Senator Carl Levin’s Floor Statement on the FISA Ammendments: 07/08/08

Mr. President, Title II of this bill would authorize retroactive immunity for telecommunications companies who collected intelligence information inside the United States in defiance of the clear requirements of the Foreign Intelligence Surveillance Act as it was then on the books. The argument has been made that we must provide such immunity, because these telecommunications companies responded to requests from the government in a time of great uncertainty after the events of September 11, 2001.

While I have some sympathy for their situation, I also have sympathy for innocent Americans who may have had their privacy rights violated as a result of illegal actions taken by telecommunications companies at the behest of an Administration that has all too frequently tried to place itself above the law. The bill before us makes no effort to reconcile these competing interests. Instead, it requires the dismissal of all civil suits against telecommunications companies who may have illegally disclosed confidential communications of their customers at the behest of U.S. government officials. Dismissal would also be required, even if the disclosure violated the constitutional rights of innocent U.S. citizens whose confidential communications were illegally disclosed.

The so-called judicial review authorized in this bill is totally unsatisfactory. Under title II of the bill, the FISA court would be permitted to review these cases only to determine whether the Attorney General or the head of an element of the intelligence community told telecommunications companies that the government request had been authorized by the President and “determined to be lawful” – presumably by anybody – even if nobody could reasonably have believed that the request actually was lawful. A judicial review that is limited to determining whether the Administration claimed that its actions were legal is a sham review that provides no justice at all. Of course the Administration claimed that its actions were legal. Indeed, the Intelligence Committee report on this bill specifically states that the Administration letters requesting assistance from telecommunications companies made the claim that these actions were legal. I do not believe that a congressional grant of retroactive immunity is fair, I do not believe that it is wise, and I do not believe that it is necessary.

Retroactive immunity is not fair, because it leaves innocent American citizens who may have been harmed by the unlawful or unconstitutional conduct of telecommunications companies at the behest of the Administration without any legal remedy at all. It is hard to understand how the Attorney General can claim, as he does in a letter dated July 7, 2008, that this is “the fair and just result.”

Those who have been harmed are not likely to have any recourse against the government officials who asked telecommunications companies to disclose the private information of their customers, because government officials enjoy qualified immunity for actions taken in their official capacity. These officials don’t even have a burden of demonstrating that their actions were legal and constitutional to be immune from suit.

Nor is retroactive immunity wise, because it sets a dangerous precedent of retroactively eliminating rights of U.S. citizens and precludes any judicial review of these claims. If we act here to immunize private parties who cooperated with executive branch officials in a program that appears to have been illegal on its face, our laws and their prohibitions will be less of a deterrent to illegal activities in the future. This would be a terrible precedent if a future Administration is as inclined as the current one to place itself above the law.

Finally, retroactive immunity is not necessary for the intelligence community to collect intelligence against terrorists using newly-available technology. Title I of the bill provides that the Attorney General and the Director of National Intelligence can direct telecommunications companies to assist in collection programs, and these directives are enforceable by court order, just as has been the case since the Protect America Act was adopted last August. We are collecting needed intelligence information today pursuant to that Act, without any retroactive immunity for telecommunications companies, and there is no reason why we can not continue to do so in the future under title I of the bill, without the retroactive immunity provided in title II.

The Administration argues that if we don’t provide retroactive immunity to telecommunications providers, “companies in the future may be less willing to assist the Government.” But let’s be clear what we are talking about here. Telecommunications companies have prospective immunity if they assist the government in a manner that is authorized by this bill. Moreover, they can be compelled to do so under this bill, as has also been the case since the enactment of the Protect America Act. What companies might be less willing to do is to assist the government in intelligence gathering efforts that are illegal. What’s wrong with that? Do we really want to encourage companies to assist a future Administration in unlawful intelligence gathering efforts?

Nor is retroactive immunity necessary to protect telecommunications companies who acted in good faith reliance on representations from Administration officials. There are other ways in which we could recognize their equity without insulating misconduct from judicial review and without denying any relief to innocent U.S. citizens who may have been harmed. For example, we could safeguard these interests by substituting the United States as the defendant in cases against telecommunications companies, or by requiring that the United States indemnify telecommunications companies for any damages in such cases. In either case, we could cap damages to ensure that the taxpayers are not required to bear an unreasonable burden as a result of unlawful actions by the Administration. We could also provide a measure of protection to American citizens whose rights have been violated by limiting the immunity provided to those cases where the telecommunications companies demonstrate that they had a reasonable basis for a good faith belief that the assistance they were providing was lawful – a requirement that is notably absent from the bill before us.

The Bingaman amendment is a very modest proposal which doesn’t decide the retroactive immunity question or remove the retroactivity immunity provision from the bill. It leaves the retroactive immunity provision in the bill, but postpones the effective date of that immunity until 90 days after Congress receives the comprehensive Inspector General report required by the bill. This amendment doesn’t have any affect at all on title I of the bill, which allows the intelligence community to collect information using newly-available technology. The Bingaman amendment allows title I to go into law without change and without delay.

The Inspector General report may give us important information that helps us understand the extent to which the Administration’s actions were illegal or unconstitutional and the extent to which innocent U.S. citizens may have been damaged by these actions. The delayed effective date in the Bingaman amendment would give us the opportunity to consider this information – not just the assurances of Administration officials – before retroactive immunity goes into effect and cases are dismissed. That information is surely relevant to this issue.

If we adopt the Bingaman amendment, we will have highly relevant information about the extent to which illegal or unconstitutional actions were taken against innocent American citizens and the extent to which those citizens were harmed by those actions. The Bingaman amendment gives us an opportunity to take this additional information into account before retroactive immunity takes effect, while at the same time preventing any harm to telecommunications companies by staying any litigation against them until the information becomes available.

Mr. President, we can pass this bill, and ensure that the intelligence community continues to have the authority to collect information on suspected terrorists, without surrendering the rights of Americans whose privacy may have been violated. I support the Bingaman amendment as a way to introduce a bit of balance into the process of protecting the privacy of innocent U.S. citizens while recognizing some equity in the position of the telecommunications companies.