Senator Chris Dodd gets it...

Mr. President, it is very simple. Strike that section of the bill that grants immunity to a number of telecommunications companies that, for a period of roughly 5 or 6 years, literally vacuumed up phone conversations, faxes, e-mails, photographs, on a wholesale basis, of virtually every American citizen. The only reason it has come to a halt is because there was a whistleblower who identified the program. Otherwise the program would be ongoing. Again, none of us argue, at least I don't argue at all, about the importance of having the ability to get the cooperation of an industry that could help us identify those who would do us harm. That is not the debate.

The debate is whether there is an appropriate means by which those warrants are sought before these telecom companies would begin to turn over the private conversations, e-mails, and communications of American citizens. That is what this debate is about. It is a simple debate on whether we keep this section of the bill or strike it out and allow the judicial branch, a coequal branch of Government, to determine whether the acts by the executive branch were constitutional and if they were they legal.

If this amendment is not adopted, it will be a vote by the legislative body that determines whether they were legal. We are not competent or the appropriate constitutionally delegated body to perform that function. That is why we have three coequal branches of Government. The executive branch made this decision. We in the legislative branch have an obligation to insist that the judicial branch determine the legality of the actions taken.

I wish to thank as well my colleague, Senator Feingold of Wisconsin, my lead cosponsor, but also to mention, if I may, Senator Leahy, who has been a stalwart on this effort and always a great crusader against those who would do harm to the rule of law. I also want to thank Senator Reid, the Majority Leader, and Senators Harkin, Boxer, Sanders, Wyden, Kennedy, Durbin, Kerry, and Clinton for their support for this amendment. I also thank, if I may, Jay Rockefeller, who chairs this committee. While I am highly critical of title II of the bill, I have great respect for him and the work he has tried to do in leading the Intelligence Committee on this difficult issue. While I still have major reservations about title I of this bill, the fact that title II still exists in this bill makes it impossible to be supportive of this legislation, if that is retained in the bill that we vote on tomorrow.

For many Americans, the issue may seem a very difficult one to follow. It may seem like another squabble over a corporate lawsuit. But in reality, it is so much more than that. This is about choosing between the rule of law and the rule of men. You heard our colleague, Senator Levin, and the Majority Leader eloquently describe the situation as it presently exists.

For more than 7 years, President Bush has demonstrated time and time again, unfortunately, that he neither respects the role of Congress nor does he apparently respect the rule of law on these matters. Today, we are considering legislation which will grant retroactive immunity to the telecommunications companies that are alleged to have handed over to this administration the personal information of virtually every American, every phone call, every e-mail, every fax, and every text message, and all without warrant.

Some may argue that, in fact, the companies received documentation from the administration stating that the President authorized the wiretapping program and that, therefore, it is automatically legal. These advocates will argue that the mere existence of documentation justifies retroactive immunity; that because a document was received, companies should be retroactively exonerated from any wrongdoing. But as the Intelligence Committee has already made clear, we already know that the companies received some form of documentation with some sort of legal determination.

But that logic is deeply flawed. Because the question is not whether the companies received a document from the White House. The question is, were those actions legal?

It is a rather straightforward and surprisingly uncomplicated question. Did the companies break the law? Why did the administration not go to the FISA Court as they were required to do under the Foreign Intelligence Surveillance Act?

Since 1978, that court has handled 18,748 warrants, and they have rejected 5 since 1978, in almost 30 years, according to a recent published report in the Washington Post. So the issue raised for me is, why didn't these companies go before that court to determine whether a warrant was justified? Why did they decide merely to rely on some letter or some documentation, none of which has ever been established as a legal justification for their actions?

Either the companies complied with the law as it was at the time or they didn't. Either the companies and the President acted outside the rule of law or they followed it. Either the underlying program was legal or it was not. If we pass retroactive immunity, not a single one of these questions will ever be answered--ever. Because of this so-called compromise, Federal judges' hands will be tied and the outcome of these cases will be predetermined. Retroactive immunity will be granted.

So this is about finding out what exactly happened between these companies and the administration. It is about holding this administration to account for violating the rule of law and our Constitution. It is about reminding this administration that where law ends, tyranny begins. Those aren't my words, where the law ends, tyranny begins. Those words were spoken by the former British Prime Minister, Margaret Thatcher.

It is time we say no more, no more trampling on our Constitution, no more excusing those who violate the rule of law. These are our principles. They

have been around since the Magna Carta, even predating the Constitution. They are enduring. What they are not is temporary. And what we should not do at a time when our country is at risk is abandon them. That is what is at stake this evening and tomorrow when the vote occurs.

Allowing retroactive immunity to go forward is, by its very nature, an abandonment of those principles. Similar to generations of American leaders before us, we too are confronted with a choice. Does America stand for all that is right with our world or do we retreat in fear? Do we stand for justice that secures America or do we act out of vengeance that weakens us?

Whatever our political party, Republican or Democratic, we are all elected to ensure that this Nation adheres to the rule of law. That is our most fundamental obligation as Members of this great body, to uphold the rule of law--not as partisans but as patriots serving our Nation. The rule of law is not the province of any one political party or any particular Member of the Senate but is, rather, the province of every American who has been safer because of it.

President Bush is right about one thing. The debate is about security. But not in the way he imagines. He believes we have to give up certain rights in order to be safer. This false dichotomy, this false choice that to be more secure, you must give up rights is a fundamentally flawed idea. In fact, the opposite is true. To be more secure, you must defend your rights.

I believe the choice between moral authority and security is a false choice. I believe it is precisely when you stand up and protect your rights that you become stronger, not weaker. The damage done to our country on 9/11 was both tragic and stunning, but when you start diminishing the rights of your people, you compound that tragedy. You cannot protect America in the long run if you fail to protect the Constitution of the United States. It is that simple.

As Dwight Eisenhower, who served our country as both President and as the leader of our Allied forces in Europe during World War II, said:

The clearest way to show what the rule of law means to us in everyday life is to recall what has happened when there is no rule of law.

That is why I believe history will judge this administration harshly for their disregard for our most cherished principles. If we do not change course and stand for our Constitution at this hour, for what is best for our country, for what we know is just and right, then history, I am confident, will most certainly decide that it was those of us in this body who bear equal responsibility for the President's decisions--for it was we who looked the other way, time and time again.

This is the moment. At long last, let us rise to it. Support the amendment I am offering on behalf of myself and the other Members I mentioned earlier. We must put a stop to this idea of retroactive immunity. It is time we stood for the rule of law. That is what is at stake. The FISA Courts were created specifically to strike the balance between a secure nation and a nation defending its rights. That is why the law has done so well for these past 30 years, amended many times, to keep pace with the changes of those who would do us great harm.

At this very hour, in the wake of 9/11, to say we no longer care about that, that we will decide by a simple majority vote to grant retroactive immunity to companies who decided that a letter alone was enough legal authority for them to do what they did is wrong.

I have pointed out before in lengthy debate, not every phone company participated in the President's warrantless wiretapping program. Not everyone did. There were those who stood up to the administration and said, without a warrant, without proper legal authority, we will not engage in the vacuuming up of the private information of American citizens. They should be recognized and celebrated for standing for the rule of law.

For those who decided they were going to go the other way, let the courts decide whether that letter, that so-called documentation, was the legal authority that allowed them to do what they did for more than 5 long years.

Tomorrow we will vote around 11 o'clock on this amendment. I commend Senator Bingaman and Senator Specter. They have offered amendments as well dealing with other parts of this legislation for which I commend them. But I hope my colleagues, both Democrats and Republicans, would think long and hard about this moment. Senator Carl Levin of Michigan said something very important toward the conclusion of his remarks: That this in itself becomes a precedent, that some future administration, fearing they would not get permission from a FISA Court to engage in an activity that violated the privacy of our fellow citizens will no doubt use the vote tomorrow, if, in fact, those who are for retroactive immunity prevail. They will cite that act by this body as a legal justification for some future administration circumventing the FISA Courts in order to do exactly what was done in this case.

It becomes a legal precedent.

So there is a great deal at risk and at stake with this vote tomorrow. It is about the rule of law. It is not about whether you care about the security of our Nation. Every one of us cares deeply about that, and we want to do everything we can to thwart those who would do us great harm. This is about the simple issue of whether a court of law ought to determine whether these companies violated the Constitution. Did they or didn't they? If they did not, so be it. If they did, then those to whom they did harm ought to be compensated at what marginal or minimal level one would decide. But let the court decide this. Let's not decide it by a simple vote here and set the precedent that I think we would regret for years and years to come.

With that, Mr. President, I yield the floor.

I suggest the absence of a quorum.