Today's Article
Senator Sheldon
Whitehouse (D-RI)
points out that
ongoing legal cases
may only be
determined by the
Judicial Branch.
Whitehouse (D-RI)
points out that
ongoing legal cases
may only be
determined by the
Judicial Branch.
The American Spark
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Rhode Island Senator Nails Bush, Congress On Telecom Spying
Immunity
By Cliff Montgomery - July 26th, 2008
During recent legislative argument on the Foreign Intelligence Surveillance Amendments Act of 2008,
Senator Sheldon Whitehouse (D-RI) gave an passionate speech against providing retroactive legal immunity
to telecommunications companies which have provided the Bush Administration with private data on U.S.
citizens and residents, without being served a proper warrant.
Several individuals have sued the telecom companies, declaring that such assistance of warrantless
surveillance was a violation of their basic constitutional rights.
While it's stunningly clear this indeed is a violation of the Fourth Amendment's rejection of "unreasonable
search and seizure," Sen. Whitehouse states a different, but equally valid position: He points out that such
ongoing legal cases may only rightly be determined by the Judicial Branch of government.
We quote portions of Sen. Whitehouse's July 8th speech below:
"Once more we find ourselves debating President Bush's warrantless wiretapping program, a self-inflicted
wound that this administration has visited upon our Government.
"The way this Senator sees it at least, the Bush Administration broke faith with the American people with its
warrantless surveillance program, and now we in Congress are meant to clean up the administration's mess.
"Unfortunately, we are doing so with a legislative fix that in one critical area--immunity for the phone
companies--misapplies the substantial evidence standard, trespasses constitutional boundaries, and breaks
dangerous new ground in American law.
"We would not be in this position if the Bush Administration had sought and received a court order in the first
place, as it easily could have. There would be no debate over granting immunity since a company following a
court order is protected. Or the Bush Administration could have used FISA procedures to seek and receive
lawful assistance from telecommunications companies.
"But the administration chose to go outside the law. I suspect the administration wanted to prove a point about
the President's article II authority, so it deliberately avoided these well-established
mechanisms.
"If so, the Bush Administration deliberately walked these telecommunications companies into this problem and
this litigation to vindicate ideological ambitions. But the problem is now before us.
"I have worked diligently and across the aisle to try to develop thoughtful solutions to the problem. In February,
with the distinguished Senator from Pennsylvania, Senator Arlen Specter, the learned ranking member of the
Judiciary Committee, I offered a bipartisan amendment that would have substituted the U.S. Government for
the telecommunications companies if it was determined they acted in good faith and with the reasonable belief
that compliance was lawful."
"We seem to have agreement amongst Members in this body that good faith is the proper standard. So we
should let a court, which has available to it the procedural mechanisms necessary to get to the bottom of this
in a confidential manner, make the determination, the
fundamental determination: Did these companies, if they received Government requests, act in good faith?
"We may in this body assume it to be true, but it is not our role as Members of Congress to decide on the good
faith of an individual litigant in a matter that is before a court.
"Many Senators have not even been read into the classified materials that would allow us to reach an informed
conclusion about good faith.
"We as a body are incapable of making an informed conclusion because as a body, we have not had access to
the necessary materials. So we should provide a fair mechanism for a finding of good faith by a proper judicial
body with the proper provisions for confidentiality.
"This simple determination can be made with limited proceedings based largely on the record of any
documents provided to the companies. We ask so little--a proper hearing, applying a proper standard.
"Unfortunately, the Bush Administration opposed this option, and I have not had the chance to offer this
amendment. For all its talk, the Bush Administration was evidently and tellingly not confident that a good-faith
threshold could be met."
"If you wish to see a case of legislative interference with private judgment of the courts, look no further than
what we are doing today.
Plaintiffs in the telecom litigation have brought causes of action alleging that their core constitutional rights
were violated. By providing immunity, Congress is telling the judicial branch: You cannot hear an entire category
of constitutional claims. Congress is intruding
upon a core function of the judicial power--the resolution of constitutional disputes."
"Today's effort is a naked intrusion into ongoing litigation. Where will that stop? Will Congress be able to rove
at will through litigation anywhere in the judicial branch, picking winners and losers as we like?"
"If I were a litigant, I would challenge the constitutionality of the immunity provisions of this statute, and I would
expect a good chance of winning."
Like what you're reading so far? Then why not order a full year (52 issues) of the The American Spark
e-newsletter for only $15? A major article covering an story not being told in the Corporate Press will be
delivered to your email every Monday morning for a full year, for less than 30 cents an issue. Order Now!
Immunity
By Cliff Montgomery - July 26th, 2008
During recent legislative argument on the Foreign Intelligence Surveillance Amendments Act of 2008,
Senator Sheldon Whitehouse (D-RI) gave an passionate speech against providing retroactive legal immunity
to telecommunications companies which have provided the Bush Administration with private data on U.S.
citizens and residents, without being served a proper warrant.
Several individuals have sued the telecom companies, declaring that such assistance of warrantless
surveillance was a violation of their basic constitutional rights.
While it's stunningly clear this indeed is a violation of the Fourth Amendment's rejection of "unreasonable
search and seizure," Sen. Whitehouse states a different, but equally valid position: He points out that such
ongoing legal cases may only rightly be determined by the Judicial Branch of government.
We quote portions of Sen. Whitehouse's July 8th speech below:
"Once more we find ourselves debating President Bush's warrantless wiretapping program, a self-inflicted
wound that this administration has visited upon our Government.
"The way this Senator sees it at least, the Bush Administration broke faith with the American people with its
warrantless surveillance program, and now we in Congress are meant to clean up the administration's mess.
"Unfortunately, we are doing so with a legislative fix that in one critical area--immunity for the phone
companies--misapplies the substantial evidence standard, trespasses constitutional boundaries, and breaks
dangerous new ground in American law.
"We would not be in this position if the Bush Administration had sought and received a court order in the first
place, as it easily could have. There would be no debate over granting immunity since a company following a
court order is protected. Or the Bush Administration could have used FISA procedures to seek and receive
lawful assistance from telecommunications companies.
"But the administration chose to go outside the law. I suspect the administration wanted to prove a point about
the President's article II authority, so it deliberately avoided these well-established
mechanisms.
"If so, the Bush Administration deliberately walked these telecommunications companies into this problem and
this litigation to vindicate ideological ambitions. But the problem is now before us.
"I have worked diligently and across the aisle to try to develop thoughtful solutions to the problem. In February,
with the distinguished Senator from Pennsylvania, Senator Arlen Specter, the learned ranking member of the
Judiciary Committee, I offered a bipartisan amendment that would have substituted the U.S. Government for
the telecommunications companies if it was determined they acted in good faith and with the reasonable belief
that compliance was lawful."
"We seem to have agreement amongst Members in this body that good faith is the proper standard. So we
should let a court, which has available to it the procedural mechanisms necessary to get to the bottom of this
in a confidential manner, make the determination, the
fundamental determination: Did these companies, if they received Government requests, act in good faith?
"We may in this body assume it to be true, but it is not our role as Members of Congress to decide on the good
faith of an individual litigant in a matter that is before a court.
"Many Senators have not even been read into the classified materials that would allow us to reach an informed
conclusion about good faith.
"We as a body are incapable of making an informed conclusion because as a body, we have not had access to
the necessary materials. So we should provide a fair mechanism for a finding of good faith by a proper judicial
body with the proper provisions for confidentiality.
"This simple determination can be made with limited proceedings based largely on the record of any
documents provided to the companies. We ask so little--a proper hearing, applying a proper standard.
"Unfortunately, the Bush Administration opposed this option, and I have not had the chance to offer this
amendment. For all its talk, the Bush Administration was evidently and tellingly not confident that a good-faith
threshold could be met."
"If you wish to see a case of legislative interference with private judgment of the courts, look no further than
what we are doing today.
Plaintiffs in the telecom litigation have brought causes of action alleging that their core constitutional rights
were violated. By providing immunity, Congress is telling the judicial branch: You cannot hear an entire category
of constitutional claims. Congress is intruding
upon a core function of the judicial power--the resolution of constitutional disputes."
"Today's effort is a naked intrusion into ongoing litigation. Where will that stop? Will Congress be able to rove
at will through litigation anywhere in the judicial branch, picking winners and losers as we like?"
"If I were a litigant, I would challenge the constitutionality of the immunity provisions of this statute, and I would
expect a good chance of winning."
Like what you're reading so far? Then why not order a full year (52 issues) of the The American Spark
e-newsletter for only $15? A major article covering an story not being told in the Corporate Press will be
delivered to your email every Monday morning for a full year, for less than 30 cents an issue. Order Now!