Statement of Senator Carl Levin on the FISA Amendments Act of 2007 (S. 2248): 02/13/08

Mr. President, last year Congress passed a temporary bill with a six month time limit that would give us the opportunity to carry out a thorough, thoughtful examination of how to utilize complicated new technologies in the surveillance of suspected terrorists without invading the privacy of innocent Americans. In the months since we passed that temporary act, we have worked in a bipartisan manner to consider the best course forward for permanent changes to the Foreign Intelligence Surveillance Act. Despite the enormous complexity of these issues, we reached a bipartisan consensus on the key provisions contained in Title I of the bill we are considering today.

I believe that Title I of the bill before us appropriately provides the Intelligence Community the authority it needs to collect intelligence information on suspected terrorists. The collection of that intelligence is important to our national security and merits congressional support. That is why I helped write the Rockefeller-Levin substitute amendment that we voted on last summer, why I voted in favor of the Leahy substitute amendment that we considered in January, and why I support Title I of the bill before us today. In my view, the Rockefeller-Levin substitute, the Leahy substitute, and Title I of this bill all provide for the appropriate collection of intelligence information on suspected terrorists.

Title I of this bill would provide the needed authority for collection of that information in a responsible manner.

  • Title I of this bill, unlike the temporary act which we passed last summer, would not authorize the targeting of U.S. persons for electronic surveillance without probable cause.
  • Title I of this bill, unlike the temporary act, would not authorize the Administration to collect communications (including communications to and from U.S. persons) for months without even submitting the collection program for court approval.
  • Title I of this bill, unlike the temporary act, would not authorize the Administration to continue to collect such communications for an extended period even after the FISA court has specifically rejected an application for approval.
  • Title I of this bill, unlike the temporary act, would expressly authorize judicial review of the targeting and so-called minimization procedures in order to protect the privacy rights of U.S. persons.
  • Title I of this bill, unlike the temporary act, would require regular Inspector General reviews and regular reports to Congress on any authorized collection program.

I congratulate Senator Rockefeller and other colleagues on their success in achieving the Administration’s support for these well-crafted Title I provisions, which are significant improvements over the temporary bill hastily adopted last year.Title II of the bill is a different story. Title II would eliminate accountability by granting retroactive immunity for telecommunications providers who disclosed communications and other confidential information of their customers at the behest of government officials. They did this despite a law specifically making it illegal to do so. Unlike Title I, there is no bipartisan agreement on Title II.

Title II would require dismissal of lawsuits brought by persons claiming injury from interception and disclosure of their communications, even if the activity resulting in the injury was illegal. It would require dismissal of lawsuits, even if the disclosure violated the constitutional rights of individuals whose personal information was illegally disclosed. It would require dismissal of lawsuits, even if innocent U.S. citizens were damaged by the disclosure or compromise of confidential personal information.

Retroactive immunity is not fair. It is not wise. And it is not necessary.

Retroactive immunity is not fair, because it leaves American citizens who may have been harmed by the alleged unlawful conduct of these providers without any legal remedy.

Retroactive immunity is not wise, because it precludes any judicial review of that conduct. I am deeply concerned that if we act here to immunize private parties who participated in a program that appears to have been clearly illegal, we may encourage others to engage in such illegal activities in the future. In a free society, illegal activity cannot be excused on the grounds that government officials asked you to carry it out. There must be accountability for illegal acts. As written, Title II eliminates some critically required accountability.

Nor is retroactive immunity is necessary. Congress has already ensured the future cooperation of the telecommunications providers with the Intelligence Community in the Protect America Act adopted last August. That Act authorizes the Attorney General or the Director of National Intelligence to direct telecommunications providers to disclose certain information, and provides prospective immunity to telecommunications providers that cooperate with such directives.

Title I of the bill before us appropriately continues to provide prospective immunity to telecommunications providers. Title I states: “Notwithstanding any other law, no cause of action shall lie in any court against any electronic communication service provider for providing any information, facilities, or assistance in accordance with a directive issued by the Attorney General or the Director of National Intelligence pursuant to the act.”

In light of the prospective immunity in Title I, which is appropriately in this bill, the retroactive immunity of Title II is not necessary to ensure the future cooperation of telecommunications providers who receive legitimate requests for information from the intelligence community.

The argument has been made that we must provide retroactive immunity to the telecommunications providers to ensure the cases against them are immediately dismissed because if the cases are permitted to proceed, vital national security information will be disclosed. But the Courts have numerous tools at their disposal to protect such information and have successfully used these tools throughout our history. They can review evidence in a classified setting; they can redact documents; they can even dismiss a case for national security reasons if they deem it necessary to do so.

Some have even taken the position that the mere existence of this litigation, even without the disclosure of any information, will somehow help the terrorists. But the President has already disclosed the existence of the collection program at issue. It has been discussed in Congress and in the press. The Director of National Intelligence has publicly discussed the program.

There is a way to properly immunize from legal liability telecommunications providers who acted in good faith based on the assurances of appropriate administration officials. The way to do that is by substituting the United States for the telecommunications providers as the defendant in lawsuits based on the actions of those providers. That substitution would safeguard telecommunications providers from liability just as effectively as the retroactive immunity language in Title II of the bill. But unlike the retroactive immunity language of Title II, it would not leave persons who can prove they were victims of unlawful actions without a remedy.

We can ensure that any such innocent victims retain whatever legal rights they have under applicable law, except that the U.S. Government would be substituted for the telecommunications providers as the defendant in such lawsuits. And it is appropriate that the Government be liable rather than the telecommunications providers, since the disclosures were allegedly made by the providers in these cases at the request of senior executive branch officials based on appeals to help safeguard U.S. security and assurances that the providers would be protected from liability regardless of the requirements of law.

We had a number of opportunities to provide equity both to the telecommunications providers and to any injured citizens.

  • We had the opportunity to adopt the Dodd-Feingold amendment, which would have struck Title II from the bill, allowing us to adopt a new approach that protects both the equities of telecommunications providers who acted in good faith and those of people who were allegedly injured by their illegal actions.
  • We had the opportunity to adopt the Specter-Whitehouse substitution amendment, which would have fully protected telecommunications providers, without depriving American citizens who were harmed by unlawful collection of their personal information of a legal remedy. It did so by substituting the United States for the telecommunications providers as the defendant in lawsuits based on the actions of those providers. That substitution would safeguard telecommunications providers from liability just as effectively as the retroactive immunity language in title II of the bill.
  • And we had the opportunity to adopt the Feinstein amendment, which would have limited immunity to those telecommunications providers who are found by a court to have acted in reasonable, good faith reliance on assurances from executive branch officials.

The adoption of these amendments would have made a significant improvement to the bill. With their rejection, I cannot support this bill despite my support for Title I, which again, appropriately, authorizes the collection of intelligence. But it is my hope that a bill comes from conference with the House of Representatives that includes appropriate changes to eliminate unfair, unwise and unnecessary retroactive immunity provisions.