Chris Dodd on FISA

Chris Dodd may not be the next president but he is a great statesman. This is his statement to the Senate this week.

Mr. President: Last night we saw into the heart of Republican priorities. Since last month, day after day after day, opponents of retroactive immunity have been warning about its underlying motive: shutting up the president’s critics.

Pass immunity, we’ve said, and the debate will be shut down, the critics will be shut up, and the actions of the president’s favored corporations will be shut in the dark, for good.

Well, Mr. President, last night we saw that mindset in miniature. Several of my Democratic colleagues had brought to the floor their carefully-prepared amendments, many of which do their part to right the balance between security and civil liberties:

The Cardin Amendment, which would allow us to revisit this bill in four years, instead of six.

Amendments from Senator Feingold, prohibiting the dangerous and possibly unconstitutional practices of reverse targeting and bulk collection.

The Leahy Amendment requiring the Inspectors General of the Director of National Intelligence, the Department of Justice, and National Security Agency to investigate possibly illegal domestic spying.

And the amendment from Senators Feinstein and Nelson allowing the FISA Court to determine whether immunity should apply to the telecommunications companies; and several more amendments, as well.

They are all serious amendments from serious members; some of them I will support, some I will oppose.

But I am concerned about amendments that expand the authority of the FISA Court beyond what Congress intended when it originally passed FISA. While I respect the motives behind such proposals, I think Congress needs time to fully consider their implications.

Further, I’m concerned that such proposals put excessive power in the hands of a secret court, whose members are all appointed by one individual. In other words, I’m concerned that this is another concentration of power whose implications we don’t yet understand.

Yes, secrecy is necessary, at times, in the life of every nation. But it’s a bedrock principle that democracies should always err on the side of less secrecy. For that reason, I believe that cases against the telecoms are best handled in our standard federal courts—which, by the way, have shown time and time again that they know how to protect state secrets.

But none of that is the real issue this morning, Mr. President. Whether you agree with them or not, each amendment—each one—deserves consideration. Each one deserves to be heard.

Senators are not entitled to see their amendments pass. But they are entitled to this: a good-faith debate, honest criticism, and, ultimately, a vote.

Last night, they didn’t get it. Our Republican colleagues, assuming that they would lose those votes, effectively shut down the work of the Senate. They’ve taken their ball and run home.

They won’t debate us on the merits. On the merits, they conceded, Republicans have lost.

And I don’t think I’m far off base, Mr. President, in seeing in this egregious shutdown a parallel to retroactive immunity itself. Both attitudes privilege power over deliberation, over consensus, over honest argument.

Like immunity, pulling these amendments shows a contempt for honest debate and a willingness to settle issues in the dark, in back rooms—rather than in the open, where the law lives, where the American people can see it.

President Bush wants to shut down courts whose rulings he doesn’t like; last night, Senate Republicans showed that when they don’t like the outcome of a debate, they’ll shut that down, too.

It’s one thing for a president to express that kind of contempt for the process of legislation. It’s another for the members legislative branch to express it themselves.

Mr. President, I’ve spoken repeatedly about the rule of law. The rule of law isn’t some abstract idea. It’s here with us—it’s what makes this body run.

It means we hear each other out, we do it in the open, and while the minority gets its voice, gets its right to strenuously object, the majority ultimately rules.

And standing for the rule of law anywhere means standing for it everywhere: in our courts, and in our Senate. The circumstances are different, of course; but the heart of the matter is the same. Last night, I believe, the Republican party forfeited its claim to good faith on this issue. They’re left to stake their case on fear. Whether that will be enough, the next few days will tell.

Mr. President, I spoke yesterday about a crime that may have been committed against millions of innocent Americans: their phone calls, their faxes, their e-mails, every word listened in to and copied down by government bureaucrats into a massive database.

I spoke about how our largest telecommunications companies leapt at the chance to betray the privacy and the trust of their own customers.

That spying didn’t happen in a panic or short-term emergency, not for a week or a month—it went on, relentlessly, for more than five years. And if the press didn’t expose it, I imagine it would still be going on today.

We saw how President Bush responded when he was exposed. Not by apologizing. Not even by making his best case before our courts. But by asking for a Congressional cover-up: retroactive immunity He asked us to do it on trust. There are classified documents, he says, that prove his case beyond a shadow of a doubt. But we’re not allowed to see them! I’ve served in this body for 27 years, and I’m not allowed to see them! Neither are a majority of my colleagues.

And when we resist his urge to be a law unto himself, how does he respond? With fear. When we question him, he says, we are failing “to keep the American people safe.”

Shame on him. Shame on his scare tactics.

I’ve promised to fight those scare tactics with all the power any one senator can muster. And I’m here today to keep that promise.

For several months now, I’ve listened to the building frustration over this immunity and this administration’s campaign of lawlessness. I’ve seen it in person, in mail, online—the passion and eloquence of citizens who are just fed up. They’ve inspired me more than they know.

But almost every time telecom immunity comes up, there’s an inevitable question:

What’s the big deal? Why are so many people spending so much energy all to keep a few lawsuits going forward?

Because this is about far more than the telecoms. This is about the choice that will define America: the rule of law, or the rule of men.

It’s about this government’s practice of waterboarding, a technique invented by the Spanish Inquisition, perfected by the Khmer Rouge, and in between, banned—originally banned for excessive cruelty—by the Gestapo!

It’s about the Military Commissions Act, a bill that gave President Bush the power to designate any individual he wants an “unlawful enemy combatant,” hold him indefinitely, and take away his right to habeas corpus—the 900-year-old right to challenge your detention.

It’s about the CIA destroying evidence of harsh interrogation—or, as some would call it, torture.

It’s about Dick Cheney raising secrecy to an art form.

The members of his energy task force? None of your business.

His location? Undisclosed.

The names of his staff? Confidential.

The visitor log for his office? Shredded by the Secret Service.

The list of papers he has declassified? Classified.

It’s about the Justice Department turning our nation’s highest law enforcement offices into patronage plums, and turning the impartial work of indictments and trials into the machinations of politics.

It’s about Alberto Gonzales coming before Congress to give us testimony that was at best wrong and at worst perjury.

It’s about Michael Mukasey coming before the Senate and defending the president’s power to openly break the law.

It’s about extraordinary renditions and secret prisons.

It’s about Maher Arar—the Canadian computer programmer who was arrested by American agents, flown to Syria, held for some 300 days in a cell three feet wide—this wide [gesture]—and then cleared of all wrongdoing.

It is about all of that, Mr. President. All of that. We are deceiving ourselves when we talk about the torture issue, or the habeas issue, or the U.S. attorneys issue, or the extraordinary rendition issue, or the secrecy issue.

As if each one were an isolated case! As if each one were an accident! We’ve let outrage upon outrage upon outrage slide with nothing more than a promise to stop the next one.

There is only one issue here. Only one. The law issue. Attack the president’s contempt for the law at any point, and it will be wounded at all points.

That’s why I’m here today. I am speaking for the American people’s right to know what the president and the telecoms did to them. But more than that, I am speaking against the president’s conviction that he is the law. Strike it at any point, with courage, and it will wither.

That’s the big deal. That is why immunity matters—dangerous in itself, but even worse in all it represents. No more. No more. This far, Mr. President—but no further.

More and more, Americans are rejecting the false choice that has come to define this administration: security or liberty, but never, ever both.

It speaks volumes about the president’s estimation of the American people that he expects them to accept that choice.

The truth, though, is that shielding corporations from lawsuits does absolutely nothing for our security. I challenge the president to prove otherwise. I challenge him to show us how putting these companies above the law makes us safer by an iota.

That, I am convinced, he can’t do.

The truth is that a working balance between security and liberty has already been struck. In fact, it has been settled for decades. For three decades, FISA has prevented executive lawbreaking and protected Americans, and that balance stands today.

In the wake of the Watergate scandal, the Senate convened the Church Committee, a panel of distinguished members determined to investigate executive abuses of power. And unsurprisingly, they found that when Congress and the courts substitute “trust me” for real oversight, massive lawbreaking can result.

They found evidence of U.S. Army spying on the civilian population, federal dossiers on citizens’ political activities, a CIA and FBI program that had 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.”

But at the same time, the senators of the Church Committee understood that surveillance needed to go forward to protect the American people. Surveillance itself was not the problem; unchecked, unregulated, unwarranted surveillance was. What surveillance needed, in a word, was legitimacy.

And in America, as the Founders understood, power becomes legitimate when it is shared, when Congress and the courts check that attitude which so often crops up in the executive branch—“if the president does it, it’s not illegal.”

The Church Committee’s final report, “Intelligence Activities and the Rights of Americans,” put the case powerfully:

The critical question before the Committee was to determine how the fundamental liberties of the people can be maintained in the course of the Government’s effort to protect their security.

The delicate balance between these basic goals of our system of government is often difficult to strike, but it can, and must, be achieved.

We reject the view that the traditional American 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….

We have seen segments of our Government, in their attitudes and action, 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 senators concluded: “Unless new and tighter controls are established by legislation, domestic intelligence activities threaten to undermine our democratic society and fundamentally alter its nature.”

Mr. President: Couldn’t those words have been written yesterday? We share so much with the senators who wrote them. We share a nation under grave threat: in their case, from communism and nuclear annihilation, in ours, from international terrorism. We share, as well, the threat of a domestic spying regime that, however good its intentions, finally went too far.

Senators, in my lifetime, have already faced this problem. And I believe their solution stands: The power to invade privacy must be used sparingly, guarded jealously, and shared equally between the branches of government.

Three decades ago, Congress embodied that solution in the Foreign Intelligence Surveillance Act, or FISA. 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 a warrant—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 this 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 many times since, FISA has accomplished its mission; it has been a valuable tool for conducting surveillance of terrorists and those who would harm America.

And every time presidents have come to Congress openly to ask for more leeway under FISA, Congress has worked with them; Congress has negotiated; and together, Congress and the president have struck a balance that safeguards America while doing its utmost to protect privacy.

This 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 felt 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, as we’ve seen, the Senate 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.

Isn’t that enough?

And as for the FISA court? Between 1978 and 2004, according to the Washington Post, the FISA court approved 18,748 warrants—and rejected five.

The FISA court has sided with the executive ninety nine point nine percent of the time.

Isn’t that enough?

Is anything lacking? Have we forgotten something? Isn’t all of this enough to keep us safe?

It took three decades, three branches of government, four presidents, and 12 Congresses to patiently, painstakingly build up that machinery. It only took one president to tear it down. Generations of leaders handed over to President Bush a system that brought security under the law, a system primed to bless nearly any eavesdropping he could conceive.

And he responded: “No thank you. I’d rather break the law.”

He 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 ninety nine point nine percent of the time. And he still hasn’t given us a good reason why. He still hasn’t shown how his lawbreaking makes us safer.

So I am left to conclude that, to the president, this isn’t about security. It’s about power: power in itself, power for itself.

I make that point not to change the subject, but because I believe it solves a mystery. That is: Why is retroactive immunity so vital to this president? The answer, I believe, is that immunity means secrecy; and secrecy, to this administration, means power.

It’s no coincidence that the man who declared “if the president does it, it’s not illegal”—Richard Nixon—was the same man who raised executive secrecy to an art form.

The senators of the Church Committee expressed succinctly the deep flaw in the Nixonian executive: “Abuse thrives on secrecy.” And, in the exhaustive catalogue of their report, they proved it.

This administration shares a similar level of secrecy, and similar level of abuse. Its push for immunity is no different—secrecy is at its center.

And we find proof in their original version of retroactive immunity: a proposal to protect not just the telecoms, but everyone involved in the wiretapping program.

In their original proposal, that is, they wanted to immunize themselves.

Think about that. It speaks to their fear and, perhaps, their guilt: their guilt that they had 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 afraid!

Thankfully, immunity for the executive is not part of the bill before us.

But the original proposal tells us something very important: This is, and always has been, a self-preservation bill.

Otherwise, why not have the trial and get it over with? If the president believes what he says, the corporations would win in a walk.

After all, in the administration’s telling, the telecoms were ordered to help the president spy without a warrant, and they patriotically complied. Ignore for a moment the fact that in America we obey the laws, not the president’s orders.

Ignore that the telecoms were not unanimous; one, Qwest, wanted to see the legal basis for the order, never received it, and so refused to comply. Ignore that a judge presiding over the case ruled that “AT&T cannot seriously contend that a reasonable entity in its position could have believed that the alleged domestic dragnet was legal.”

Ignore all that: If the order the telecoms received was legally binding, they have an easy case to prove. The corporations only need to show a judge the authority and the assurances they were given, and they’ll be in and out of court in five 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 he’s afraid of leaks. Our federal court system has dealt for decades with the most delicate national security matters, building up expertise in protecting classified information behind closed doors—ex parte, in camera. We can expect no less in these cases.

No intelligence sources need be compromised. No state secrets need be exposed. After litigation at both the district court and circuit court level, no state secrets have been exposed.

In fact, Federal District Court Judge Vaughn Walker, a Republican appointee, has already ruled that the issue can go to trial without putting state secrets in jeopardy. He reasonably pointed out that the existence of the president’s surveillance program is a hardly secret at all: “The government has [already] disclosed the general contours of the ‘terrorist surveillance program,’ which requires the assistance of a telecommunications provider.”

In his opinion, Judge Walker argued that, even when it is reasonably grounded,

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.

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.

And that ought to be the epitaph for this presidency: “sacrificing liberty for no apparent enhancement of security.” Worse than selling our soul—giving it away for free!

The president 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.

The truth is that, since the 1970s, FISA has compelled telecommunications companies to cooperate with surveillance, when it’s warranted—and what’s more, it immunizes them. It’s done that for more than 25 years.

So cooperation in warranted wiretapping is not at stake today. Collusion in warrantless 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.

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. The conclusion is clear:

The only thing that stands to be exposed if these cases go to trial is the extent of President Bush’s lawbreaking. That, he will keep from the light of a courtroom at all costs.

This is a self-preservation bill. And given the lack of compelling alternatives, I can only conclude that self-preservation—secrecy for secrecy’s sake—explains the president’s vehemence.

Well, you might say, he’ll be gone in a year—why not let the secrets die with this presidency and start afresh?

Because those secrets never rightfully belonged to him. They belong to history, to our successors in this chamber, to every one of us. Thirty years after the Church Committee, history repeated itself. If those who come after us are to prevent it from repeating again, they need the full truth.

And we need to set an unmistakable precedent: that determining guilt or innocence belongs to the courts, not to Congress or the president; that lawless spying will no longer be tolerated; and that, most of all, the truth is no one’s private property.

Which brings us, unfortunately, to economics. Because once the arguments from state secrets and patriotic duty are exhausted, immunity’s defenders make their last stand as amateur economists.

Here’s 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’s a clear exaggeration. We are talking about some of the wealthiest, most successful companies in America. Let me quote an article from Dow Jones MarketWatch.

The headline reads: “AT&T’s third-quarter profit rises 41.5%.”

Quote: “AT&T Inc. on Tuesday said third-quarter earnings rose 41.5%, boosted by the acquisition of BellSouth and the addition of 2 million net wireless customers….Net income totaled $3.06 billion…compared with $2.17 billion…a year ago.” Note that AT&T has posted these record profits at the same time of this very public litigation.

Now granted, that’s only one quarter, and I understand that AT&T’s most recent earnings aren’t as stupendous. But the point still stands.

A company of that size, one capable of posting a $3 billion quarter, couldn’t be completely wiped out by anything but the most exorbitant and unlikely judgment.

To assume that the telecoms would lose, and that their judges would then hand down such backbreaking penalties, is already to take several leaps. The point, after all, has never been to financially cripple our telecommunications industry. The point is to bring checks and balances back to domestic spying. Setting that precedent would hardly require a crippling judgment.

It’s much more troubling, though, that our Director of National Intelligence has begun talking like a stockbroker, pronouncing on “liability protection for private sector entities.” How does that even begin to be relevant to letting this case go forward? Since when did we throw entire suits out because the defendant stood to lose too much?

Translate the point into plain English, and here’s what Adm. McConnell is arguing: Some corporations are too rich to be sued. Even bringing money into the equation puts wealth above justice, above due process—I’ve rarely in public life heard an argument so venal.

But this administration would rather protect telecoms than the American people. In one breath, it can speak 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 administration is essentially arguing that immunity can be bought.

The truth is exactly the opposite: The larger the corporation, the greater the potential for abuse.

Not that success should make a company suspect; companies grow large, and essential to our economy, because they are excellent at what they do. I simply mean that size and wealth open the realm of possibilities for abuse far beyond the scope of the individual.

After all, if everything alleged is true, the president and the telecoms have engineered one of the most massive violations of privacy in American history. A violation like that would be inconceivable without the size and resources of a corporate behemoth behind it.

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 the floorboards. That’s the massive scale we’re talking about—and that massive scale is precisely why no corporation must be above the law.

And ultimately, Mr. President, that’s all I’m asking. Not a verdict of guilty or innocent. Just a day in court.

And when that day comes, I have absolutely no investment in the verdict, either way. Just as it would be absurd for me to declare the telecoms clearly guilty, it is equally absurd to close the case today, without a decision. But their day in court—as far as I’m concerned, Mr. President, that is everything.

Why? Because surveillance demands and deserves legitimacy, and the surest way to throw legitimacy away is to leave all of these questions hanging.

Few things are as vital to our national security as giving domestic surveillance the legitimacy it deserves.

Because “the threat to America is not going to expire.” “Staying a step ahead of the terrorists who want to attack us” is “essential to keeping America safe.” And in the end, “Congress and the president have no higher responsibility than protecting the American people from enemies who attacked our country—and who want to do so again.”

Those aren’t my words, Mr. President. They’re George Bush’s words.

And yet he says he’ll veto this entire bill—this vital bill, this bill he tells us is essential to protecting our very lives—all to keep a few corporations safe from lawsuits.

There, at last, as honest as you’ll ever hear them, are this president’s true priorities. Secrecy over safety. Corporate favors over courts and fairness.

Marry those priorities to a contempt for the law, and the results have been devastating. I don’t have to repeat them. They aren’t secret anymore.

No, Mr. President—we can’t go back. We can’t un-pass the Military Commissions Act. We can’t un-destroy the CIA’s interrogation tapes. We can’t un-speak Alberto Gonzales’s disgraceful testimony. We can’t un-torture Maher Arar. We can’t un-do all that this administration has done in the last six years for the cause of lawlessness and fear.

But we can do this. We can vote down this immunity. We can grab hold of the one thread left to us, and pull until the whole garment unravels. We can start here.

Why not here?


Why not today?


I urge—I strongly urge—my colleagues to oppose retroactive immunity.