Sen. Chris Dodd’s First Speech On FISA Today
Sen. Chris Dodd gave a barnburner of a speech this morning, laying out the reasons that the rule of law ought to trump the CYA demands of the Bush Administration and complicit telecoms who trailed along in their unlawful wake — before and after 9/11, for years. I’m reprinting the speech in its entirety — as it was prepared for delivery — because I felt that folks who weren’t able to follow along would appreciate the read.
In the face of a challenge to the rule of law and the foundations of government, true patriots stand up. Thank you to Sen. Dodd for doing so today.
I rise to urge my colleagues to vote against cloture on S. 2248, the FISA Amendments Act of 2007.
Opposing cloture is essential, because there is no unanimous consent agreement in place providing for the immediate adoption of the Judiciary Committee substitute amendment.
As you know, Mr. President, the Judiciary substitute amendment, among other things, strikes Title II of the Intelligence Committee bill—the title which seeks to provide retroactive immunity to telecommunications companies who are alleged to have violated their customers’ privacy rights by turning over information to the government without warrants.
I am fully aware that the Majority Leader has various parliamentary options at his disposal to move this legislation forward. It is his right to attempt to invoke cloture.
But I regret that decision, and I hope that my colleagues will join me in stopping this legislation.
Mr. President, why do I feel so strongly about this matter?
For the last six years, our largest telecommunications companies have been spying on their own American customers.
Secretly and without a warrant, they delivered to the federal government the private, domestic communications records of millions of Americans—records this administration has compiled into a database of enormous scale and scope.
That decision betrayed millions of customers’ trust. It was unwarranted—literally.
But was it illegal?
That, Mr. President, I don’t know. And if this bill passes in its current form, we will never know. The president’s favored corporations will be immune.
Their arguments will never be heard in a court of law. The details of their actions will stay hidden. The truth behind this unprecedented domestic spying will never see light. And the book on our government’s actions will be closed, and sealed, and locked, and handed over to the safe-keeping of those few whom George Bush trusts to keep a secret.
The bill that the Majority Leaders will seek to make the pending business of the Senate later today—the FISA Amendments Act of 2007—has a long and twisted history behind it. Its origins lie in President Bush’s years of warrantless spying on Americans.
That abuse of power was exposed by the press in late 2005. The New York Times revealed that under a presidential order signed in 2002, the [National Security Agency] has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years.
In fact, we later learned that the president’s warrantless spying was authorized as early as 2001.
Disgraced former Attorney General Alberto Gonzales, in a 2006 white paper, attempted to justify that spying; his argument rested on the specious claim that, in authorizing the president to go to war in Afghanistan, Congress had also somehow authorized him to listen in on phone calls in America.
But many of those who voted on the original authorization of force found this claim to new executive powers to be a laughable invention. Here’s what former Majority Leader Tom Daschle wrote:
As Senate majority leader…I helped negotiate that law with the White House counsel’s office over two harried days. I can state categorically that the subject of warrantless wiretaps of American citizens never came up….I am also confident that the 98 senators who voted in favor of authorization of force against al Qaeda did not believe that they were also voting for warrantless domestic surveillance.
Such claims to expanded executive power based on the authorization for military force have since been struck down by the courts.
In recent months, the administration has changed its argument, now grounding its warrantless surveillance power in the extremely nebulous "authority of the president to defend the country" that they find in the Constitution.
Of course, that begs the question: Exactly what doesn’t fit under "defending the country"? If we take the president at his word, we would concede to him nearly unlimited power, as long as he finds a lawyer willing to stuff his actions into that boundless category.
Rather than concede such power, Congress has worked to bring the president’s surveillance program back where it belongs—under the rule of law.
At the same time, we’ve worked to modernize FISA and ease restrictions on terrorist surveillance. The Protect America Act, a bill attempting to respond to that two-pronged challenged, passed in August; but it is set to expire in February.
The bill now before us would create a legal regime for surveillance under reworked and more reasonable rules. But crucially, President Bush has demanded that this bill include full retroactive immunity for corporations complicit in domestic spying. In a speech on September 19, he stated that "it’s particularly important for Congress to provide meaningful liability protection to those companies."
In October, he stiffened his demand, vowing to veto any bill that did not shield the telecom corporations. And last week, he resorted to shameful, misleading scare tactics, accusing Congress of failing "to keep the American people safe."
That month, the FISA Amendments Act came before the Senate Select Committee on Intelligence. Per the president’s demand, it included full retroactive immunity for the telecom corporations. Senator Nelson introduced an amendment to strip that immunity, and instead allow the matter to be settled in the courts. It failed by a vote of 3 to 12.
But as it passed out of the Intelligence Committee, by a vote of 13 to 2, the bill still put corporations literally above the law and ensured that the extent of the president’s invasions of privacy would remain a secret. I found retroactive immunity far beyond the pale, and I made my objections strongly and publicly.
But the bill also had to pass through the Judiciary Committee. There, Chairman Pat Leahy succeeded in reporting out a bill without the egregious immunity provision. Over the years, Pat Leahy has cemented his reputation as a champion of the rule of law; and I believe the stand he took last month will be honored for a long time to come.
However, I’m still concerned that when Senator Feingold proposed an amendment to strip immunity for good, it failed by a vote of 7 to 12.
So here we are—facing a final decision on whether the telecommunications companies will get off the hook for good. The president’s allies are as intent as they ever were on making that happen. They want immunity back in this bill at all costs.
But what they’re truly offering is secrecy in place of openness. Fiat in place of law.
And in place of the forthright argument and judicial deliberation that ought to be this country’s pride, two simple words from our president’s mouth: "Trust me."
I cannot speak for my colleagues—but I would never take that offer, not even in the best of times, not even from a perfect president. I would never take that offer because our Constitution tells us that the president’s word is subject to the oversight of the Congress and the deliberation of the courts; and because I took an oath to defend the Constitution; and because I stand by my oath.
"Trust me." It is the offer to hide ourselves in the waiting arms of the rule of men. And in these threatened times, that offer has never seemed more seductive. The rule of law has rarely been so fragile.
"It is a universal truth that the loss of liberty at home is to be charged to the provisions against danger…from abroad." James Madison, the father of our Constitution, made that prediction more than two centuries ago. With the passage of this bill, his words would be one step closer to coming true. So it has never been more essential that we lend our voices to the law, and speak on its behalf.
On its behalf, we say to President Bush that a nation of truly free men and women would never take "trust me" for an answer, not even from a perfect president—and certainly not from him.
In these times—under a president who seems every more day intent on acting as if he is the law, who grants himself the right to ignore legislation, who claims the power to spy without a warrant, to imprison without a hearing, to torture without a scruple—in these times, I would be a fool to take his offer.
But "trust me," says President Bush. He means it literally. When he first asked Congress to make the telecoms’ actions legally disappear, Congress had a reasonable question for him: Can we at least know exactly what we’d be immunizing? Can you at least tell us what we’d be cleaning up?
And the president refused to answer. Only he, his close advisors, and a handful of telecom executives know all of the facts. Congress is only asked to give token oversight.
But if we are to do our Constitutionally-mandated job, we need more than token oversight; we need full hearings on the terrorist surveillance program before the Intelligence and Judiciary Committees.
Without that, we remain in the dark—and in the dark we’re expected to grant the president’s wish, because he knows best.
Does that sound familiar to any of my colleagues?
In 2002, we took the president’s word and voted to go to war on faulty intelligence. What if we took his word again—and found, next year or the year after, that we had blindly legalized grave crimes?
If this disastrous war has taught us anything, it is that the Senate must never again stack such a momentous decision on such a weak foundation of fact. The decision we’re asked to make today is not, of course, as immense. But between fact and decision, the disproportion is just as huge.
So I rise in determined opposition to this unprecedented immunity and all that it represents. I have served in this body for more than a quarter-century. I have spoken from this desk hundreds and hundreds of times. I have rarely come to the floor with such anger.
But since I came to Washington, I have seen six presidents sit in the White House—and I have never seen a contempt for the rule of law equal to this. Today I have reached a breaking point. Today my disgust has found its limit.
I don’t expect every one of my colleagues to share that disgust, or that limit. I wish they did—but had that been the case, we would never have come to this point.
I only ask them to believe me when I say if I did not speak today, my conscience would not let me rest.
The right to conscience is one of the Senate’s most treasured allowances. It is perhaps this body’s defining feature. The president has his dominating bully pulpit. Justice Robert Jackson famously wrote that "in drama, magnitude and finality [the president’s] decisions so far overshadow any others that almost alone he fills the public eye and ear. No other personality in public life can begin to compete with him in access to the public mind."
But here in this chamber, a minority—even an impassioned minority of one—has the right to stand against all the combined weight and machinery of government and plead: "Stop!"
Or at least: "Wait." A minority can’t stand forever, as surely as I can’t speak forever. Ultimately, a minority has only one recourse—to make itself a majority. And I have faith that when the American people understand the full extent of this president’s contempt for the law, they will share my outrage. This is a trusting and patient nation—and with more than two centuries of democratic tradition, rightly so.
But that trust is not infinite; that patience is not endless; and after seven years of this president, they are worn down to the nub.
If I didn’t believe that, I wouldn’t be standing here today. If the rule of law weren’t my ruling passion, I wouldn’t be standing here today. But I do, and it is.
"Law" is a word we barely hear from the president and his allies. They offer neither a deliberation about America’s difficult choices in the age of terrorism, nor a shared attempt to set for our times the excruciating balance between security and liberty.
They merely promise a false debate on a false choice: security or liberty, but never, ever both.
It speaks volumes about the president’s estimation of the American people that he expects them to accept that choice. I think differently. I think that America’s founding truth is unambiguous: security and liberty, one and inseparable, and never one without the other.
Secure in that truth, I offer a challenge to the president’s allies: You want to put the president’s favored corporations above the law. Could you please explain how your immunity makes any one of us any safer by an iota?
If security were truly the issue, this debate wouldn’t be happening. An excellent balance between security and liberty has already been struck by FISA, a balance that has stood for three decades. In fact, FISA was written just to prevent a situation like ours from occurring: to protect Americans without countenancing executive lawbreaking.
In the wake of the Watergate scandal, the United States Senate convened the Church Committee, a panel of distinguished senators determined to shine light on executive abuses of power. The facts it uncovered were shocking:
Army spying on the civilian population; federal dossiers on citizens’ political activities; a CIA and FBI program that had opened hundreds of thousands of Americans’ letters without warning or warrant.
The collective force of these revelations was undeniable: In their oversight duties, Congress and the courts had failed; they had unquestioningly accepted the executive’s "trust me"; and as a result, Americans had sustained a severe blow to their Fourth Amendment rights "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures."
The Senate could have panicked; it could have ended or drastically curtailed those searches altogether. But in its wisdom, the Senate understood that protecting the American people was not the problem; the problem was simply the Nixonian attitude that "if the president does it, it’s not illegal."
The solution was to bring the executive’s efforts to protect America under the watchful eye of Congress and the courts—to restore checks and balances to surveillance, and to give it the legitimacy it demands and deserves. America would not be America if such power remained concentrated in the hands of one man, or one branch of government.
The Church Committee’s final report, "Intelligence Activities and the Rights of Americans," put the case eloquently:
The critical question before the Committee was to determine how the fundamental liberties of the people can be maintained in the course of the Government’s effort to protect their security. The delicate balance between these basic goals of our system of government is often difficult to strike, but it can, and must, be achieved.
We reject the view that the traditional American principles of justice and fair play have no place in our struggle against the enemies of freedom. Moreover, our investigation has established that the targets of intelligence activity have ranged far beyond persons who could properly be characterized as enemies of freedom….
We have seen segments of our Government, in their attitudes and action, adopt tactics unworthy of a democracy, and occasionally reminiscent of the tactics of totalitarian regimes.
We have seen a consistent pattern in which programs initiated with limited goals, such as preventing criminal violence or identifying foreign spies, were expanded to what witnesses characterized as "vacuum cleaners," sweeping in information about lawful activities of American citizens.
The senators concluded: "Unless new and tighter controls are established by legislation, domestic intelligence activities threaten to undermine our democratic society and fundamentally alter its nature."
What a strange echo we hear in those words! They could have been written yesterday. Three decades ago, our predecessors in this chamber understood that when domestic spying goes too far, it threatens to kill just what it promises to protect—an America secure in its liberty. That lesson was crystal-clear 30 years ago. Why is it so clouded now?
And before we entertain the argument that "everything has changed" since those words were written, remember: The men who wrote them had witnessed world war and Cold War, had seen Nazi and Soviet spying, and were living every day under the cloud of nuclear holocaust. How short some memories are!
The threats have multiplied and grown in complexity, but the lesson has been immutable: Warrantless spying threatens to undermine our democratic society, unless legislation brings it under control. In other words, the power to invade privacy must be used sparingly, guarded jealously, and shared equally between the branches of government.
Or the case can be made pragmatically. As my friend Harold Koh, the Dean of Yale Law School, recently argued, "The engagement of all three branches tends to yield not just more thoughtful law, but a more broadly supported public policy."
Three decades ago, that broadly supported public policy—a prime outcome of the Church Committee—was the Foreign Intelligence Surveillance Act, or FISA. FISA confirmed the president’s power to conduct surveillance of international conversations involving anyone in the United States, provided that the federal FISA court issued a warrant—ensuring that wiretapping was aimed at safeguarding our security, and nothing else. To further protect intelligence gathering, that court was to work in secret.
Ironically, none other than the president’s own Director of National Intelligence, Mike McConnell, explained the rationale in an interview this summer:
The United States "did not want to allow [the intelligence community] to conduct…electronic surveillance of Americans for foreign intelligence unless you had a warrant, so that was required."
As originally written in 1978, and as amended nine times since, FISA has accomplished its mission; it has been a valuable tool for conducting surveillance of terrorists and those who would harm America. And every time presidents have come to Congress openly to ask for more leeway under FISA, Congress has worked with them; Congress has compromised; and together, Congress and the president have struck a balance that safeguards America while doing its utmost to protect privacy.
This summer, Congress made a technical correction to FISA, enabling the president to wiretap, without a warrant, conversations between two foreign targets, even if those conversations are routed through American computers. Personally, I felt that this summer’s legislation went too far, and I opposed it. But the point is that Congress once again proved its willingness to work with the president on FISA.
Isn’t that enough?
Just this October and November, as we’ve seen, the Senate Intelligence and Judiciary Committees worked with the president to further refine FISA and ensure that, in a true emergency, the FISA court would do nothing to slow down intelligence gathering.
Isn’t that enough?
And as for the FISA court, it has approved the president’s wiretapping requests with impeccable consistency.
Between 1978 and 2004, according to the Washington Post, the FISA court approved 18,748 warrants—and rejected five. The FISA court has sided with the executive ninety nine point nine percent of the time.
Isn’t that enough?
Is anything lacking? Isn’t the framework already in place? Isn’t all of this enough to keep us safe?
We all know the president’s answer. Given this complex, fine-tuned machinery, crafted over three decades by all three branches—he ignored it.
Given a system primed to bless nearly any eavesdropping he could conceive—he conducted his own, illegally.
If the shock of that decision has yet to sink in, think of it this way: President Bush ignored not just a federal court, but a secret federal court; not just a secret federal court, but a secret federal court prepared to sign off on his actions ninety nine point nine percent of the time. A more compliant court has never been conceived.
And still that wasn’t good enough for our president.
So I will ask the Senate candidly, and candidly it already knows the answer: Is this about our security—or is it about his power?
I ask that question not to change the subject, but because it is the key to understanding why this administration is pushing so hard for telecom immunity—that is, for secrecy. Richard Nixon, the same man who declared that "if the president does it, it’s not illegal," raised secrecy to an art form—because he understood that the surest way to amass power is to conceal its true extent.
Secrecy can spring from the best motives; but as it grows it begins to exist only for itself, only for its own sake, only to cover its own abuses.
The senators of the Church Committee expressed succinctly the deep flaw in that form of government: "Abuse thrives on secrecy."
Today, we have seen the executive branch pass to a new master of secrecy. Vice President Cheney practices a secrecy so baroque that it could, in a less threatened time, be an object for laughter, instead of fear.
His unclassified papers? Stamped "treat as TSSCI," one of the highest levels of state secret.
The list of papers he has declassified? Classified.
The members of his energy task force? None of your business.
His location? Undisclosed.
The names of his staff? Confidential.
The visitor log for his office? Shredded by the Secret Service.
When secrecy becomes this divorced from practicality, we are left with only one conclusion: For this executive branch, secrecy is power.
Of course, I don’t mean any offense against our Vice President—as he reminds us, he’s not part of the executive branch.
Mr. President, we see a pattern of secrecy stretching back to the first months of this administration. Its push for immunity is no different—secrecy is at its center.
And tellingly, the administration’s original immunity proposal protected not just the telecoms, but everyone involved in the wiretapping program. In their original proposal, that is, they wanted to immunize themselves.
Think about that. It speaks to their fear and, perhaps, their guilt: their guilt that they had broken the law, and their fear that in the years to come, they would be found liable or convicted. They knew better than anyone else what they had done—they must have had good reason to be afraid!
Thankfully, executive immunity is not part of the bill before us.
But the origin of immunity tells us a great deal about what’s at stake here: This is, and always has been, a self-preservation bill.
Otherwise, why not have the trial and get it over with? If the president’s allies believe what they say, the corporations would win in a walk.
After all, look at things from their perspective: In their telling, when our biggest telecom corporations helped the president spy without a warrant, they were doing their patriotic duty. When they listened to the executive branch and turned over private information, they were doing their patriotic duty.
When one company gave the NSA a secret eavesdropping room at its own corporate headquarters—it was simply doing its patriotic duty. The president asked, the telecoms answered.
Well! Shouldn’t that be an easy case to prove, Mr. President? The corporations only need to show a judge the authority and the assurances they were given, and they’ll be in and out of court in five minutes. If the telecoms are as defensible as the president says, why doesn’t the president let them defend themselves? If the case is so easy to make, why doesn’t he let them make it? Why is he standing in the way?
Our federal court system has dealt for decades with the most delicate national security matters, building up expertise in protecting classified information behind closed doors—ex parte, in camera. We can expect no less in these cases. If we’re worried about national security being threatened as a result, we can simply get the principals a security clearance.
No intelligence sources need be compromised. No state secrets need be exposed. And we can say so with increasing confidence, because after the extensive the litigation that has already taken place at both the district court and circuit court level, no sensitive information has leaked out.
In fact, Federal District Court Judge Vaughn Walker, a Republican appointee, has already ruled that the issue can go to trial without putting state secrets in jeopardy. He reasonably pointed out that the existence of the president’s surveillance program is a hardly secret at all: "The government has [already] disclosed the general contours of the ‘terrorist surveillance program,’ which requires the assistance of a telecommunications provider."
George Bush wouldn’t be the first president to hide righteously behind the state secrets privilege. In fact, the privilege was tainted at its birth by a president of my own party, Harry Truman.
In 1952, he successfully invoked the new privilege to prevent public exposure of a report on a plane crash that killed three Air Force contractors.
When the report was finally declassified—some fifty years later, decades after anyone in the Truman administration was within its reach—it contained no state secrets at all. Only facts about repeated maintenance failures that would have seriously embarrassed some important people. And so the state secrets privilege began its career not to protect our nation—but to protect the powerful.
In his opinion, Judge Walker argued that, even when it is reasonably grounded, the state secrets privilege [still] has its limits. While the court recognizes and respects the executive’s constitutional duty to protect the nation from threats, the court also takes seriously its constitutional duty to adjudicate the disputes that come before it. To defer to a blanket assertion of secrecy here would be to abdicate that duty, particularly because the very subject matter of this litigation has been so publicly aired.
The compromise between liberty and security remains a difficult one. But dismissing this case at the outset would sacrifice liberty for no apparent enhancement of security.
And that ought to be the epitaph for this presidency: "sacrificing liberty for no apparent enhancement of security." Worse than selling our soul—giving it away for free!
The president is equally wrong to claim that failing to grant this retroactive immunity will make the telecoms less likely to cooperate with surveillance in the future.
The truth is that, since the 1970s, FISA has compelled telecommunications companies to cooperate with surveillance, when it’s warranted—and what’s more, it immunizes them. It’s done that for more than 25 years.
So cooperation in warranted wiretapping is not at stake today. Collusion in warrantless wiretapping is—and the warrant makes all the difference, because it is precisely the court’s blessing that brings presidential power under the rule of law.
In sum, we know that giving the telecoms their day in court—giving the American people their day in court—would not jeopardize an ounce of our security.
And it could only expose one secret: the extent of our president’s lawbreaking, and the extent of his corporations’ complicity. That, our president will go to the mat to defend. That, he will keep from the light of a courtroom at all costs. That, his supporters would amend the law to protect.
And that is the choice at stake today: Will George Bush’s secrets die with this presidency? Or will they be open to the generations to come, to our successors in this chamber, so that they can prepare themselves to defend against future outrages of power and usurpations of law from future presidents, of either party?
I am here because I will not see those secrets go quietly into the good night with Donald Rumsfeld and Alberto Gonzales and Dick Cheney and George Bush. I am here because the truth is not their private property—it belongs to every one of us, and it demands to be heard.
"State secrets," "patriotic duty"—those, as weak as they are, are the arguments the president’s allies use when they’re feeling high-minded! When their thoughts turn baser, they make their arguments in dollar signs.
Here’s how Mike McConnell put it:
"If you play out the suits at the value they’re claimed, it would bankrupt these companies. So…we have to provide liability protection to these private sector entities."
Mike McConnell is quickly becoming an accidental truth-teller! Notice how the president’s own Director of National Intelligence concedes that if the cases went to trial, the telecoms would lose. I don’t know if that’s true, Mr. President—but we can thank Adm. McConnell for telling us how he really feels.
Of course, it’s an exaggeration to claim that that these companies would surely go bankrupt, even if they did lose.
We are talking about some of the wealthiest, most successful companies in America. Let me quote an article from Dow Jones MarketWatch. The date is October 23, 2007. The headline reads: "AT&T’s third-quarter profit rises 41.5%."
Quote: "AT&T Inc. on Tuesday said third-quarter earnings rose 41.5%, boosted by the acquisition of BellSouth and the addition of 2 million net wireless customers….Net income totaled $3.06 billion…compared with $2.17 billion…a year ago." Note that AT&T has posted these record profits at a time of very public litigation.
A company with more than $3 billion in profits one quarter—only the most exorbitant and unlikely judgment could completely wipe it out. To assume that the telecoms would lose, and that their judges would then hand down such backbreaking penalties, is already to take several leaps.
The point, after all, has never been to financially cripple our telecommunications industry. The point is to bring checks and balances back to domestic spying. Setting that precedent would hardly require a crippling judgment.
It’s much more troubling, though, that the Director of National Intelligence even feels the need to pronounce on "liability protection for private sector entities." Since when were our spies in the business of economics? Since when did they put protecting AT&T or Verizon ahead of protecting the American people? Since when did the amount a defendant stands to lose have any bearing on whether a suit should go forward? I learned in law school that guilty was guilty—no matter how rich or how poor.
Lean on this logic, and you’ll sink to its venal core: Certain corporations are too rich to be sued. Forget what they owe; forget what’s just; forget judges setting the penalty.
If there’s even a chance of the judgment being high, throw the suit out—it endangers the Republic!
This administration has equated corporations’ bottom lines with our nation’s security. Follow that reasoning honestly to its end, and you come to the conclusion: The larger the corporation, the more lawless it can be. If we accept Mr. McConnell’s premises, we could conceive of a corporation so wealthy, so integral to our economy, that its riches place it outside the law altogether. And if the administration’s thinking even admits that possibility, we know instinctively how flawed it is.
The truth is exactly the opposite: The larger the corporation, the greater the potential for abuse, and the more carefully it must be watched. Not that success should make a company suspect; companies grow large, and essential to our economy, because they are excellent at what they do. I simply mean that size and wealth open the realm of possibilities for abuse far beyond the scope of the individual.
Consider this. According to the Electronic Frontier Foundation,
Clear, first-hand whistleblower documentary evidence [states]…that for year on end every e-mail, every text message, and every phone call carried over the massive fiber-optic links of sixteen separate companies routed through AT&T’s Internet hub in San Francisco—hundreds of millions of private, domestic communications—have been…copied in their entirety by AT&T and knowingly diverted wholesale by means of multiple "splitters" into a secret room controlled exclusively by the NSA.
If true, that constitutes one of the most massive violations of privacy in American history.
And it would be inconceivable without the size and resources of an AT&T behind it—the same size that makes Mike McConnell fear the corporations’ day in court.
If reasonable search and seizure means opening a drug dealer’s apartment, the telecoms’ alleged actions would be the equivalent of strip-searching everyone in the building, ransacking their bedrooms, and prying up all the floorboards. That’s the massive scale we’re talking about—and that massive scale is precisely why no corporation must be above the law.
On that scale, it is impossible to plead ignorance.
As Judge Walker ruled, "AT&T cannot seriously contend that a reasonable entity in its position could have believed that the alleged domestic dragnet was legal."
But the arguments of the president’s allies sink even lower. Listen to the words a House Republican leader spoke on Fox News. They are shameful: "I believe that they deserve immunity from lawsuits out there from typical trial lawyers trying to find a way to get into the pockets of American companies."
Cindy Cohn is one of those "trial lawyers." She is lead counsel at the Electronic Frontier Foundation, a small public-interest law firm bringing suit against the telecom corporations.
And when she heard that Fox News claim about typical greedy trial lawyers, she laughed.
If he still thinks that we’re rich plaintiffs’ attorneys after he’s visited our little tiny Mission Street offices, [she said,] then I have a bridge to sell him. Most of the EFF lawyers worked in those big fancy firms for big fancy salaries, and took big pay cuts to join us….
Young lawyers come to me and say, "I really want to work for EFF—you have such great lawyers."
I say: "Take your current paycheck, rip it in three pieces, take any third, and that’s about what you’ll get working for EFF." The lawyers who work for EFF…are making far less than they could on the open market in exchange for being able to work in things they believe in every day.
Consider the hundreds of lawyers retained by the corporations in question, and their multimillion-dollar legal budgets, and the attempt to portray them as pitiable Davids is ludicrous. Sprint’s lawyers recently settled an unrelated class-action lawsuit for $30 million. Three years ago, AT&T handled a settlement with shareholders for $100 million.
With those resources, I think they can give EFF’s nine non-profit lawyers in their little office on Mission Street a fair fight.
Mr. President, I don’t presume to know how that fight will end. I don’t presume to hand out innocence and guilt—that’s not my job. Judges and juries do that. And in their search for the truth, the only job of this body is to get out of the way.
I’m not invested in one verdict or another—only that a verdict is reached. I don’t care who the truth favors—only that it comes out at all.
State secrets; future cooperation; economic harms; reputational damage; legal burdens—as we’ve seen, not a single one of the president’s arguments for this immunity stands. Nothing tells us to halt the legal process, to bar the courthouse door. Everything tells us to open it.
Mr. President, perhaps when I leave this floor today, someone will ask me, "Why are you so agitated about some telephone records? There’s so much else to be worked up about!"
And I’ll only be able to respond: "Exactly."
We have seen this administration chip away at the rule of law at a dozen points. Its relentlessness may be its greatest strength—the assault becomes numbing, and our healthy outrage grows dull. It was an outrage when this president set up secret courts outside the law. It was an outrage when he ignored the courts and tapped our phones. It was an outrage when he sanctioned torture. But outrage upon outrage upon outrage—and we wind up in a stupor. We’ve allowed each abuse with nothing more than a promise to resist the next one—and the next one, and the next one.
I am here, in the end, because the line has to be drawn somewhere. Why not here? Why not today?
I do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.
I’ve sworn that oath eight times, Mr. President—three times in the House, and five times in the Senate. I’m here today to honor those words, as I understand them.
Every one of my colleagues has spoken those words, as well; and we all have one vital thing in common:
We are all trying, every day, to live up to them.
If they speak differently to some of my colleagues, I understand. I understand if we don’t see eye to eye.
I only ask this in return: Understand why I’m compelled to be here today—to carry on the fight for the rule of law, as I know it, and to honor my oath, as it speaks to me.
I yield the floor.