American Housing Rescue and Foreclosure Prevention Act of 2008

Floor Speech

AMERICAN HOUSING RESCUE AND FORECLOSURE PREVENTION ACT OF 2008 -- (Senate - June 25, 2008)

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Mr. WYDEN. Madam President, soon the Senate will take up the Foreign Intelligence Surveillance Act. It, of course, is known as FISA. FISA may not be a household word to most Americans, but a properly written FISA reauthorization is exceptionally important to the well-being of our country and it needs to meet a simple test: It must allow our country to fight terrorism ferociously and still protect our individual liberty.

I do not know how many Senators have traveled to the other end of Pennsylvania Avenue to personally read the legal opinions from the Department of Justice on the warrantless wiretapping program that is at the center of this debate. Someday these opinions are going to become public. Someday the American people will see how flimsy the legal reasoning is behind warrantless wiretapping. Someday the American people will see the damage that is done to our Nation when the executive branch tries to rewrite important national security law in secret.

The warrantless wiretapping program is not the first of this administration's counterterrorism programs that is built on legal quicksand. We have seen the coercive interrogation program, and the detention program at Guantanamo. Again and again on these vital counterterrorism programs, the administration has overreached, it has fallen short, and then it has come to the Congress and asked that the Congress clean up these legal messes. I am especially troubled by the provisions in this reauthorization of the FISA bill that grant blanket retroactive immunity to any telecommunications company that participated in the warrantless wiretapping program. I want to spend a few minutes to unpack this issue and discuss why I think it is such a significant mistake to reauthorize the program in this fashion and to have what amounts to a blanket amnesty provision for those who may have been involved in illegal activity.

Many have argued that companies that were asked to participate in the warrantless wiretapping program should be treated leniently since they acted during a state of national panic and confusion. I have given this argument a lot of thought and, frankly, I think there is a valid rationale behind that thinking if you are talking about a short period of time. But that is not what is being discussed here. The warrantless wiretapping program did not last for a few weeks or a few months as America worried about the prospect of another attack. It went on for nearly 6 years. At some point during that nearly 6-year period, any company participating in the program had an obligation to stop and to consider whether what they were doing was legal.

Others have suggested that if you do not give amnesty to the companies now, it is going to be impossible to get cooperation from other companies in the future in the fight against terrorism. I do not buy that argument. Our country is full of patriotic citizens and businesses that are eager to do their part and to serve their Nation. I will say, I think it is insulting to suggest that American businessmen and women will be less patriotic if the Congress does not grant amnesty to the phone companies. People of this country love our Nation, and I believe they step up, they come forward whenever they can.

I hope, however, that they are not going to say: Well, okay, when the Government breaks the law we will automatically step forward in those instances. When American businesses are asked to participate in a program that looks as if it could be illegal, we all say, that is the time to hold on. I think it is important, particularly for our major businesses, to follow the law and not just the words of the President. I am disappointed that this legislation includes this amnesty provision. I hope as colleagues continue to examine the bill, they understand what is at issue.

If the legislation passes, the Attorney General will be able to stop any of the lawsuits against the companies dead in their tracks. All the Attorney General will have to do is tell the judges considering these cases that any corporation that participated in the program was told by the Government that what they were doing was legal. They will not have to actually prove it was legal, they will not have to provide any evidence, they will not have to cite any statutes, they will not have to make any legal arguments whatsoever.

In my view, this amounts to self-certification. Self-certification runs counter to the whole idea of the Foreign Intelligence Surveillance Act in the first place. The Foreign Intelligence Surveillance Act is based on the notion that the way to keep classified intelligence activities from intruding on Americans' privacy is to make sure there is a significant measure of independent judicial oversight. The judges in this situation will be allowed to examine as many documents as they like. But, in this instance, they will not actually be allowed to exercise independent judgment at all. As long as they see a piece of paper, a piece of paper that gets held up from a few years ago, a Presidential permission slip, if you will, that claims the program is legal, they will be required to grant immunity to the phone companies. Even the distinguished leader in the House, the minority whip, has acknowledged that this would be a mere ``formality.''

The concept of independent oversight that is so central to the Foreign Intelligence Surveillance Act and that has worked so well in practice simply, in my view, should not be transformed into an approach that effectively permits the administration to self-certify with respect to these particular cases.

I want to be clear that I cannot begin to divine how various matters in litigation will come out. In addition to the constitutional issues that are at stake, there is a number of contentious matters regarding standing, injury, a host of very difficult legal problems involved. I think the judges in these cases will need to consider all of the issues if the cases go forward. That is what makes the judicial process in the original statute so important. It is independent. They look at all of the factors that are relevant. But I will say that I did not think the Congress or I should substitute our judgment for the judgment of the courts, and that is, in effect, what happens if the legislation goes forward as written and blanket immunity is granted to every company that participated in the program.

It saddens me to have to oppose the legislation as written. I do so knowing that the bill contains a number of very important provisions and, with respect to individual liberty and the rights of our people, contains some significant steps forward. I am especially grateful to Senators Rockefeller and Bond for working very closely with me to ensure that Americans who travel overseas don't lose their rights when they leave America's shores. That is the status today, regrettably. In this area, Senators Rockefeller, Bond, myself, Whitehouse, Feingold, a number of us who serve on the Senate Select Committee on Intelligence worked in a constructive, good-faith way with the Bush administration. In this legislation, we have put into law that in the digital age, your rights are going to travel with you. You don't lose your rights. If you are a serviceman from the State of Missouri or a businessperson from another part of the country, you won't lose your rights when you leave American soil. That is as it should be. It is a significant expansion of the individual liberties of our citizens. They should not give up their rights when they travel. They ought to have rights that do travel in a world with modern communications and modern transportation. That provision is part of this reauthorization.

However, I feel so strongly about the ill-advised nature of the provisions that provide for blanket amnesty that I must oppose this bill as written. I think when history looks back at what happened, the warrantless wiretapping program, they are going to say that this program, along with several other flawed counterterrorism programs that have come from this administration, was a mistake. We should not compound those mistakes by reauthorizing this legislation that contains a blanket grant of immunity at a time when Americans understand that it is possible to fight terrorism relentlessly, fight terrorism ferociously without trashing our rights and liberties simultaneously.

We can do better. The Senate will have an opportunity to do better. A number of colleagues are going to be advocating proposals to strip the legislation of the amnesty provision. I hope those provisions will be successful.

I would like to pass this bill when we have an opportunity to strike a better balance between fighting terrorism aggressively and protecting the liberties of our citizens.

With that, I yield the floor.

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