1 Boring Old Man

For starters, current law already provides immunity from lawsuits for companies that cooperate with the government’s request for assistance, as long as they receive either a court order or a certification from the Attorney General that no court order is needed and the request meets all statutory requirements. But if requests are not properly documented, FISA instructs the telephone companies to refuse the government’s request, and subjects them to liability if they instead decide to cooperate. This framework, which has been in place for 30 years, protects companies that act at the request of the government while also protecting the privacy of Americans’ communications.

Some supporters of retroactively expanding this already existing immunity provision argue that the telephone companies should not be penalized if they relied on a high-level government assurance that the requested assistance was lawful. Mr. President, as superficially appealing as that argument may sound, it utterly ignores the history of FISA.

Telephone companies have a long history of receiving requests for assistance from the government. That’s because telephone companies have access to a wealth of private information about Americans – information that can be a very useful tool for law enforcement. But that very same access to private communications means that telephone companies are in a unique position of responsibility and public trust. And yet, before FISA, there were basically no rules to help the phone companies resolve the tension between the government’s requests for assistance in foreign intelligence investigations and the companies’ responsibilities to their customers.

This legal vacuum resulted in serious governmental abuse and overreaching. The abuses that took place are well documented and quite shocking. With the willing cooperation of the telephone companies, the FBI conducted surveillance of peaceful anti-war protesters, journalists, steel company executives – and even Martin Luther King Jr…

Senator Russ Feingold
^{U.S. Senate [June 25, 2008]}

My daughters, Grace and Christina, are six and three. They are growing up in a time of two great conflicts: one between our nation and its enemies, and another, between what is best and worst in our American soul. And someday soon, I know I am going to hear that question: “What did you do?” I want, more than anything else, to give the right answer.

That question is coming for every single one of us in this body. Every single one of us will be judged by a jury from whom there’s no hiding: our sons, our daughters, our grandchildren. Someday soon, they’ll read in their textbooks the story of a great nation, one that threw down tyrants and oppressors for two centuries; one that rid the world of Nazism and Soviet communism; one that proved that great strength can serve great virtue, that right can truly make might.

And then they will read how, in the early years of the 21st century, that nation lost its way.

We do not have the power to strike that chapter. No, Mr. President—we can’t go back.

We can’t un-destroy the CIA’s interrogation tapes. We can’t un-pass the Military Commissions Act. We can’t un-speak Alberto Gonzales’s disgraceful testimony. We can’t un-torture innocent people. And perhaps, sadly, shamefully, we cannot stop retroactive immunity. We can’t un-do anything that has been done in the last six years for the cause of lawlessness and fear.

We cannot blot out that chapter. But we can begin the next one, even today. Let its first words read: “Finally, in June 2008, the Senate said: ‘Enough.’”

Senator Chris Dodd
^{U.S. Senate [June 24, 2008]}

"Under this compromise legislation, an important tool in the fight against terrorism will continue, but the President’s illegal program of warrantless surveillance will be over. It restores FISA and existing criminal wiretap statutes as the exclusive means to conduct surveillance — making it clear that the President cannot circumvent the law and disregard the civil liberties of the American people. It also firmly re-establishes basic judicial oversight over all domestic surveillance in the future. It does, however, grant retroactive immunity, and I will work in the Senate to remove this provision so that we can seek full accountability for past offenses. But this compromise guarantees a thorough review by the Inspectors General of our national security agencies to determine what took place in the past, and ensures that there will be accountability going forward. By demanding oversight and accountability, a grassroots movement of Americans has helped yield a bill that is far better than the Protect America Act."

"It is not all that I would want. But given the legitimate threats we face, providing effective intelligence collection tools with appropriate safeguards is too important to delay. So I support the compromise, but do so with a firm pledge that as President, I will carefully monitor the program, review the report by the Inspectors General, and work with the Congress to take any additional steps I deem necessary to protect the lives — and the liberty — of the American people."