Senator Dodd Introduces Legislation to Repeal Retroactive Immunity for Warrantless Wiretapping

September 30, 2009 -- As he announced earlier this week, Senator Chris Dodd (D-CT) introduced the Retroactive Immunity Repeal Act, legislation that eliminates retroactive immunity for telecommunications companies that allegedly participated in President Bush’s warrantless wiretapping program.

“This special protection should never have been granted to these corporations. More importantly, the protection of our citizens’ privacy and due process rights should never have been violated,” said Dodd, in a floor statement. “Put more simply, if these companies broke the law, they should be held to account for it. Whether President Bush exceeded his powers in obtaining wholesale access to the domestic communications of millions of ordinary Americans is a matter for the courts – and so is the issue of whether these companies violated the rights of those Americans by providing that access.”

Article continues below...

The full text of Dodd’s statement is below.

“Mr. President, I rise to introduce legislation that would eliminate retroactive immunity for telecommunications companies who allegedly participated in President Bush’s warrantless wiretapping program.

Last year, I led the fight against this unprecedented, unnecessary, and unacceptable circumvention of our nation’s judicial process.

Although I was unsuccessful, I remain committed to this effort to uphold the rule of law in America.

After the ill-considered decision by Congress to grant retroactive immunity, a court in California earlier this year dismissed lawsuits against the telecommunications companies. While the appeals process continues, the time has clearly come to reverse the mistake of the last Congress and repeal retroactive immunity.

This special protection should never have been granted to these corporations. More importantly, the protection of our citizens’ privacy and due process rights should never have been violated. And this body should never have allowed it to happen.

To be clear: By rectifying this grievous error, we would in no way be endangering our national security. In fact, we would be making our nation safer – and more just.

For decades, FISA has compelled telecommunications companies to cooperate with surveillance programs when they are warranted or otherwise properly authorized. In fact, the law passed after the groundbreaking work of the Church Committee, already provides for a clear and well-tested path for the dismissal of lawsuits like these.

These warrants, by the way, are not difficult to obtain – in some instances, they can even be obtained after the fact. In reality, only a handful of warrant applications have ever been denied. So a warrantless wiretapping program does nothing for our national security. It can be justified only by a President’s desire to evade the law. That desire, turned into misguided policy, undermines our Constitution and its promise of equal justice for all. We must not condone such actions.

We want these companies to cooperate when the President needs their help to protect the American people. But we also want these companies – and the President – to follow the law. If we allow retroactive immunity to stand, we are simply opening the door for other industries to circumvent the law at the request of the President with the tacit understanding that the administration, and the Congress, will provide cover for them later.

We have all heard Benjamin Franklin’s famous admonition: “They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.”

But, Mr. President, this issue is not about liberty or safety. It is about the rule of law. And they that can give up the rule of law to obtain the illusion of security deserve neither the absolution of the American people nor the support of the United States Senate.

Put more simply, Mr. President, if these companies broke the law, they should be held to account for it. Whether President Bush exceeded his powers in obtaining wholesale access to the domestic communications of millions of ordinary Americans is a matter for the courts – and so is the issue of whether these companies violated the rights of those Americans by providing that access.

Some have raised logistical concerns over how we could allow these lawsuits to proceed without damaging national security or exposing state secrets. But our federal court system has dealt for decades with the most delicate national security matters, building expertise in protecting classified information behind closed doors. And a Republican-appointed Federal District Court Judge has already ruled that state secrets would not be jeopardized by a fair trial. After all, the existence of this program is hardly secret.

If these companies have done nothing wrong, they have nothing to fear from our allowing American citizens their due process. If, however, they contributed to the Bush administration’s shameful effort to pull an end run around our Constitution, let them fear the punishment they have earned. There is no such thing as a wrong so great that we cannot allow it to be righted in court.

When I have spoken on this issue previously, I have quoted from the film “A Man For All Seasons,” the story of St. Thomas More.

More is asked whether he’d be willing to cut down every law in England to get his hands on the devil. His reply remains instructive today: “When the last law was down, and the Devil turned ‘round on you, where do 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 them?”

One of the worst days in my career as a Senator was when this body took a scythe to the forest of laws that make this country great by granting this retroactive immunity.

Mr. President, it’s not too late to rectify that mistake. It’s not too late to stand up for the rule of law. It’s not too late to do what is right … what is Constitutional … what is American.

I yield the floor.”

Source: Senator Chris Dodd