As FISA nears toward vote, Feingold warns against immunity
David Edwards and Nick Juliano
Published: Tuesday July 8, 2008

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While the final result of what critics call a flawed surveillance bill is all-but-ordained, Sen. Russ Feingold (D-WI) is sticking to his fight to convince colleagues not to retroactively eliminate any consequences for participating in President Bush's warrantless wiretapping program, which was conducted outside of existing law.

"This immunity provision doesn't just allow telephone companies off the hook. It will also make it that much harder to get at the core issue that I've been raising since December 2005, which is that the president broke the law and should be held accountable," Feingold said on the Senate floor Tuesday. "When these lawsuits are dismissed, we will be that much further away from an independent judicial review of this illegal program."

He noted that judges who are considering the warrantless spying program have rebuked the Bush administration several times, and that most Senators continue to be unaware of exactly what the program included. Only members of the Judiciary and Intelligence committees, both of which Feingold is a member, have seen classified documents fully explaining the warrantless wiretapping, which Bush dubbed his Terrorist Surveillance Program.

"We're considering granting immunity when roughly 70 members of the Senate still have not been briefed on the president's wiretapping program," he said. "The vast majority of this body still does not even know what we're being asked to grant immunity for."

Feingold was speaking in favor of an amendment he is co-sponsoring with Sen. Chris Dodd (D-CT) to strip a grant of retroactive immunity from an update to the Foreign Intelligence Surveillance Act.

The two senators succeeded in delaying a vote on FISA that had been scheduled for last month until after the Independence Day recess. Originally scheduled for Tuesday, vote on the amendments and final bill have been delayed another day so senators can attend the funeral for former North Carolina Senator Jesse Helms, who died last week.

When the Senate debated another FISA bill earlier this year, a similar Feingold-Dodd amendment received just 31 votes; it is not expected to be adopted this time around either.

Sens. Arlen Specter (R-PA) and Jeff Bingaman (D-NM) have introduced their own amendments to modify the immunity provision. Specter would let the court decide not to grant immunity if it decides the NSA's warrantless spying was unconstitutional; Bingaman would delay a congressional decision on immunity until Congress receives reports from the Justice Department, NSA and other Inspectors General on the warrantless wiretapping.

Because of procedural rules worked out by Senate leadership those amendments would each need 60 votes to pass, meaning their success also is unlikely.

President Bush also has promised to veto any FISA update that does not include an unfettered grant of immunity to telecommunications companies like Verizon and AT&T, which are defendants in some 40 lawsuits alleging they violated customers' privacy. The Electronic Frontier Foundation, which is representing plaintiffs in some of those suits, accused Bush of ignoring the need to improve surveillance mechanisms.

"The Bush Administration is willing to veto the legislation and forgo these tools unless the telecom immunity is given effect immediately," wrote Kurt Opsahl on EFF's blog. "None of this is as important as immediate immunity for the telecommunications carriers. Even if the President gets an unprecedented expansion of government surveillance power, and the bill merely delays telecom immunity until Congress has more information, this, Bush contends, is not better than continued surveillance under the current version of FISA."

This video is from C-SPAN 2, broadcast July 8, 2008.

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Full Text of Feingold's Remarks:

Mr. FEINGOLD: Mr. President, I strongly support Senator Dodd’s amendment to strike the immunity provision from this bill, and I want to thank the Senator from Connecticut for his leadership on this issue. Both earlier this year when the Senate first considered FISA legislation and again this time around, he has demonstrated tremendous resolve on this issue, and I have been proud to work with him.

Now, Mr. President, some have tried to suggest that the bill before us will leave it up to the courts to decide whether or not to give retroactive immunity to the companies that allegedly participated in the President’s illegal wiretapping program. Make no mistake – this bill will result in immunity being granted, because it sets up a rigged process with only one possible outcome.

Under the terms of this bill, a federal district court would evaluate whether there is substantial evidence that a company received “a written request or directive … from the Attorney General or the head of an element of the intelligence community … indicating that the activity was authorized by the President and determined to be lawful.”

But, Mr. President, we already know from the report of the Senate Intelligence Committee that was issued last fall that the companies received exactly such a request or directive. That is already public information. So under the terms of this proposal, the court’s decision would be predetermined.

As a practical matter, that means that regardless of how much information the court is permitted to review, what standard of review is employed, how open the proceedings are, and what role the plaintiffs are permitted to play, the court will essentially be required to grant immunity under this bill.

Now, proponents will argue that the plaintiffs in the lawsuits against the companies can participate in briefing to the court. This is true, but they are not allowed access to any classified information. Talk about fighting with both hands tied behind your back. Mr. President, the administration has restricted information about this illegal wiretapping program so much that roughly 70 members of this chamber don’t even have access to the basic facts about what happened. So let’s not pretend that the plaintiffs will be able to participate in any meaningful way in these proceedings -- in which Congress has made sure that their claims will be dismissed.

This result is extremely disappointing. It is entirely unnecessary and unjustified, and it will profoundly undermine the rule of law in this country. I cannot comprehend why Congress would take this action in the waning months of an administration that has consistently shown contempt for the rule of law – perhaps most notably in the illegal warrantless wiretapping program it set up in secret.

Mr. President, we hear people argue that telecom companies should not be penalized for allegedly taking part in this illegal program. What you don’t hear is that current law already provides immunity from lawsuits for companies that cooperate with the government’s request for assistance, as long as they receive either a court order or a certification from the Attorney General that no court order is needed and the request meets all statutory requirements. But if requests are not properly documented, FISA instructs the telephone companies to refuse the government’s request, and subjects them to liability if they instead decide to cooperate.

When Congress passed FISA three decades ago, in the wake of the extensive, well-documented wiretapping abuses of the 1960s and 1970s, it decided that, in the future, telephone companies should not simply assume that any government request for assistance to conduct electronic surveillance was appropriate. It was clear that some checks needed to be in place to prevent future abuses of this incredibly intrusive power – the power to listen in on people’s personal conversations.

At the same time, however, Congress did not want to saddle telephone companies with the responsibility of determining whether the government’s request for assistance was legitimate or not.

So Congress devised a system that would take the guesswork out of it completely. Under that system, which is still in place today, the companies’ legal obligations and liability depend entirely on whether the government has presented the company with a court order or a certification stating that certain basic requirements have been met. If the proper documentation is submitted, the company must cooperate with the request and is immune from liability. If the proper documentation has not been submitted, the company must refuse the government’s request, or be subject to possible liability in the courts.

This framework, which has been in place for 30 years, protects companies that comply with legitimate government requests while also protecting the privacy of Americans’ communications from illegitimate snooping.

Granting companies that allegedly cooperated with an illegal program the new form of retroactive immunity that is in this bill undermines the law that has been on the books for decades – a law that was designed to prevent exactly the type of abuses that allegedly occurred here.

Even worse, granting retroactive immunity under these circumstances will undermine any new laws that we pass regarding government surveillance. If we want companies to follow the law in the future, it sends a terrible message, and sets a terrible precedent, to give them a “get out of jail free” card for allegedly ignoring the law in the past.

Mr. President, just last week a key court decision on FISA undercut one of the most popular arguments in support of immunity -- that we need to let the companies off the hook because the state secrets privilege prevents them from defending themselves in court. A federal court has now held that the state secrets privilege does not apply to claims brought under FISA. Rather, more specific evidentiary rules in FISA govern. Shouldn’t we at least let these cases proceed to see how this plays out, rather than trying to solve a problem that may not even exist?

And that’s not all. Mr. President, this immunity provision doesn’t just allow telephone companies off the hook. It also will make it that much harder to get to the core issue that I’ve been raising since December 2005, which is that the President broke the law and should be held accountable. When these lawsuits are dismissed, we will be that much further away from an independent judicial review of this illegal program.

On top of all this, we are considering granting immunity when roughly 70 members of the Senate still have not been briefed on the President’s wiretapping program. The vast majority of this body still does not even know what we are being asked to grant immunity for. Frankly, I have a hard time understanding how any Senator can vote against this amendment without this information.

I urge my colleagues to support the amendment to strike the immunity provision from the bill.