at this hour, as I speak in the late 
night hours here, but they are growing up in a time of two great 
conflicts: one between our Nation and its enemies, and another between 
what is best and worst in our American soul. And someday soon, I know I 
am going to hear that question: What did you do at the time when this 
conflict was emerging? What side did you take? I want more than 
anything else, when that day comes, to give the right answer, that I 
stood for the rule of law.
  That question is coming to each and every one of us in our own way. 
Every single one of us will be judged by a jury from whom there is no 
hiding: our sons and daughters and grandchildren. Someday soon, they 
will read in their textbooks the stories of a great nation--one that 
threw down tyrants and oppressors for two centuries, one that rid the 
world of Nazism and Soviet communism, one that proved that great 
strength can serve great virtue, that right can truly make might.
  And then they will read how, in the early years of the 21st century, 
that nation could have lost its way. We do not have the power to strike 
that chapter. But we cannot go back. We cannot un-destroy the CIA's 
interrogation tapes. We cannot un-pass the Military Commissions Act. We 
cannot un-speak Alberto Gonzales's testimony before the Congress. We 
cannot un-torture innocent people. We, perhaps, sadly and shamefully, 
cannot stop retroactive immunity. We cannot undo anything that has been 
done in the last 6 years for the cause of lawlessness and fear. We 
cannot block out that chapter. But we can begin the next chapter, even 
this evening, even in the days to come, as we debate this issue. And 
let its first words read: Finally, in the month of June of 2008, the 
Senate of the United States--Democrats and Republicans--said: Enough. 
Enough is enough.
  I implore my colleagues to write it with me. I implore my colleagues 
to vote against retroactive immunity and vote against cloture when that 
opportunity arrives in the next day or so. I think it would be a 
mistake to grant it. I think we can do better. I think we can reform 
the law. But we ought not to have any decision be above the law, as is 
the danger here.
  Mr. President, I want to, if I can, share with my colleagues, and 
those who may be listening to all this, some articles because their 
eloquence is far greater than mine when they talk about the importance 
of all of this, and they are worth noting and reading as we examine 
this question before us.
  There have been editorials and others that have addressed this issue. 
There is an editorial in the New York Times from June 18, entitled: 
``Mr. Bush v. the Bill of Rights.''

       In the waning months of his tenure, President Bush and his 
     allies are once again trying to scare Congress into expanding 
     the president's powers to spy on Americans without a court 
       This week, the White House and Democratic and Republican 
     leaders on Capitol Hill hope to announce a ``compromise'' on 
     a domestic spying bill. If they do, it will be presented as 
     an indispensable tool for protecting the nation's security 
     that still safeguards our civil liberties. The White House 
     will paint opponents as weak-kneed liberals who do not 
     understand and cannot stand up to the threat of terrorism.
       The bill is not a compromise. The final details are being 
     worked out, but all indications are that many of its 
     provisions are both unnecessary and a threat to the Bill of 
     Rights. The White House and the Congressional Republicans who 
     support the bill have two real aims. They want to undermine 
     the power of the courts to review the legality of domestic 
     spying programs. And they want to give a legal shield to the 
     telecommunications companies that broke the law by helping 
     Mr. Bush carry out his warrantless wiretapping operation.
       The Foreign Intelligence Surveillance act, or FISA, 
     requires that government to get a warrant to intercept 
     communications between anyone in this country and anyone 
     outside it. The 1978 law created a special court that has 
     approved all but a handful of the government's many thousands 
     of warrant requests.
       Still, after Sept. 11, 2001, Mr. Bush bypassed the FISA 
     court and authorized the interception of international calls 
     and e-mail messages without a warrant. Then, when The Times 
     disclosed the operation in late 2005, Mr. Bush claimed that 
     FISA did not allow the United States to act quickly enough to 
     stop terrorists. That was nonsense. FISA always gave the 
     government the power to start listening and then get a 
     warrant--a grace period that has been extended since Sept 11.
       More fundamental, Mr. Bush's powers do not supersede laws 
     passed by Congress or the constitution's protections against 
     unreasonable searches and seizures.
       The ensuing debate did turn up an Internet-age problem with 
     FISA: It requires a warrant to eavesdrop on foreign 
     communications that go through American computers. There was 
     an easy fix, but when Congress made it last year, the White 
     House muscled in amendments that seriously diluted the 
     courts' ability to restrain the government from spying on its 
     own citizens.
       That law expires on Aug. 3, and Mr. Bush is demanding even 
     more power to spy. He also wants immunity for the 
     telecommunications companies that provided the government 
     with Americans' private data without a warrant after Sept. 
       Lawsuits against those companies are the best hope of 
     finding out the extent of Mr. Bush's lawless spying. But 
     Democratic leaders in Congress are reported to have agreed to 
     a phony compromise drafted by [one of our colleagues], the 
     Republican vice chairman of the Intelligence Committee.
       Under the so-called compromise, the question of immunity 
     would be decided by federal district court--a concession by 
     Mr. Bond [our colleague from Missouri], who originally wanted 
     the FISA court, which meets in secret and is unsuited to the 
     task, to decide. What is unacceptable, though, is that the 
     district court would be instructed to decide based solely on 
     whether the Bush administration certifies that the companies 
     were told the spying was legal. If the aim is to allow a 
     court hearing on the president's spying, the lawsuits should 
     be allowed to proceed--and the courts should be able to 
     resolve them the way they resolve every other case. 
     Republicans, who complain about judges making laws from the 
     bench, should not be making judicial decision from Capitol 
       This week, House and Senate leaders were trying to allay 
     the concerns of some lawmakers that approving the immunity 
     would be tantamount to retroactively declaring the spying 
     operation to have been legal. Those lawmakers are right. 
     Granting the corporations immunity would send that exact 
       The new bill has other problems. It gives the government 
     too much leeway to acquire communications in the United 
     States without individual warrants or even a showing of 
     probable cause. It greatly reduces judicial review, and it 
     would remain in force for six years, which is too long.
       If Congress cannot pass a clean bill that fixes the one 
     real problem with FISA, it should simply extend the temporary 
     authorization. At a minimum . . .

  It talks about what other steps can be taken.
  There are several other articles I want to share with colleagues, but 
let me also say to my colleagues, we are in a postcloture environment 
here on the housing bill. We will be in cloture until tomorrow evening 
on the 30 hours required under the housing bill, unless some 
intervening action is taken. I know we are supposed to consider voting 
on cloture on this bill sometime tomorrow morning. I reserve the right 
to use whatever vehicle is available to me. While I am upset we are not 
dealing with the housing bill--I believe that is a priority on which 
Americans expect something to be done. You have 8,400 people filing for 
foreclosure every day in this country. It is a massive economic issue 
that is crippling the livelihood and the future wealth and security of 
too many American families. I would object to any unanimous consent 
request to go to the FISA bill. If we do get to a cloture motion, I 
will be urging my colleagues to vote against cloture, to send this bill 
back to the Intelligence Committee, the Judiciary Committee, and craft 
some reforms of FISA, but stay away from this retroactive immunity. It 
is not needed. It is unnecessary. It is shameful it is even being 
requested in this bill for all the reasons I have identified earlier.
  Let me read, if I can, from the New Jersey Star-Ledger. Again, this 
paper calls for rejecting the wiretap bill, as well. This editorial 

       The House of Representatives is to vote today on a 
     wiretapping bill that would give some of America's biggest 
     and richest companies a get-out-of-jail card for breaking the 
     law and that also would help the government carry out 
     unsupervised snooping for years in the future.
       But Verizon and other telecommunications companies should 
     not be rewarded with immunity against lawsuits for agreeing 
     to perform President Bush's illegal eavesdropping. They 
     should answer for their actions in court, just like any other 
       And Congress should not gut the current law that says a 
     federal judge's review is essential to avoid the very abuses 
     of power that Bush's White House embraced.

[[Page S6093]]

       The House ``compromise'' wiretapping bill is not a 
     compromise at all. It would give the telecommunications 
     companies absolute immunity from the suits pending against 
     them for wiretapping if they can simply show that the Bush 
     administration told them at the time that the snooping was 
     legal. Which everyone agrees the administration did indeed 

  It is not a debate. They sent letters. The question is, were the 
letters and the documentation a legal justification? We already know 
they sent the letters, so all they are providing for us in here is 
tantamount to acknowledging what we already know occurred. What we are 
not getting to is the legal conclusion that those documents not seeking 
the warrants of the FISA court was a legal justification for their 
actions. It does not take a legal scholar to see the danger in this 
approach. It means that the law becomes whatever the President wants it 
to be, never mind what the statutes or even the Constitution may say. 
That is why the courts exist. That is why you have Federal judges to 
make those determinations.
  This editorial goes on to say:

       The President also very much wants the other major part of 
     the new wiretapping law, the section that amounts to an 
     aggressive broadening of federal surveillance powers. The 
     provisions would emasculate the ability of federal judges to 
     review wiretapping orders, especially if the orders were for 
     a general information ``dragnet'' as opposed to targeting 
     specific persons.
       Snooping government agents would be officially free to plug 
     into phone and data lines and copy and review untold millions 
     of calls and e-mails, all without serious adult supervision. 
     Effective checks and balances in government this is not.
       Bush and Attorney General Michael Mukasey want the new 

  The editorial goes on to say--

     and they want it now. House Members--

  Talking about the House-passed bill--

     should not give it to them. Government wiretapping is now 
     operating under a series of interim laws set to expire in 
     early August.
       There is no evidence that these interim rules are too 
     anemic to protect the Nation for a while longer. Congress 
     should extend them. If the wiretapping law needs major 
     revisions, these can be done under a new President.
       One who, unlike Bush, didn't begin a secret, illegal 
     wiretapping months before September 11, 2001.

  This is from the Denver Post. I wonder why I chose that one to read 
to the Presiding Officer, my good friend and colleague from Denver, CO. 
I suspect he may have seen this one himself, so I apologize if I am 
reading an editorial he has already probably read himself. This is 
dated June 5. ``Another Dose of Courage Needed on FISA'' is the title.

       Congress once again is discussing a compromise on a long-
     stalled rewrite of the Foreign Intelligence Surveillance Act 
     with the idea of getting something passed before its August 
       The White House assuredly will play the national security 
     card again as it seeks retroactive immunity for telecoms that 
     give in to demands for information under the President's 
     warrantless wiretapping program.
       We hope Congress stands firm as it did in February. Frame 
     it any way you want, but the issue is accountability.
       Proponents are making a last-ditch effort--

  The Denver Post says--

     to squelch some 40 lawsuits that could bear witness to the 
     breadth of Bush administration spying that took place outside 
     the auspices of FISA.
       Congress must not capitulate on this key point.
       It's important to keep in mind how this country came to 
     have FISA. Enacted in 1978, FISA was a response to widespread 
     government abuse of wiretaps in the name of national 
     security. The act set rules for government spying on foreign 
     powers on their agents.
       A secret FISA Court hears government eavesdropping requests 
     and almost without exception approves them. The 
     administration can even wiretap without a FISA warrant and 
     get one later.
       After the 9/11 attacks, President Bush decided to do an end 
     run around the FISA Court, shifting approval for wiretaps 
     from the judiciary to the executive branch. That program was 
     secret until 2005 when the New York Times exposed its 

  As I pointed out earlier, conceivably it would still be operating 
today but for that revealing by the whistleblower.

       Last year, the administration employed fear mongering and 
     convinced Congress--

  The Denver Post says--

     to legitimize the program through the Protect America Act, a 
     temporary provision that expired this year.
       The battle now is over a permanent extension, the 
     centerpiece of which would be lawsuit immunity for the 
     telecommunication companies that cooperated with the 
     warrantless spying program.
       Administration officials say they are very concerned about 
     getting cooperation from the communications companies unless 
     the companies have immunity.
       We find it hard to believe that these telecoms would refuse 
     to comply with the FISA Court order. FISA has been in 
     operation for 30 years and that seems to have not been a 
     problem in the past.

  Let me just cut in here and point out that over the past 25 years, as 
I noted earlier, the FISA Courts have compelled companies to provide 
information and simultaneously granted them immunity when doing so. So 
this idea that we hope they will willingly cooperate--the courts have 
the power to compel cooperation when we want surveillance of 
individuals that could be doing us harm. So the argument that if we 
don't grant immunity they might not show up again when we ask them to 
provide surveillance that we need in order to guarantee our security--
we hope they will cooperate, but if they don't, we have the ability to 
compel cooperation.
  Back to the editorial. It concludes by saying:

       It's also important to keep in mind that the Federal courts 
     where these telecom lawsuits are being heard can--and have--
     dismissed some actions on the grounds that they could 
     endanger national security. So it's not as if there is no 
     protection at work.
       The last time immunity was debated in Congress, House 
     Democrats held firm, saying that they thought the 
     administration's modifications would amount to a suspension 
     of the Constitution. We hope they have the same courage of 
     their convictions this time around.

  I applaud the Denver Post for its brilliant and thoughtful editorial 
in that regard.
  This is an editorial from the Register-Guard in Eugene, OR, so we get 
the breadth of this across the country. This one is entitled ``Sinking 
the Boat: House Approves Flawed Electronic Surveillance Bill,'' June 
24, 2008.

       Congressional leaders have crafted a deeply flawed bill on 
     electronic eavesdropping, caving once again to White House 
     warnings that failure to give the executive branch broad 
     license to spy on U.S. citizens without a warrant would make 
     it harder to protect Americans from terrorists.
       In one of the most disappointing votes of the 110th 
     Congress, the House on Friday approved a compromise over a 
     contentious intelligence surveillance bill. The House measure 
     would allow the Federal Government to intercept international 
     telephone calls or e-mails without prior court approval if 
     the executive branch claims it is necessary in an emergency. 
     It would also grant de facto immunity to telecommunications 
     companies that cooperated in the administration's secret and 
     blatantly unconstitutional surveillance program after the 
     September 11 attacks.
       Congressman Peter DeFazio deserves credit for voting, along 
     with 127 other Democrats, against the House bill. ``We do not 
     trample over the U.S. Constitution in order to protect 
     Americans from terrorism--that is akin to sinking the boat so 
     the enemy can't sink it,'' the Oregon Democrat said.
       After September 11, President Bush authorized the National 
     Security Agency to monitor, without the prior court approval 
     required by the Constitution, e-mails and phone conversations 
     between suspected terrorists of United States residents. 
     Called the Terrorist Surveillance Program, the initiative 
     ignored the 1978 Foreign Intelligence Surveillance Act which 
     required a special Federal court to authorize electronic 
     spying on Americans.

  The editorial goes on to say:

       The Bush administration grudgingly accepted judicial 
     oversight of the program only after its existence was leaked 
     to the media and Congress howled in outrage. That outrage has 
     since been muffled by a White House campaign intended to 
     scare Americans and to allow the administration to further 
     expand the chief executive's powers and erode civil 
     liberties. And, oh, yes, to ensure that no one is held 
     accountable for the illegal wiretapping that Bush ordered 
     after September 11.
       The House bill is a modest improvement over the earlier 
     versions. While it unwisely allows the administration to 
     authorize monitoring of international calls or e-mails, it 
     requires the secret Foreign Intelligence Surveillance Court 
     to review and enforce protections for U.S. residents, and it 
     bars surveillance until those procedures are approved 
     except in ``exigent circumstances.''
       The Senate should improve the House bill by requiring court 
     supervision of any surveillance that can involve American 
     citizens or others in the United States. That's a 
     constitutional red line the Bush administration--or any 
     other--should not be allowed to cross.
       The Senate should also make certain that the courts are 
     allowed to decide whether telecommunication companies 
     violated the

[[Page S6094]]

     law by handing over data to the government over the past five 
     years without a court order. The Senate should also demand a 
     full accounting to Congress of all surveillance conducted 
     since September 11--accounting the White House has refused to 
     provide, telling lawmakers and the American public to instead 
     ``trust us'' with their freedoms.
       Congress still has a chance to make certain that the 
     Federal Government Surveillance Program complies with the 
     rule of law. History would suggest the failure to do so could 
     leave the door open to lawless behavior as long as the 
     current President remains in office--

  And, I would argue, set a precedent for future administrations where 
that could occur as well.
  Again, let me suggest here that what we are talking about is not the 
choice between security and liberty. This is not an issue that ought to 
divide people based on our party affiliation or how one is 
characterized and where they sit in the political spectrum. This is an 
issue that goes to the heart of who we are. It is talking about the 
rule of law and the Constitution. Everyone here takes an oath of office 
to protect and defend our country and to protect the Constitution. 
Certainly that is what this ought to involve.
  Are the courts going to make a determination about the legality of 
this effort? Again, I don't know of another instance in our Nation's 
history where for 5 long years, 17 companies were allowed to virtually 
sweep up every phone call, every e-mail, every fax, every text message 
that was sent by every citizen of this country, and that is exactly 
what happened and would still be ongoing if it hadn't been revealed.
  Do we require that there be some justification as to whether this was 
legally occurring? That ought not to be a matter of political choice. 
That ought to be a matter for the courts. That is why we established 
the third branch of government--the judiciary--to determine the 
constitutionality and legality of actions taken by the executive or 
legislative branches. We are shortcutting in the legislative branch, at 
the request of the executive, the ability of that branch to make that 
determination. We are sanctioning, in effect. We are closing the door, 
never to know why this happened, who ordered it, why did they avoid 
FISA, what was behind their thinking. That is a dangerous step for us 
to take.
  That is the only case I am making. I have my doubts, as I said, about 
the legality of it, but that is just one Senator. I have the right to 
certainly have my doubts about certain actions. I don't have the right 
to determine the legality of it. I am a Senator, I am not a Federal 
judge. I don't sit in that third branch, I sit in the second branch. I 
sit in the Congress of the United States. It is my job here to stand up 
and see to it that we don't take actions that would deprive that 
branch--the legal branch, the judicial branch--from asserting its 
rights under our Constitution--exactly what the Founders intended.
  So while I know there are those who are going to argue and make the 
case that those of us who stand up here to defend the rule of law, 
somehow we are weak-kneed when it comes to terrorism, that is hardly 
the case. I don't want to give terrorists a greater victory. As 
profoundly sad, as tragic, and as violent as the attack was on 9/11 
that destroyed so much and showed us how dangerous the world is today, 
to grant them the power--those terrorists--to allow them to deprive us 
of our liberties is to grant them a victory even greater than they 
achieved that day. It must be our common determination to see to it 
that we stand up and not allow these rights and these liberties we 
enjoy as citizens to be eroded at our own hand.
  Let's say to terrorists around the world: We will fight you and 
defeat you as you try to do us and others great harm, but you will not 
bring down the pillars of our constitutional form of government and the 
rule of law. That is what this is all about, while it is argued and we 
are told that we have to do this and if we don't do it, that somehow we 
are succumbing to those terrorists who wish to do us great physical 
  Let me, if I can, sort of wrap up because I know I am taking a little 
bit of time. I want to leave some time to argue my housing bill. I am 
consuming the time on my housing bill to do this, but I want people to 
understand, at least from my perspective, why this is a dangerous 
conclusion, why we ought to vote against cloture, and why I am going to 
use my power as a Senator to object to going to that cloture vote, at 
least as long as a cloture vote exists on dealing with the housing 
  I think retroactive immunity is a disgrace. In the last months, I 
believe we proved that beyond any doubt whatsoever. As I said, I 
believe it is more disgraceful in all that it represents. It is the 
mindset that the Church Committee summed up so eloquently three decades 
ago. As I read these words--they are no longer with us. A lot of these 
Members have long since left us, not only from this Chamber but who 
have since passed away. But it is worthwhile for us to read their 
words, these Democrats and Republicans. There were those who suggested 
somehow they were weak-kneed when it came to giving the President the 
power to protect our national security. But listen to their words of 
three decades ago:

       The view that the traditional American principles of 
     justice and fair play have no place in our struggle against 
     the enemies of freedom, that view created the Nixonian 
     secrecy of the 1970s.

  The Church committee wrote those words in part as a rebuke to our 
predecessors in this Chamber who for years allowed secrecy and 
executive abuses to slide. But today those words take on new meaning. 
Today, they rebuke us, in a way. Today they shame us for a lack of 
faith that we can, at the same time, keep our country safe and our 
Constitution whole.
  As I said before, when the 21st century version of the Church 
committee convenes to investigate the abuses of the past years, how 
will we be judged? When it reads through the records of our debates--
not if, Mr. President, but when--what will they find? When the 
President asked us to repudiate the Geneva Conventions and strip away 
the rights of habeas corpus, how did we respond? What was our Congress? 
What did we say about that? When stories of secret prisons and 
outsourced torture became impossible to deny, what did that Congress do 
in 2008 and 2007? In June of 2008 when we were asked to put 
corporations explicitly outside the law and accept at face value the 
argument that some are literally too rich to be sued, how did that 
Congress, how did that Senate vote on that matter?
  All of these questions are coming to us, Mr. President. All of them 
and more. And in the quiet of his or her own conscience, each Senator 
knows what the answers are.
  Remember, this is about more than a few telephone calls, a few 
companies, or a few lawsuits. If the supporters of retroactive immunity 
keep this argument a technical one, they will win. A technical argument 
obscures the defining question: the rule of law or the rule of men? 
That question never goes away. As long as there are free societies, 
generations of leaders will struggle mightily to answer it. Each 
generation must ascertain an answer for itself. Just because our 
Founders answered it correctly doesn't mean we are bound by their 
choice. In that, as in all decisions, we are entirely free.
  The burden falls not on history but on each one of us--the 100 of us 
who serve in this remarkable Chamber. But we can take counsel, listen 
to those who came before us, who made the right choice even when our 
Nation's survival was at risk. They knew the rule of law was far more 
rooted in our character than any one man's lawlessness. From the 
beginning, they advised us to fight that lawlessness whenever we found 
it. At the Constitutional Convention, James Madison said:

       The means of defense against foreign danger historically 
     have become the instruments of tyranny at home.

  He also said:

       I believe there are more instances of the abridgement of 
     the freedom of the people by gradual and silent encroachments 
     of those in power than by violent and sudden assertion.

  As long as we are temporary custodians of the Constitution, as we 
are, we have a duty to guard against those gradual and silent 
encroachments. That is exactly what this is. It is a gradual and silent 
encroachment. It doesn't come in a burst, it comes slowly. Our Founders 
knew these threats were coming. They could predict, persuade, and warn, 
but when it comes time to stand up against those threats in our own 
time, they cannot act for us. They can only teach us, they

[[Page S6095]]

can warn us, they can remind us that they would come. And they have. 
They are here. They are before us. They cannot act for us. The choice 
is ours and ours alone.
  Tomorrow or the following day, when we are asked to vote on this, the 
choice will be ours. We have been warned and cautioned by history. The 
decision now rests with each and every one of us to decide whether we 
have listened to them and not only answer them but provide the answer 
for generations to come, as generations before us have answered that 
question. May we rise to that moment, Mr. President, and defeat this 
legislation. May we reject this retroactive immunity for a handful of 
companies so that we may determine whether their actions were legal or 
whether they were above the law or whether they were the rule of law or 
the rule of men. That is the important choice we will have to make.
  I yield the floor.