Mr. President: I rise to discuss my amendment to strike Title II of the FISA Amendments Act—the title which would provide telecom corporations retroactive immunity for their warrantless and possibly illegal spying on their customers.
Much more than a few companies and a few lawsuits are at stake, Mr. President. Equal justice is at stake—justice that does not place some corporations outside the rule of law.
Openness is at stake—an open debate on security and liberty, and an end to warrantless wiretapping of Americans.
Retroactive immunity stands against those principles. Under retroactive immunity, the law will forbid some of our fellow citizens from having their day in court.
On what basis are we asked to pass retroactive immunity? On trust. There are classified documents, we’re told, that prove the case beyond a shadow of a doubt. But we’re not allowed to see them! I’ve served in this body for 27 years, and I’m not allowed to see them! Neither are a majority of my colleagues.
There is only one way to settle the issues at stake today. Not on trust—but in our courts. We are not judges. Wherever we stand on this immunity, Mr. President, none of us here are judges.
Real judges and juries—whose courts ought to be our pride, not our embarrassment—deserve to do their jobs. We must allow them to do their jobs.
And that’s all I ask today. Mr. President, let’s have the courts decide. We aren’t here to assign guilt and innocence; we are here to hold open the courthouse door, to ensure a fair hearing to the American citizens seeking redress. And I, for one, will accept whatever verdict results.
This is not a Democratic or Republican issue: this is a rule of law issue. It is about striking the right balance between liberty and security. I absolutely reject the false dichotomy that we have to choose one or the other.
If a Democratic President was seeking to grant retroactive immunity, I would object just as stridently as I am today. This should not be a partisan issue. We should all be in favor of allowing the courts to perform their constitutional responsibility to determine whether or not these companies should be held accountable.
Mr. President, I believe when surveillance is fully under the rule of law, Americans will only be more secure. To claim otherwise is an insult to our intelligence, our common sense, and our proud tradition of law.
I don't know how many of my colleagues have ever seen the wonderful movie “A Man For All Seasons,” the story of St. Thomas More.
There is a wonderful scene in that movie in which More is asked whether he'd be willing to cut down every law in England to get his hands on the devil.
And More replies, absolutely not. “When the last law was down, and the Devil turned ‘round on you, where you hide, the laws all being flat? This country is planted thick with laws, from coast to coast—Man’s laws, not God’s! And if you cut them down…do you really think you could stand upright in the winds that would blow then?”
Those laws know no secrecy, they know no distinctions for power or wealth. They live, that is, in openness.
And when that openness has been defended, when the facts are in the light, where they belong, I welcome all of my colleagues’ ideas in the great and ongoing debate on security and liberty in this new century, a debate in the open, and open to us all.
It can begin if we adopt this amendment. I urge my colleagues to do so.