FISA Amendments Act of 2008

Floor Speech

FISA AMENDMENTS ACT OF 2008 -- (Senate - July 08, 2008)

BREAK IN TRANSCRIPT

Mrs. BOXER. Mr. President, I rise today to speak in strong support of the amendment offered by Senator Dodd to strike the provision from the bill providing immunity to the telecom companies who assisted President Bush with his warrantless surveillance program; in essence, breaking the law they were supposed to live by. I also note that not every telecom company went along with this. There was at least one, Qwest, that refused to go along because they said it would break the law if they did so. I thank Senators Dodd, Feingold, Leahy, and others for their leadership. I know these are difficult debates to have because people could say: My goodness, they are offering an amendment to the intelligence bill and, ipso facto, that must be a bad thing because they are slowing things down.

I have to say, when you are standing up to fight for liberty and justice and the truth, you should never be afraid to slow something down. As a matter of fact, it is our job to do so. I do thank my colleagues for their leadership.

I am proud to be a cosponsor of this amendment. In my support of this amendment to strike the immunity to the telecom companies who went along with the President's secret and, I believe, illegal program, I wish to say I am not seeking punishment for them. As a matter of fact, I have stated a long time ago that I support indemnification for the telecom companies. I believe Senator Whitehouse took the lead on that. Senator Specter, at one point, I think, was involved in that and others. I thank them for their leadership on that issue.

I understand the predicament of a company that is facing the White House and the White House is saying: You need to spy on your customers because we are asking you to do it for the safety of the people. I understand their predicament. But I do believe, at this point in time, to give retroactive immunity kind of makes a mockery of the fact that we are supposed to be a government of laws, not people. We are a government of laws. Do we then come back and say: By the way, there are three laws over here we don't like so we are going to say to the people who broke them, it is OK, because we have looked at it and we think it is OK? This is America. We are a country of laws. So this issue is so important. I can't overstate how deeply I feel about it.

We cannot place the interests of the companies and, frankly, of this administration, that doesn't want the truth to come out, ahead of the constitutional rights of our citizens who seek justice in our courts. This administration is so desperate to have this immunity because they have no interest in the American people finding out the truth.

In another subject area, I had a press conference today with a wonderful man who stood up and quit the Environmental Protection Agency because they were thwarting him every step of the way as he tried to tell the truth about the real dangers, as a matter of fact, the endangerment posed by global warming. He sent the White House an e-mail, and it was entitled ``Endangerment Finding.'' The White House called and said: Take it back. We don't want to open it. And he said: It is too late. So that e-mail is floating around in cyberspace because the White House knows, if they open it, it becomes public domain. So secrecy is what this administration lives by.

This is a blatant example of where they want to keep secret an illegal program. I don't think we should be complicit. I don't think we should enable them to avoid the constitutional scrutiny of our Federal courts. We can't sacrifice--we can't--the truth for convenient expediency. It is not American. We have a system of government that is built not only on our Constitution but on the notion of checks and balances. The Federal courts are doing their job by checking this administration's broad exercise of Executive power. That is why I will be supporting other amendments that will be coming up that deal with this matter.

Last week, Chief Judge Walker, of the Northern District of California, issued an opinion rejecting this administration's claim to have ``inherent authority'' to eavesdrop on Americans outside of statutory law. What does this Senate want to do? A lot of the leaders you hear speaking on this want to make it possible to give retroactively to this administration the inherent authority to eavesdrop on Americans outside the law. In the future, we are fixing it. Good, I am glad. I am happy. But you can't then say, but we are going to look back and change the law. It is not right.

Listen to what Judge Walker wrote:

Congress appears clearly to have intended to establish the exclusive means for foreign intelligence activities to be conducted. Whatever power the executive might otherwise have had in this regard, FISA limits the power of the executive branch to conduct such activities and it limits the executive branch's authority to assert the State secrets privilege in response to challenges to the legality of its foreign intelligence surveillance activities.

So we, Congress, limited the power of the executive. We said: You can't assert the state secrets privilege in response to challenges to the legality of its foreign intelligence activities. And here we are rolling over with bravado to say to this administration--and by the way, I would feel the same way whoever was the President, this administration or any administration--oh, you are the absolute ruler, the King. You can do whatever you want. You can roll over. You can do all of that.

We need to protect this country from terrorists. We must. I voted to go to war against bin Laden, and I will not rest until he is gone and we break the back of al-Qaida. Unfortunately, that has gone awry. I will be very willing to have our Government listen in on conversations of the bad actors out there, but I don't want good people being spied on. That was the whole reason FISA came into being in the first place. People seem to forget the original FISA was to protect the people from being spied on, ordinary people. Suddenly, it has been turned on its head. I believe the current process works. Our system of government works. The Federal courts are exercising their constitutional duty to review Executive power.

So why in this bill are we seeking to stop that process? Why are we attempting to tie the capable hands of the Federal courts and deny our citizens their day in court? Covering up the truth is not the way to gain or regain the trust of the American people. The truth is the basis of the American ideal.

I always marveled, as a little girl and as a young woman, growing up, watching as the truth came out about America. I remember my dad, who loved this country so much, saying to me: Honey, you just watch this country. We are not afraid to admit a mistake. We are not fearful of giving people rights. We will stand up and tell the truth, even when we make the biggest mistakes.

Covering up the truth is not the way to gain the trust of the American people. Since learning, in late 2005, that the President violated the trust of our people by spying on our citizens, Congress and the American people have struggled to find out what happened. Last week, we celebrated the day we adopted the Declaration of Independence, Independence Day, July 4. In that historic document is the following phrase:

To secure these rights, governments are instituted among men deriving their just powers from the consent of the governed.

"The consent of the governed,'' that means the law has to be behind you when you undertake to do something such as this administration did. They didn't care about the consent of the governed. They didn't care about the law that was in place. Truth is the centerpiece of justice. I don't see how we ever get to the truth if we grant this immunity. I don't. It is not, to me, about the punishment.

As I said, I will be happy to have substitution, to have the Government step in. That is not the issue. We need to get to the truth, and we all know how that happens in our country. The immunity provision in this bill sweeps the warrantless program under the carpet. It hides the truth. The people deserve better from us.

I will close with a quote by former Supreme Court Justice Sandra Day O'Connor:

It is during our most challenging and uncertain moments that our nation's commitment to due process is severely tested. It is in those times we must preserve our commitment at home to the principles for which we fight abroad.

I hope we will support the Dodd amendment to strike the immunity provision.

I thank the Chair.

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