Bill Blake
07-02-2008, 10:44 AM
The FISA Amendments Act of 2008 has been billed as a compromise between Republicans and Democrats. We are asked to support it because it is a supposedly reasonable accommodation of opposing views.
Let me respond as clearly as possible: This bill is not a compromise. It is a capitulation.
This bill will effectively and unjustifiably grant immunity to companies that allegedly participated in an illegal wiretapping program. And this bill will grant the Bush administration — the same administration that developed and operated this illegal program for more than five years — expansive new authorities to spy on Americans' international communications.
I'm concerned that the focus on immunity has diverted attention away from the other very important issues at stake in this legislation. In the long run, it is going to be remembered as the legislation in which Congress granted the executive branch the power to sweep up all of our international communications with very few controls or oversight.
Title I of the bill has been sold to us as necessary to ensure that the government can collect communications between persons overseas without a warrant and to ensure that the government can collect the communications of terrorists, including their communications with people in the United States.
No one disagrees that the government should have this authority. But this bill goes much further, authorizing widespread surveillance involving innocent Americans at home and abroad.
Thirty years ago it was very expensive and not very common for most Americans to make an overseas call. Now, particularly with e-mail, millions of ordinary and innocent Americans communicate with people overseas for entirely legitimate personal and business reasons. Parents or children call family members overseas. Students e-mail friends they have met while studying abroad. Business people communicate with colleagues or clients overseas. Technological advancements combined with the ever more interconnected world economy have led to an explosion of international contacts.
Supporters of the bill like to say that we just have to bring FISA up to date with new technology. But if we are going to give the government broad new powers that will lead to the collection of much more information on innocent Americans, we have a duty to protect their privacy as much as we possibly can. And we can do that without sacrificing our ability to collect information that will help protect our national security. This supposed compromise, unfortunately, fails that test.
Let me now turn to the grant of retroactive immunity. Under the terms of this bill, a federal district court would evaluate whether there is substantial evidence that a company received "a written request or directive . . . from the Attorney General or the head of an element of the intelligence community . . . indicating that the activity was authorized by the president and determined to be lawful."
But we already know that the companies received exactly these materials. So the court will essentially be required to grant immunity.
Current law already provides immunity from lawsuits for companies that cooperate with the government's request for assistance, as long as they receive either a court order or a certification from the Attorney General that no court order is needed and the request meets all statutory requirements.
But if requests are not properly documented, FISA instructs the telephone companies to refuse the government's request and subjects them to liability if they instead decide to cooperate.
Telephone companies have a long history of receiving requests for assistance from the government. Yet, before [the original] FISA [law of 1978], there were basically no rules to help the phone companies resolve the tension between the government's requests for assistance in foreign intelligence investigations and the companies' responsibilities to their customers. This legal vacuum resulted in serious governmental abuse and overreaching. The abuses that took place are well-documented and quite shocking.
A primary purpose of FISA was to make clear, once and for all, that the telephone companies should not blindly cooperate with government requests for assistance. So Congress devised a system that would take the guesswork out of it completely. The telephone companies and the government have been operating under this simple framework for 30 years.
In view of this history, it is inconceivable that any telephone companies that allegedly cooperated with the administration's warrantless wiretapping program did not know what their obligations were. This whole effort to obtain retroactive immunity is based on an assumption that doesn't hold water.
Some of my colleagues want Americans to think that not granting immunity will damage our national security. But the only thing we'd be encouraging by granting immunity here is cooperation with requests that violate the law.
This immunity provision also will make it that much harder to get to the core issue that I've been raising since December 2005, which is that the president ran an illegal program and should be held accountable. When these lawsuits are dismissed, we will be that much further away from an independent judicial review of this program.
My opposition to this bill comes down to this: This bill is a tragic retreat from the principles that have governed government conduct in this sensitive area for 30 years. It needlessly sacrifices the protection of the privacy of innocent Americans. And it is an abdication of the Senate's duty to stand up for the rule of law.
Wisconsin Democratic Sen. Russ Feingold serves on the Senate Select Committee on Intelligence and the Senate Judiciary and Foreign Relations committees.
This commentary was condensed from remarks Feingold made on the Senate floor on June 25.
Let me respond as clearly as possible: This bill is not a compromise. It is a capitulation.
This bill will effectively and unjustifiably grant immunity to companies that allegedly participated in an illegal wiretapping program. And this bill will grant the Bush administration — the same administration that developed and operated this illegal program for more than five years — expansive new authorities to spy on Americans' international communications.
I'm concerned that the focus on immunity has diverted attention away from the other very important issues at stake in this legislation. In the long run, it is going to be remembered as the legislation in which Congress granted the executive branch the power to sweep up all of our international communications with very few controls or oversight.
Title I of the bill has been sold to us as necessary to ensure that the government can collect communications between persons overseas without a warrant and to ensure that the government can collect the communications of terrorists, including their communications with people in the United States.
No one disagrees that the government should have this authority. But this bill goes much further, authorizing widespread surveillance involving innocent Americans at home and abroad.
Thirty years ago it was very expensive and not very common for most Americans to make an overseas call. Now, particularly with e-mail, millions of ordinary and innocent Americans communicate with people overseas for entirely legitimate personal and business reasons. Parents or children call family members overseas. Students e-mail friends they have met while studying abroad. Business people communicate with colleagues or clients overseas. Technological advancements combined with the ever more interconnected world economy have led to an explosion of international contacts.
Supporters of the bill like to say that we just have to bring FISA up to date with new technology. But if we are going to give the government broad new powers that will lead to the collection of much more information on innocent Americans, we have a duty to protect their privacy as much as we possibly can. And we can do that without sacrificing our ability to collect information that will help protect our national security. This supposed compromise, unfortunately, fails that test.
Let me now turn to the grant of retroactive immunity. Under the terms of this bill, a federal district court would evaluate whether there is substantial evidence that a company received "a written request or directive . . . from the Attorney General or the head of an element of the intelligence community . . . indicating that the activity was authorized by the president and determined to be lawful."
But we already know that the companies received exactly these materials. So the court will essentially be required to grant immunity.
Current law already provides immunity from lawsuits for companies that cooperate with the government's request for assistance, as long as they receive either a court order or a certification from the Attorney General that no court order is needed and the request meets all statutory requirements.
But if requests are not properly documented, FISA instructs the telephone companies to refuse the government's request and subjects them to liability if they instead decide to cooperate.
Telephone companies have a long history of receiving requests for assistance from the government. Yet, before [the original] FISA [law of 1978], there were basically no rules to help the phone companies resolve the tension between the government's requests for assistance in foreign intelligence investigations and the companies' responsibilities to their customers. This legal vacuum resulted in serious governmental abuse and overreaching. The abuses that took place are well-documented and quite shocking.
A primary purpose of FISA was to make clear, once and for all, that the telephone companies should not blindly cooperate with government requests for assistance. So Congress devised a system that would take the guesswork out of it completely. The telephone companies and the government have been operating under this simple framework for 30 years.
In view of this history, it is inconceivable that any telephone companies that allegedly cooperated with the administration's warrantless wiretapping program did not know what their obligations were. This whole effort to obtain retroactive immunity is based on an assumption that doesn't hold water.
Some of my colleagues want Americans to think that not granting immunity will damage our national security. But the only thing we'd be encouraging by granting immunity here is cooperation with requests that violate the law.
This immunity provision also will make it that much harder to get to the core issue that I've been raising since December 2005, which is that the president ran an illegal program and should be held accountable. When these lawsuits are dismissed, we will be that much further away from an independent judicial review of this program.
My opposition to this bill comes down to this: This bill is a tragic retreat from the principles that have governed government conduct in this sensitive area for 30 years. It needlessly sacrifices the protection of the privacy of innocent Americans. And it is an abdication of the Senate's duty to stand up for the rule of law.
Wisconsin Democratic Sen. Russ Feingold serves on the Senate Select Committee on Intelligence and the Senate Judiciary and Foreign Relations committees.
This commentary was condensed from remarks Feingold made on the Senate floor on June 25.