Foreign Intelligence Surveillance Amdenments Act of 2008--Continued

Floor Speech

FOREIGN INTELLIGENCE SURVEILLANCE AMENDMENTS ACT OF 2008--Continued -- (Senate - July 08, 2008)

BREAK IN TRANSCRIPT

Mr. WHITEHOUSE. Madam President, I appreciate very much the courtesy of my chairman in allowing me some time. I should not take more than 10 minutes.

Once more we find ourselves debating President Bush's warrantless wiretapping program, a self-inflicted wound that this administration has visited upon our Government.

The way this Senator sees it at least, the Bush administration broke faith with the American people with its warrantless surveillance program, and now we in Congress are meant to clean up the administration's mess. Unfortunately, we are doing so with a legislative fix that in one critical area--immunity for the phone companies--misapplies the substantial evidence standard, trespasses constitutional boundaries, and breaks dangerous new ground in American law.

We would not be in this position if the Bush administration had sought and received a court order in the first place, as it easily could have. There would be no debate over granting immunity since a company following a court order is protected. Or the Bush administration could have used FISA procedures to seek and receive lawful assistance from telecommunications companies. But the administration chose to go outside the law. I suspect the administration wanted to prove a point about the President's article II authority, so it deliberately avoided these well-established mechanisms. If so, the Bush administration deliberately walked these telecommunications companies into this problem and this litigation to vindicate ideological ambitions. But the problem is now before us.

I have worked diligently and across the aisle to try to develop thoughtful solutions to the problem. In February, with the distinguished Senator from Pennsylvania, Senator Arlen Specter, the learned ranking member of the Judiciary Committee, I offered a bipartisan amendment that would have substituted the U.S. Government for the telecommunications companies if it was determined they acted in good faith and with the reasonable belief that compliance was lawful.

Similarly, I supported an amendment offered by Senators Dianne Feinstein and Bill Nelson, drawn from the Specter-Whitehouse amendment, that offered immunity to those companies that acted, again, in good faith and with the reasonable belief that compliance was lawful.

Good faith is the proper standard here. It is the standard repeatedly referenced by respected Members in this Chamber who have asserted that any telecommunications company that assisted the Government acted in good faith.

My friend, Senator Martinez, said:

The fact is that these companies acted in good faith, and they acted in good faith when they were called upon to assist our intelligence professionals.

My friend on the Judiciary Committee, Senator Kyl, noted:

[t]he general rule that private citizens acting in good faith to assist law enforcement are immune from suit.

Senator Chambliss, my colleague on the Intelligence Committee, argued that America's telecommunications carriers ``should not be subjected to costly legal battles and potentially frivolous cases ..... merely for their good faith-assistance to the Government.''

Senator Allard said that ``the U.S. Government owes these patriotic companies and their executives protections based on the good-faith effort they made in working with our intelligence community.''

Senator Bond, vice chairman of the Intelligence Committee, noted that ``the intelligence community advised us ..... that these companies acted in good faith, and we in the committee agreed with them.''

We seem to have agreement amongst Members in this body that good faith is the proper standard. So we should let a court, which has available to it the procedural mechanisms necessary to get to the bottom of this in a confidential manner, make the determination, the fundamental determination: Did these companies, if they received Government requests, act in good faith? We may in this body assume it to be true, but it is not our role as Members of Congress to decide on the good faith of an individual litigant in a matter that is before a court.

Many Senators have not even been read into the classified materials that would allow us to reach an informed conclusion about good faith. We as a body are incapable of making an informed conclusion because as a body, we have not had access to the necessary materials. So we should provide a fair mechanism for a finding of good faith by a proper judicial body with the proper provisions for confidentiality.

This simple determination can be made with limited proceedings based largely on the record of any documents provided to the companies. We ask so little--a proper hearing, applying a proper standard. Unfortunately, the Bush administration opposed this option, and I have not had the chance to offer this amendment. For all its talk, the Bush administration was evidently and tellingly not confident that a good-faith threshold could be met.

So instead of requiring a finding of good faith, the bill states that immunity will be granted if the Attorney General's certification is ``supported by substantial evidence.'' It is worth drilling down to some lawyering for a moment to reflect on what ``substantial evidence'' means in this context.

The first point is that ``substantial evidence'' standard is essentially a meaningless standard, given the minimal showing necessary to be granted immunity. The elements as to which substantial evidence must exist are these: The intelligence activity was ``authorized by the President''; ``designed to detect or prevent a terrorist attack''; and ``the subject of a written request or directive ..... indicating that the activity was (I) authorized by the President; and (ii) determined to be lawful.''

That is it. That is achieved by simply putting into evidence the piece of paper containing the Attorney General's certification.

But the substantial evidence standard implies more than that, and it is out of place here. This standard is typically applied in what is called a ``sufficiency challenge''--a judicial inquiry into whether there is substantial evidence to support a jury verdict. I cannot tell you how many sufficiency challenges I have withstood as an attorney general and U.S. attorney. It is standard fare in criminal cases.

The substantial evidence standard is also frequently used for judicial review of an administrative agency's adjudication or rulemaking.

So the substantial evidence standard is used to review the results of adversarial proceedings where the parties had a chance to make their case and build their record, and the court then reviews to determine whether there is substantial evidence to support the agency's or jury's determination.

The substantial evidence standard is a standard used to weigh the result of an adversarial process. Not so here. Here the court will apply the substantial evidence standard to an Attorney General's unilateral certification. That is bad lawyering. That is discouraging, when it would have been so easy to get this right.

Let me close with a few words about the constitutionality of title II. It is a core principle of our system of separated powers that no branch of Government may exercise powers allocated to another branch. The United States Supreme Court has said that the Framers of the Federal Constitution felt in drafting our Constitution ``the sense of a sharp necessity to separate the legislative from the judicial power.'' This sense of sharp necessity, the Court said, was ``prompted by the crescendo''--the words the Court used--``the crescendo of legislative interference with private judgment of the courts.''

If you wish to see a case of legislative interference with private judgment of the courts, look no further than what we are doing today.

Plaintiffs in the telecom litigation have brought causes of action alleging that their core constitutional rights were violated. By providing immunity, Congress is telling the judicial branch: You cannot hear an entire category of constitutional claims. Congress is intruding upon a core function of the judicial power--the resolution of constitutional disputes.

The U.S. Supreme Court has warned on more than one occasion, most recently in the 1988 case of Webster v. Doe, that ``a serious constitutional question would arise if a federal statute were construed to deny any judicial forum for a colorable constitutional claim.''

This statute has as its very purpose to deny a judicial forum to these colorable constitutional claims.

I further note that Congress stepping in to pick winners and losers in ongoing litigation on constitutional rights not only raises separation of powers concerns but it veers near running afoul of the due process and takings clauses. Article II of this bill is the most extreme measure Congress, as best as I can find, has ever taken to interfere in ongoing litigation. Congress usually provides at least a figleaf of an alternative remedy when it takes away the judicial one. For example, in the National Childhood Vaccine Injury Act, Congress put a stop to Federal court actions but provided an alternative path for claims to be heard. The Public Readiness and Emergency Preparedness Act eliminated liability for people who take certain countermeasures during or after a pandemic outbreak. But a special fund for victims was established by Congress.

Today's effort is a naked intrusion into ongoing litigation. Where will that stop? Will Congress be able to rove at will through litigation anywhere in the judicial branch, picking winners and losers as we like? We don't just trespass on the separation of powers; we trespass onto dangerous ground.

If I were a litigant, I would challenge the constitutionality of the immunity provisions of this statute, and I would expect a good chance of winning.

I spoke before the Independence Day recess about article I of this bill, how proud I am of the work that went into it and the exemplary results we have achieved. Chairman Rockefeller, in particular, but many others as well, deserves commendation, first for resisting the Bush administration's unseemly efforts to create a legislative stampede and, second, for thoughtfully crafting an improved and modernized FISA Act that contains many new important protections for Americans. I will incorporate my reference of my previous remarks on that subject, but suffice it to say as an attorney general and a U.S. attorney who has run wiretap vehicles, article I is a fine piece of legislation which makes it all the more disappointing that the Bush administration will not tolerate an amendment to article II that allows for a proper hearing before the proper court set to the proper standard. It would be so easy to get article II right. So close and yet so far.

I close by reiterating my deep anger that the Bush administration unnecessarily created this mess in the first place, my frustration with the solution that Congress has established to the immunity question, and my hope that our great judicial branch will vindicate the error we in the legislative branch make today.

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Mr. SPECTER. Madam President, the statistics I have are, out of the House there have been 21 House Intelligence Committee members briefed and as many as 40 Judiciary Committee members; in the Senate, 15 on the Intelligence Committee and 19 on the Judiciary Committee for a bicameral total of 95, which is 17.75 percent of the entire Congress. But if you take the chairman's figures, you still have a majority of Members of Congress who have not been briefed, who are, in effect, delegating their authority to vote on a matter where they don't know what they are granting immunity for.

But I refer, again, to the Senator from Rhode Island, if he cares to answer the question.

Mr. WHITEHOUSE. Of course, I did say in my remarks that I believed that this body is incapable of making a determination as to the good faith of the telecommunications companies for the reason the distinguished Senator from Pennsylvania has indicated, to wit, very few of us, less than a majority and certainly not all of us, have been briefed as to what the actual facts are, what was provided, if anything, to the telecommunications companies that would support our finding of good faith.

As I said in my remarks, I think essentially every Senator who has spoken to this question has implicitly referred to good faith, directly referred to good faith as the implicit standard.

I view it, although I defer to the far greater experience and learning of my colleague from Pennsylvania--I see it less as a constitutional issue of deference than one of legislative prudence. I think it is not prudent for us as a Senate to take it upon ourselves to make the good-faith determination. I think that is a determination that should be made by a judicial tribunal, it should be made with appropriate provision for confidentiality, and it should be made by the judicial agency that customarily makes good-faith determinations.

It isn't our legislative role to do that. So I agree with the concern of the distinguished Senator about this. I see it less as a constitutional limitation on my ability as a Senator to cast my vote, which I think is untrammeled. I can cast my vote about things I know nothing about, have not studied on, am totally uninformed, if I wish. It would be bad and imprudent for me to do it, but I do not believe the Constitution prevents me from doing it, so I see it more as a matter of legislative prudence.

Mr. SPECTER. Madam President, one final question. Does the Senator from Rhode Island know of any case which has been pending in the Federal courts for at least 3 years, as the telephone company case has, with the opinion by Chief Justice Walker in July of 2006 and now pending on appeal in the Ninth Circuit, where the Congress stepped in to take away the jurisdiction by a grant of immunity as proposed in this legislation?

Mr. WHITEHOUSE. I am aware of none. I cannot guarantee that our research has been complete and exhaustive. But, certainly, the recent efforts that Congress has done where an immunity from liability has been an issue, either responding to pandemics or responding to vaccines, what Congress has done there is to create an alternative remedy.

I am aware of no precedent for the Congress of the United States stepping into ongoing litigation, choosing a winner and a loser, allowing no alternative remedy. And I believe the constitutional problem with doing that as a separation of powers matter is particularly acute where the cause of action that is being litigated in the judicial branch is a constitutional claim. And Judge Vaughan is listening to constitutional claims. That is the subject matter of the litigation.

So I believe it will be determined by a court that ultimately this section of the legislation is unconstitutional, in violation of the separation of powers, because we may not, as a Congress, take away the access of the people of this country to constitutional determinations heard by the courts of this country.

Mr. SPECTER. Judge Walker is certainly listening to constitutional claims. He may even be listening to the Senate. Somebody may be listening on C-SPAN 2.

I thank the distinguished Senator from Rhode Island for his candid answers.

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