Rep. Nadler Speaks Against FISA “Compromise” Legislation

WASHINGTON, D.C. – Congressman Jerrold Nadler (NY-08), Chair of the Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties today spoke on the House floor in opposition to H.R. 6304, the FISA Amendments Act.  The bill was adopted on a vote of 293 to 129.

“This bill is a fig-leaf, granting blanket immunity to the telecom companies for possibly illegal acts without allowing the courts to consider the facts or the law,” said Rep. Nadler.  “It abandons the Constitution’s protections and insulates lawless behavior from legal scrutiny.  I hope that the courts will find that, because the Constitutional rights of Americans have been violated, Congress’ attempt to prevent court review is unconstitutional.”

Rep. Nadler’s full remarks for the record follow:

“Madam Speaker, Members of the House must decide today whether to uphold the rule of law and the supremacy of the Constitution or whether to protect and reward the lawless behavior of the Administration and of the telecommunications companies that participated in its clearly illegal program of spying on innocent Americans.

 “This bill limits the courts hearing lawsuits alleging illegal wiretapping to consider only whether the telecom companies received a “written request or directive . . . indicating that the activity was [ ] authorized by the President; and [ ] determined to be lawful” -- not whether the request was actually lawful or whether the telecom companies knew that it was unlawful.

“The bill is a fig-leaf, granting blanket immunity to the telecom companies for illegal acts without allowing the courts to consider the facts or the law.  It denies people whose rights were violated their fair day in court, and it denies the American people their right to have the actions of the Administration subjected to fair and independent scrutiny.

“Even the courts’ limited review will remain secret.  The lawsuits will be dismissed, but the basis for the dismissal – that the defendants were innocent of misconduct, or that they were guilty but Congress commands their immunity – must remain secret.
   
“And the constitutionality of the immunity granted by this bill is very questionable.  As Judge Walker put it in the AT&T case:
 
AT&T’s alleged actions here violate the constitutional rights clearly established in [the] Keith decision.  Moreover, because ‘the very action in question has previously been held unlawful,’ AT&T cannot seriously contend that a reasonable entity in its position could have believed that the alleged domestic dragnet was legal.

“I would hope that the courts will find that, because the Constitutional rights of Americans have been violated, Congress’ attempt to prevent court review is unconstitutional.

“The bill also reiterates that FISA and specified other statutes are the exclusive legal authority for electronic surveillance.  The Act has always said that.  This bill adds some new mechanisms to ensure that any future legislation may not be read to override this exclusivity by implication, but only by explicitly saying that that is its purpose.

“No one and no court should draw the false conclusion that we are thereby implying that the exclusivity provision was, or could have been, overridden either by the President’s claim of inherent authority under Article II of the Constitution, or by the Authorization for the Use of Military Force of 2001.  This bill does not say or imply that.  If there is any doubt of this point, the blanket immunity provisions of this bill reflect Congress’ understanding that this domestic spying was not legal.   If it were, there would not be any necessity for these provisions.

“This bill abandons the Constitution’s protections and insulates lawless behavior from legal scrutiny.  

“I urge a no vote.”