The Impeachment Hearing Room

Dodd: Does America Stand for the Rule of Law, or the Rule of Men?

(Video Available at Above Link)

Today I feel proud to be able to say I was Born in Connecticut, raised and educated there for the most part and consider myself an unreconstructed New Englander. I am proud of Chris Dodd!

As the Senate prepares for a final vote on the FISA Amendments Act today, Senator Chris Dodd (D-CT) took to the floor again to implore his colleagues to reject the bill, which would grant retroactive immunity to the telecommunication companies that participated in President Bush’s warrantless wiretapping program. Dodd has fought alongside his colleagues Senators Russ Feingold (D-WI) and Patrick Leahy (D-VT) to prevent any bill that provides retroactive immunity from passing the Senate. The Senate today considered Dodd’s amendment to strike the retroactive immunity provision from the FISA bill.

The full text of Senator Dodd’s prepared remarks is below:

Mr. President, this has been a long, tough fight – one that may reach its conclusion here in Congress over the next few hours.

Retroactive immunity for companies that may have broken the law may well soon become the law.

And as certain as it appears that the outcome of the coming votes will be, equally certain is that this matter will not end today, regardless of what we do here.

This will end up in the courts – and there, not only the wisdom of granting retroactive immunity to these companies will be questioned, but more importantly, the constitutionality.

I have spoken at length here about how this legislation subjugates the role of the courts. But even as this body moves forward with this bill, opponents of retroactive immunity can take solace in knowing that it will still ultimately be the judiciary that decides whether any of this would have passed muster with the Framers.

I can hardly see how it would have.

It was James Madison who said, “I believe there are more instances of the abridgement of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations.”

He spoke these words at the Virginia Convention to ratify our Constitution.

I can hardly see how men who did not simply utter such sentiments but sacrificed everything in the name of them could have envisioned America ceding her hard-fought liberty in a moment of fear or weakness.

Is this bill constitutional? That is not for me to decide. I am not a judge – nor am I a jury. None of us are. I am a United States Senator who treasures the document I have sworn to uphold – and keeps a copy in his back pocket to remind him how enduring it truly is.

What is for this body to decide is how we best safeguard our nation’s security.

Greater security for our citizens is what we all want out of this bill.

But if we have learned anything from this Administration, it is that there is a right way to protect our nation…and a wrong way.

We have learned that even when those of us in this body act with even the best of intentions that we can still do lasting damage – because we act not with foresight and prudence but with an impulsiveness and fearfulness.

Mr. President, no one doubts for a moment the gravity of the threats we have faced and will continue to.

No one suggests that we do not have an obligation to monitor terrorists’ communications with the utmost vigilance. I want to make sure that the government has every last tool to do so.

I have no interest whatsoever in denying our government what it needs to make our nation safe. I want our president to have the capabilities to stop terrorists before they act – before they inflict harm on our country, our communities and our families.

I think we can and must do that in a way that balances national security and civil liberties.

But for reasons I have described at length, this so-called “compromise” strikes no balance at all.

And let’s be clear – the courts have continuously shown an ability to handle cases with sensitive security issues. Chief Judge Vaughn Walker of the Northern District of California, who has overseen virtually all the cases challenging the NSA’s warrantless wiretapping program, recently demonstrated this again.

In a case against the government, Judge Walker recently ruled that “FISA preempts the state secrets privilege in connection with electronic surveillance for intelligence purposes…” This ruling suggests that in suits against the telecommunications companies, they will be able to defend themselves and not be hamstrung by the state secrets privilege. At the very least, this decision highlights how premature it would be for Congress to grant retroactive immunity at this time.

Now is not the time to not close the court house doors.

Mr. President, I can’t say it enough. My trust remains in the courts – in cases argued openly, in judges who preside over them, and in juries of American citizens who decide them. Our courts should be a source of pride, not embarrassment. They deserve the chance to do their jobs.

As complex, as diverse, as relentless as the assault on the rule of law has been, our answer to it is a simple one. Far more than any president’s lawlessness, the American way of justice remains deeply rooted in our character.

That, no president can disturb. That is why, even on this dark day, I remain full of hope and faith that we can unite security and justice – because we already have.

And so, Mr. President, I harbor no illusions about what is about to happen with this legislation – or its consequences.

But even as this long fight draws to a close, it is worth pausing for a moment to recognize those who have joined us in writing its many chapters. They have not been written by one hand alone.

Senator Feingold, who has fought this battle with me from the beginning. His leadership has been articulate, his commitment unwavering and unyielding.

The senior Senator from Vermont, Senator Leahy, who fought so valiantly to bring the Senate Judiciary version of this bill that he crafted to the floor. He has been a staunch opponent of retroactive immunity.

And also, the Majority Leader who has stood with us on this fight. I want to thank him, as well – I know it hasn’t been easy.

But even as he has sought to balance his personal opposition to retroactive immunity with his responsibilities to move this legislation as Leader, he has given us every opportunity to speak out against this legislation.

He has worked hard to ensure the world’s foremost deliberative body would indeed be offered the chance to deliberate over a matter that goes to the very core of our Republic.

In Congresses past, I cannot say with certainty that my colleagues and I would have been afforded such an opportunity. And so I thank him.

Lastly, I want to thank the thousands who joined with us in this fight around the country – those who took to the blogs, gathered signatures for online petitions and created a movement behind this issue. Men and women, young and old, who stood up, spoke out and gave us the strength to carry on this fight. Not one of them had to be involved, but each choose to become involved for one reason and one reason alone:

Because they love their country.

They remind us that the “silent encroachments of those in power” Madison spoke of can, in fact, be heard, if only we listen.

All of us—my colleagues and citizens around the country—share a fundamental belief about in our Constitution, Mr. President. We believe our Constitution isn’t incidental to our security – but rather its very foundation.

This notion—that it is the rule of law that keeps us safe—should not be controversial, Mr. President.

I take a backseat to no one when it comes to protecting Americans and Americans’ safety. But if history has taught us anything, it simply isn’t necessary to sacrifice our freedoms to do that.

I do not believe history will judge this President kindly for his contempt for the rule of law. But will history will be any kinder to those of us who have served as these transgressions occurred on our watch?

I have two daughters – Grace and Christina, who are six and three. Their generation will ask someday:

Where were you when the President asked you to repudiate the Geneva Conventions and strip away the right of habeas corpus?

Where were you when stories of secret prisons and outsourced torture first began to surface and then became impossible to deny?

And of today they will ask, where were you when Congress was persuaded to shield wealthy corporations that may well have knowingly acted outside of the law to spy on Americans?

Where were we?

Right here, Mr. President – in this chamber, at this moment.

History will not forget.

It will not forget our role in any of this.

And just as surely as subsequent generations will ask all those questions of us, what will be clear is that we will have failed to ask ourselves one very fundamental question:

Does America stand for the rule of law, or the rule of men?

That question never goes away – it has been with us these seven long years. It will haunt us long after this bill passes, long after this Administration recedes into history, long after we all have passed into history ourselves. Indeed, generations of leaders in free societies have struggled to answer it for thousands of years.

That is the question every generation must answer for themselves. It is a battle for the American soul – waged between our better angels and our worst fears. Our Founders answered the question correctly.

Will we?

Mr. President, allow me to close with one of my favorite quotations – one I have recited on this floor many times. It is from Justice Robert Jackson’s opening statement at the Nuremberg trials. And it reads:

“That four great nations, flushed with victory and stung with injury, stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason.”

Mr. President, the tribute that Power owes to Reason is as clear today as it was when those words were spoken more than a half-century ago:

That America stands for a transcendent idea.

The idea that laws should rule, not men.

The idea that the Constitution does not get suspended for vengeance.

The idea that when this nation begins to tailor its eternal principles to the conflict of the moment, it risks walking in the footsteps of the enemies we despise.

For, as Margaret Thatcher said, “When law ends, tyranny begins.”

Today, let us pay the tribute that Power owes to Reason today – in this moment, with these votes.

I implore my colleagues to vote against retroactive immunity…against cloture…and above all, for the rule of law.