Today was a great day to be a Democrat. Especially after witnessing a year of spineless capitulation and relentless insults to our collective intelligence. Today Edward Kennedy lit up the Senate floor with brilliant oratory, and made a case that no one could deny about why retroactive immunity for the telecoms must be rejected.
The President has said that American lives will be sacrificed if Congress does not change FISA. But he has also said that he will veto any FISA bill that does not grant retro-active immunity. No immunity, no FISA bill. So if we take the President at his word, he's willing to let Americans die to protect the phone companies.
— Senator Edward Kennedy
December 17, 2007
Update: h/t to Juche for posting 5 links to YouTube in the comments.
much more below the fold (including new video).
This is a clip of the rousing ending:
I had planned to post the entire speech - but realized that it was just to long - here's how Kennedy begins:
Mr. President, I am troubled by the FISA bill that has come to the Senate floor. Since I introduced the original FISA legislation over 30 years ago, I’ve worked to amend the FISA law many times, and I believe that this bill is not faithful to the traditional balance that FISA has struck. This bill gives the Executive Branch vast new authorities to spy on Americans, without adequate guidance or oversight. Americans deserve better.
I voted "yes" on the motion to proceed to consideration of this bill, because I believe this legislation is too important to hold up any longer. The House has already passed a new FISA bill, and the Senate needs to do the same. But let me be clear, the Senate should reject the bill that we have before us. We need to pass the Judiciary Committee version instead.
Then he puts today's legislation in context:
The Foreign Intelligence Surveillance Act is one of our landmark statutes. For nearly three decades, it has regulated government surveillance in a way that protects both our national security and our civil liberties and prevents the government from abusing its powers. It is because FISA enhances both security and liberty that it has won such broad support over the years from presidents, members of Congress, and the public alike. It is important to remember that before this Administration, no Administration had ever resisted FISA, much less systematically violated it.
When the Administration finally came to Congress to amend FISA after its warrantless wiretapping program was exposed, it did so not in the spirit of partnership, but to bully us into obeying its wishes. The Protect America Act was negotiated in secret at the last minute. The Administration issued dire threats that failure to enact a bill before the August recess could lead to disaster. Few, if any, knew what the language would actually do. The result of this flawed process was flawed legislation, which virtually everyone now acknowledges must be substantially revised.
Sheldon Whitehouse spoke in favor of the Intelligence Committee's version, but Kennedy was far more persuasive in his criticism:
I commend the members of the Intelligence Committee for their diligent efforts to put together a new bill. They’ve taken their duties seriously, and they’ve made some notable improvements over the Protect America Act.
But their bill is deeply flawed, and I am strongly opposed to enacting it in its current form. This bill fails to protect Americans’ constitutional rights and fundamental freedoms. There are many problems with the bill:
It redefines "electronic surveillance," a key term in FISA, in a way that is unnecessary and may have unintended consequences.
Court review occurs only after-the-fact, with no consequences if the court rejects the government’s targeting or minimization procedures.
It’s not as clear as it should be that FISA and the criminal wiretap law are the sole legal means by which the government may conduct electronic surveillance.
Its sunset provision is December 31, 2013. For legislation as complicated, important, and controversial as this, Congress should reevaluate it much sooner.
The bill purports to eliminate the "reverse targeting" of Americans, but does not actually contain language to do so. For instance, it has nothing analogous to the House bill’s provision on reverse targeting, which prohibits use of the authorities if "a significant purpose" is targeting someone in the United States.
It does not fully close the loophole left open by the Protect America Act, allowing warrantless interception of purely domestic communications.
It does not require an independent review and report on the Administration’s warrantless eavesdropping program. Only through such a process will we ever learn what happened and achieve accountability and closure on this episode.
Add it all up, and the takeaway is clear: this bill is inconsistent with the way FISA was meant to work, and it’s inconsistent with the way FISA has always worked.
He then goes on to compare the two version and to clearly lay out why the Judiciary Committee version of the Bill is needed:
The Judiciary Committee’s FISA bill shows that there is a better way. The Judiciary Committee’s version is faithful to the traditional FISA balance. It shares the same basic structure, but it addresses all of the problems I listed above. The Judiciary bill was negotiated in public, which allowed outside groups and experts to give critical feedback. It was also negotiated later in time than the Intelligence Bill, meaning we had the benefit of reviewing their work.
Like the Intelligence Committee’s bill, the Judiciary Committee’s version also gives the Executive Branch greater authority to conduct electronic surveillance than it has ever had before. Make no mistake, it too is a major grant of power to the intelligence community. But unlike the Intelligence Committee’s bill, the Judiciary Committee’s version sets some reasonable limits that protect innocent Americans from being spied on by their government without any justification whatever.
No one should lose sight of how important Title I of FISA is. The rules governing electronic surveillance affect every American. They are the only thing that stands between the freedom of Americans to make a phone call, send an e-mail, and search the Internet, and the ability of the government to listen in on that call, read that e-mail, review that Google search. In our "Information Age," Title I of FISA provides Americans a fundamental bulwark against government tyranny and abuse. If we enact the Title I that is now before us, we will undermine that bulwark.
Unfortunately, the exact same thing would be true if we enact the Intelligence Committee’s Title II.
Mr. President, the nation was shocked to learn earlier this month that the CIA had destroyed videotapes showing employees using severe interrogation techniques. The willful destruction of these tapes by the CIA obviously raises serious questions involving obstruction of justice.
But this is not the only cover-up that the Administration has been involved in lately. President Bush has been demanding that Congress grant retroactive immunity to telecommunications companies that cooperated with the Administration’s illegal surveillance program. He wants us to pretend that this whole episode never happened.
I oppose granting any form of retroactive immunity to these companies, and I urge my colleagues to support the amendment to strike Title II from the FISA bill. Amnesty for telecommunication companies may help the Administration conceal its illegal spying, but it will not serve our national security, and it will further undermine the rule of law.
Let’s not forget why we are even talking about this issue. At some point in 2001, the Bush Administration began a massive program of warrantless spying. New reports suggest that the Administration began its warrantless spying even before 9/11. The Administration never told Congress what it was doing. In clear violation of the FISA law and in complete disdain for the 4th Amendment, it also never told the FISA court what it was doing.
Because the Bush Administration secretly ignored the law, we still do not know how deeply this program invaded the privacy of millions of innocent Americans. The push for immunity by this Administration is a push to avoid all accountability for a wiretapping program that was a massive violation of the law.
More history:
FISA has been in force for 29 years. It was designed from the beginning to allow flexibility in pursuing our enemies. It was enacted with strong bipartisan support in 1978, and it’s been amended on a bipartisan basis some 30 times since then. It’s enhanced Americans’ security and safeguarded our liberty. Every previous Administration has complied with FISA. But the Bush Administration apparently decided that FISA was an inconvenience. With the help of certain phone companies, it secretly spied on Americans for years, without any court orders or oversight.
There is still a great deal we don’t know about this secret spying, but what we do know is alarming. Numerous reports indicate that it covered not only international communications, but also Americans’ purely local calls with their friends, neighbors, and loved ones. A lawsuit in California has produced evidence that at the government’s request, AT&T installed a supercomputer in a San Francisco facility that copied every communication by its customers, and turned them over to the National Security Agency.
Think about that. The National Security Agency of the Bush Administration may have been intercepting the phone calls and e-mails of millions of ordinary Americans for years.
The surveillance was so flagrantly illegal that even lawyers in the Administration tried to fight it. Nearly 30 Justice Department employees threatened to resign over it. The head of the Office of Legal Counsel, Jack Goldsmith, testified that it was "the biggest legal mess I had ever encountered."
Mr. Goldsmith himself acknowledged that "top officials in the administration dealt with FISA the way they dealt with other laws they didn’t like: they blew through them in secret based on flimsy legal opinions that they guarded closely so no one could question the legal basis of the operations."
Think about that as well. The President’s own head of the Office of Legal Counsel states that the Administration’s policy has been to "blow through" laws it doesn’t like, in secret, so that its actions cannot be challenged. The Bush White House has repeatedly failed to understand that our government is a government of laws, and not of men.
I'm going to leave it there. I watched the entire speeh live on C-SPAN. It was spellbinding. I was thinking of reposting it in it's entirety - but it's way too long for that. I encourage everyone to read it here
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peace