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Senate Proceeding on Jul 8th, 2008 :: 1:47:49 to 2:08:58
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1:46:43 to 1:47:49( Edit History Discussion )
Speech By: Russell Feingold

1:47:31 to 1:47:49( Edit History Discussion )

Russell Feingold: associated with such an attack on the rule of law in this country. mr. president, i yield the floor. the presiding officer: who yields time? a senator: mr. president? the presiding officer: the senator

1:47:49 to 1:48:00( Edit History Discussion )

John Rockefeller: from west virginia. mr. rockefeller: i am opposing the amendment, so i would be taking time from senator bond and i ask for approximately 20 minutes. the presiding officer: duly noted. mr. rockefeller:

1:47:49 to 2:08:58( Edit History Discussion )
Speech By: John Rockefeller

1:48:00 to 1:48:13( Edit History Discussion )

John Rockefeller: first, not included in the 20 minute, i have one unanimous consent for a committee to meet during today's session of the senate. it has the approval of the majority and minority leaders. i ask unanimous

1:48:13 to 1:48:34( Edit History Discussion )

John Rockefeller: consent that the requests be agreed to and that the requests be printed in the record. the presiding officer: without objection. mr. rockefeller: mr. president, my colleagues have offered two amendments

1:48:34 to 1:48:48( Edit History Discussion )

John Rockefeller: seeking to accomplish somewhat the same goal before and in a sense now it's down to one. senators dodd and feingold offered an amendment to strike title 2 of the fisa bill. very simple and they're very

1:48:48 to 1:49:03( Edit History Discussion )

John Rockefeller: clear about that. the amendments have the same effect, eliminating a title that to have the united states court to consider if pending suits against telecommunication companies should be dismissed. two

1:49:03 to 1:49:23( Edit History Discussion )

John Rockefeller: other amendments with respect to title 2 being offered by senator specter and senator bingaman will follow. while i address those amendments in separate statements, i would like to say now with

1:49:23 to 1:49:45( Edit History Discussion )

John Rockefeller: respect to the amendments i oppose each of them. and i urge that the senate pass h.r. 6304 without amendment so that the delicate compromise which serves as best it can to both protect national

1:49:45 to 1:49:59( Edit History Discussion )

John Rockefeller: security and privacy and civil liberties can, in fact, become law. now, 6 1/2 years ago instead of consulting with congress, about changes that might be needed to fisa, the president made a misguided

1:49:59 to 1:50:17( Edit History Discussion )

John Rockefeller: decision to create a secret surveillance program. that circumvented the judicial review process and authorization required by fisa and was kept from the full congressional oversight committees. that's

1:50:17 to 1:50:33( Edit History Discussion )

John Rockefeller: calling it running around the end all together. we are right to be angry about the president's actions. but our responsibility today is to look forward. that's what this bill is about. to make sure

1:50:33 to 1:50:49( Edit History Discussion )

John Rockefeller: that we have adequately dealt with the numerous issues that have arisen from the president's very poor decision. bad decision. the bill in front of us today accomplishes three important goals, mr.

1:50:49 to 1:51:05( Edit History Discussion )

John Rockefeller: president. with respect to the president's warrantless program. first, the bill establishes a sure and realistic method of learning the truth about the president's program. repeat, learning the truth

1:51:05 to 1:51:22( Edit History Discussion )

John Rockefeller: about the president's program. it requires the relevant inspectors general. now that's a term of art. what i mean by that is the inspectors general of the c.i.a., d.o.d., n.s.a., etc., etc., you know, people

1:51:22 to 1:51:40( Edit History Discussion )

John Rockefeller: who oversee and know what's in this program all together. to submit an unclassified report about the program to the congress. this report will ensure that both congress and, by the way, therefore obviously

1:51:40 to 1:51:57( Edit History Discussion )

John Rockefeller: the public, will have a complete picture of the president's warrantless surveillance program as possible. or as messy as it may be for them to ingest. second, the bill tightens the exclusivity of the fisa

1:51:57 to 1:52:11( Edit History Discussion )

John Rockefeller: law making it improbable for any future president to argue that acting outside of fisa is lawful. that is huge. that means the president can never again ever use what he has used his all-purpose powers

1:52:11 to 1:52:24( Edit History Discussion )

John Rockefeller: and say that i he can just walk right around the end of fisa. he has to have the statutory authority. it has to come from us. and he cannot bypass fisa as he did all together. and, third, the bill

1:52:24 to 1:52:46( Edit History Discussion )

John Rockefeller: addresses the problems that the president's decision has caused for the telecommunication companies who, we're told that their cooperation was both legal and necessary to prevent another terrorist attack.

1:52:46 to 1:53:02( Edit History Discussion )

John Rockefeller: they weren't told a lot. but they were certainly told that. the bill does not provide those companies with a free pass. it requires -- it requires meaningful district court review of whether statutory

1:53:02 to 1:53:17( Edit History Discussion )

John Rockefeller: standards for protection for liability have been met for the companies that metith the written representations of legality. there was a period where we're using the fisa court to make these kinds of judgments.

1:53:17 to 1:53:32( Edit History Discussion )

John Rockefeller: and we bent to the better wisdom of the house with respect to the district court which is a more public court and so they have that responsibility. all of these pieces fit together, and not just because

1:53:32 to 1:53:49( Edit History Discussion )

John Rockefeller: they're part of a larger compromise on this bill. private companies who cooperated with the government in good faith, as the facts before the congressional intelligence committees demonstrate they did,

1:53:49 to 1:54:04( Edit History Discussion )

John Rockefeller: should not be held accountable for the president's bad policy decisions. but if the court ultimately dismisses the litigation against those companies, it is important that there be a mechanism for public

1:54:04 to 1:54:17( Edit History Discussion )

John Rockefeller: disclosure about the president's program and it is precisely therefore in this bill that the inspector general's report which has to be provided to us within a year provides that public accountability.

1:54:17 to 1:54:31( Edit History Discussion )

John Rockefeller: likewise, we can only put past actions behind us if we can be reassured that thi will not happen again in the future. and therefore the strength of the exclusivity language in the fisa bill addresses

1:54:31 to 1:54:48( Edit History Discussion )

John Rockefeller: that concern. and it does. together the three components of the bill provide public accountability for the mistakes of the past as well as a way to move forward. although title 2 in the bill before

1:54:48 to 1:55:03( Edit History Discussion )

John Rockefeller: us today differs in important ways from the title 2 that we passed out of the senate in this past february, the two bills address the same underlying problems faced by the telecommunication companies.

1:55:03 to 1:55:17( Edit History Discussion )

John Rockefeller: because of the majority of the information in the cases is classified, there has been no substantial progress in the cases against the telecommunication companies. several of them -- several of them

1:55:17 to 1:55:36( Edit History Discussion )

John Rockefeller: have been going on for several years. classified information, they can't have it. state secrets, can't have it. the government has not even allowed the telecommunication companies in the many pending

1:55:36 to 1:55:55( Edit History Discussion )

John Rockefeller: lawsuits to disclose publicly whether or not they assisted the government. these companies, therefore, have not been permitted to invoke the defense to which they are entitled. but sued, they are. the companies

1:55:55 to 1:56:10( Edit History Discussion )

John Rockefeller: cannot reveal, for example, whether they did not participate in the program. no, that would be a false accusation against some company that they can't say that they didn't participate. or that they only

1:56:10 to 1:56:23( Edit History Discussion )

John Rockefeller: -- participated pursuant to a court order. can't talk about that. or participated in reliance of written government representation of legality. cannot talk about that. the bill before us today allows

1:56:23 to 1:56:38( Edit History Discussion )

John Rockefeller: these defenses to be presented in the district to -- to the district court. the public court, not the fisa court, which is kind of a secret court, but to the district court, which is not a secret court.

1:56:38 to 1:56:53( Edit History Discussion )

John Rockefeller: it's a public court. and the attorney general is authorized to certify to the court that particular statutory requirements have been met without requiring public acknowledgement of whether particular providers

1:56:53 to 1:57:12( Edit History Discussion )

John Rockefeller: assisted to the government. the bill then requires the district court to determine whether the attorney general's certification is supported by -- quote -- "substantial evidence." close quote.

1:57:12 to 1:57:31( Edit History Discussion )

John Rockefeller: now that is a higher, tougher standard than the abuse of discreti test that we had in the senate bill. in making this assessment, the district court is specifically authorized to review the underlying

1:57:31 to 1:57:52( Edit History Discussion )

John Rockefeller: documents on which the attorney general's certification is based. the court can therefore review any court orders, statutory directives, or certifications authorizing providers cooperation. importantly,

1:57:52 to 1:58:08( Edit History Discussion )

John Rockefeller: the court may also review the highly classified documents provided to the companies accounting that the president had authorized the program and it had been determined to be lawful. explicitly allowing

1:58:08 to 1:58:23( Edit History Discussion )

John Rockefeller: the court to base its decision on whether companies are entitled to liability protection on relevant underlying documents is an important improvement to the bill. and i'm happy it's in it. because such

1:58:23 to 1:58:38( Edit History Discussion )

John Rockefeller: documents would be classified, any review of those documents in the litigation prior to this bill would have been limited to a court assessment of whether the documents were privileged. the court could

1:58:38 to 1:58:53( Edit History Discussion )

John Rockefeller: not have relied on what the government's communication to the providers actually said. in making its assessment about whether the cases should be dismissed. the court could not have relied on them, what

1:58:53 to 1:59:09( Edit History Discussion )

John Rockefeller: those government communications said. well, it's different. this bill before the senate, therefore, gives the district court both an important role in determining whether statutory requirements

1:59:09 to 1:59:25( Edit History Discussion )

John Rockefeller: for liability protection have been met and the tools to make that assessment. the fisa bill also provides a more explicit role for the parties to the litigation. this is new. and better. to ensure

1:59:25 to 1:59:44( Edit History Discussion )

John Rockefeller: that they will have their day in court. sort of and so to speak. but that they will have their day in court. they are provided the opportunity to brief the legal and constitutional issues before

1:59:44 to 2:00:02( Edit History Discussion )

John Rockefeller: the court and may submit documents to the court for review. whatever it is they want to submit, they can smivment| a few of my colleagues have argued including any mechanism to allow the district court

2:00:02 to 2:00:19( Edit History Discussion )

John Rockefeller: to resolve these cases will prevent the public from learning the details about the president's program. but even if litigation were continue indefinitely it would never tell the full story. lawsuits

2:00:19 to 2:00:36( Edit History Discussion )

John Rockefeller: have now been pending for, as i indicated, over two years. the fight during all of that time and the likely fight in the future has been about whether the plaintiff will have access to any classified information

2:00:36 to 2:00:53( Edit History Discussion )

John Rockefeller: about the program. the plaintiff in the litigation litigation -- they have never been and will never be provided with wide-ranging information about the president's classified program that would

2:00:53 to 2:01:09( Edit History Discussion )

John Rockefeller: enable them to put together a comprehensive picture of what happened. this capability is reserved for those who have complete access to information about the program and that, again, is why i come back

2:01:09 to 2:01:24( Edit History Discussion )

John Rockefeller: to the importance of the inspectors' general aspect of this oversight. people could say, well, inspectors general, yeah, them and their reports. inspectors general can take apart their agencies and they

2:01:24 to 2:01:41( Edit History Discussion )

John Rockefeller: are sort of in there to do that. that is why we have asked the inspectors generals of these relevant intelligence agencies, including the d.o.d. who do, in fact, have complete access to information about

2:01:41 to 2:01:55( Edit History Discussion )

John Rockefeller: the program, to conduct a comprehensive review of that same program, the whole thing. the fisa bill requires the report of the review be submitted to the congress in the year and requires that the report

2:01:55 to 2:02:12( Edit History Discussion )

John Rockefeller: apart from any classified annex be submitted to an unclassified form that can be made available to the public. that's not a dodge, that's simply a fact. you can't release classified information to

2:02:12 to 2:02:28( Edit History Discussion )

John Rockefeller: the public. so this is an appropriate way to obtain answers to questions about the president's program and ensure the public's accountability. critics have also claimed that granting immunity will suggest to

2:02:28 to 2:02:49( Edit History Discussion )

John Rockefeller: the telecommunications company that -- companies that compliance with the law is optional or that congress believes that the president's program was legal. an examination of the bill that is before us

2:02:49 to 2:03:08( Edit History Discussion )

John Rockefeller: here in the senate would make it impossible for anyone to come to either conclusion. the administration made very strained arguments to circumvent existing laws in carrying out the president's warrantless

2:03:08 to 2:03:26( Edit History Discussion )

John Rockefeller: surveillance program. they claim, for example, that the 2001 authorization for use of military force was a statutory authorization for electronics surveillance outside of fisa even though, mr. president, that authorization

2:03:26 to 2:03:38( Edit History Discussion )

John Rockefeller: did not mention electronics surveillance. and what role did we expect the telecommunication companies to play in those assessments of legality? to answer that question we must consider the legal regime

2:03:38 to 2:03:55( Edit History Discussion )

John Rockefeller: under which these companies were operating. numerous statutes over the years have stressed the importance of cooperation between the telephone companies and the federal government particularly in times

2:03:55 to 2:04:11( Edit History Discussion )

John Rockefeller: of emergency. this has a fairly long history. fisa itself allows the attorney general to authorize electronics surveillance for short periods of time, in emergencies, prior to the submission of an application

2:04:11 to 2:04:28( Edit History Discussion )

John Rockefeller: for an order. and the law as it existed in 2001 and as it exists today grants immunity to telecommunication companies based solely on a certification from the attorney general that no warrant or

2:04:28 to 2:04:43( Edit History Discussion )

John Rockefeller: court order is required by law. that statutory requirements have been met, and that the specified assistance is required. given the need for a speedy cooperation in times of emergency, congress has

2:04:43 to 2:04:59( Edit History Discussion )

John Rockefeller: never asked companies to question the government's legal analysis that their cooperation is legal and necessary. thus, although the telecommunication companies have always been and will always be

2:04:59 to 2:05:17( Edit History Discussion )

John Rockefeller: expected to comply with the law, congress has told them prior to 2001 that they were entitled to rely on representations from the highest levels of government as to what conduct was legal. that's

2:05:17 to 2:05:35( Edit History Discussion )

John Rockefeller: the way it worked. and in the case of the president's surveillance representations of legality were made to providers from the very highest levels of government. the fisa bill before the senate, therefore,

2:05:35 to 2:05:58( Edit History Discussion )

John Rockefeller: eliminates any possible loopholes in existing law ensuring that neither the telecommunication companies nor any future president have any doubt about what is required to comply with the law. it

2:05:58 to 2:06:13( Edit History Discussion )

John Rockefeller: strengthens the ex-exclusivity language of fisa making it absolutely clear that the congress does not intend general statutes to be an exception to fisa's exclusivity requirements so no future president

2:06:13 to 2:06:31( Edit History Discussion )

John Rockefeller: can claim that an authorization for use of military force allows the government to circumvent fisa. even more importantly for the telecommunication companies the bill before us makes it a criminal

2:06:31 to 2:06:48( Edit History Discussion )

John Rockefeller: offense to conduct electronics surveillance outside of specifically listed statutes. unlike existing criminal and civil penalties which exempt electronics surveillance that is authorized by statute the

2:06:48 to 2:07:04( Edit History Discussion )

John Rockefeller: bill puts telecommunication companies on notice that any electronics surveillance outside of fisa or specifically listed criminal intercept provisions in the future, is a criminal offense that is subject

2:07:04 to 2:07:22( Edit History Discussion )

John Rockefeller: to civil penalties for claims brought by individuals. that were free to do so. this clear language provides no room for any future president or attorney general to argue that criminal and civil penalties

2:07:22 to 2:07:36( Edit History Discussion )

John Rockefeller: should not attach for any circumvention of fisa. now, the improvements to this bill address many of the concerns raised by the possibility that the court might dismiss the lawsuits against the telecommunications

2:07:36 to 2:07:54( Edit History Discussion )

John Rockefeller: companies. the bill before us makes clear that congress expects compliance with the laws and ensures that public accountability is on the government where it belongs and not on the companies that

2:07:54 to 2:08:13( Edit History Discussion )

John Rockefeller: acted in good faith in cooperating with the government. i might say that the -- it is important to say that whatever the inspectors general come up with in their analysis of this -- and believe me,

2:08:13 to 2:08:28( Edit History Discussion )

John Rockefeller: they will be under the gun to do it right -- they have to report that both unclassified and classified to intelligence committees and judiciary committees in both houses -- so the oversight factor

2:08:28 to 2:08:44( Edit History Discussion )

John Rockefeller: again comes in. mr. president, i think it's time to pass this bill and move forward. i urge my colleagues to oppose the dodd-feingold amendment. mr. president, i yield the floor. mr. specter: mr. president,

2:08:44 to 2:08:58( Edit History Discussion )

John Rockefeller: would the chairman yield for a question -- two questions, very briefly? mr. rockefeller: of course. mr. specter: the first question relates to the fact as represented some 70 members of the senate have not

2:08:58 to 2:09:17( Edit History Discussion )

Arlen Specter: been briefed on the program. i've been advised by leadership in the house that most of the members of the house have not been briefed on the program; that the chairman, in detail, went over what the

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