Tuesday, July 01, 2008

FISA and immunity for telecoms companies

My excellent Congressman responded regarding FISA and immunity for telecoms. I am not sure I agree with his rationale entirely, but he certainly provided a lot of detail and food for thought (below).

He refers to Mr. Bush's program as the "terrorist surveillance program." I think that is a mistake.

This is not about terrorists. Of course we should listen in on terrorists. And if Americans are involved in terrorism (Tim McViegh certainly was), we should listen in on them too. OF COURSE we should. Wiretaps are necessary.

This is about who oversees those wiretaps - the courts, like the People commanded in the Constitution, or just Mr. Bush and those he appoints - not a group known for getting things right on anything in the past, not a group known for putting partisan politics aside, thus not a group we should trust in the future.

I want all terrorists and suspected terrorists bugged, monitored, surveillance on them 24/7, I want their mail opened and read, I want their Internet activity in the hands of the government. I want the same for suspected terrorists. I want us to find them and eliminate them. That is not what this debate is about.

The problem is that Mr. Bush says he can't do that successfully if he has to allow a judge to be involved in that process in any way. Because of "national security." And he won't explain why, he just wants us to trust him. When questions are raised he attacks the questioners and pretends the issue is whether we should listen to terrorists. That is not - never has been - the issue.

Yes, we should listen to terrorists and suspected terrorists. Damn right we should spy on them. I don't hear anybody who says otherwise. But why can't a judge oversee that process like the Founding Fathers commanded? Mr. Bush won't even explain, he just keeps insisting that it is "complicated" and "national security" and "we need to listen in on terrorist phone calls." Well, yes, we do, but why not allow a judge to oversee the warrants like we do for every other kind of dangerous crime? Like the Constitution says? Like the FISA law passed by Congress and signed by President Ford says after they considered those same issues very carefully?

Yes we need to listen in on terrorist phone calls, but why can't we trust our judicial branch instead of trusting only the executive branch? The Constitution says they both have to agree that a warrant is necessary - but wiretaps can start immediately without any warrant, a judge just reviews it later - and there is even a special, secret, top-security clearance court just for that - the FISA Court, with judges that have the highest security clearances around. They even approved 99.99 of all warrants that were asked for in the past (the president won't even ask them). And they are fast - ask for a warrant after you have already started, and you will have a response in hours - and you never, ever, ever have to wait before you listen, you listen first and then ask later - and if the warrant is denied (less than .001 of 1 percent of the time) you aren't in trouble, you just have stop because the very-agreeable top-security clearance court thinks you are way out of line (such as "we have to bug Obama's office - terrorism you know."). The president didn't even ask for warrants - he just ordered the NSA to listen in anyway and screw the Constitution and the rule of law and the People and the Judicial Branch. And this wasn't in the hours and days after 9/11, this went on for years, and even after he pushed through the Patriot Act. He never even asked for a law to allow him to do so even when the Republican majority was giving him anything he wanted including a war in Iraq. He didn't even ask - he just did it, and still won't say why. And then, when it was a problem, he stopped (or says he has) - but if it was so vital to our national security, why? He still refuses to explain. After all, he is the president and there are scary terrorists out there you know.

Why couldn't the president use that special secret court and stay within the law? He refuses to explain - instead, as I said, he twists the discussion so it becomes one about whether we should bug terrorist phones instead of how we do it. He won't trust the FISA court, but he wants us to trust him - and he is breaking the law every time he refuses to get a warrant. Why? He won't say. Is it possible that perhaps he is spying on his political opponents, digging up blackmail info against congressmen, etc. Oh, of course not. He would never stoop so low, right? Right?

Sorry, Mr. Bush - the people didn't trust George Washington with such power (warrantless searches), and I think we had (and have) a little more confidence in his abilities and fidelity to the law than to you. If we didn't trust George Washington, Abraham Lincoln, or FDR, given the huge threats they faced, I really don't see that we should confer such authority on you. That you just decided to take it anyway, hoping that by calling it the "terrorist survelliance program" it would silence critics because you could make the debate about scary terrorists and "weak-kneed liberals" rather than getting warrants like the law says, is certainly not a reason for us to trust you - even if you had a good track record of honesty and being right, which you sure as hell don't.

Which leads us to the immunity for telecoms companies that gave the executive branch of the federal government all of your emails and phone calls (yes, you too - ATT, for instance, allowed the NSA to monitor and copy everything on their networks - not just terrorists or suspects, but every email, phone call, text message, everything - yours and mine too. And they still have that data.). The president was willing to trust ATT, and ATT trusted the president - and the courts and the Constitution be damned, the president didn't trust either one.

And now lawsuits against ATT and others are tossed out. I was against that idea. Mr. Schiff voted for it. He explains why below, and I think he may be right. In any case, it was a tough call and he explained why he voted as he did. I am not sure I agree, but I sure will be proud to vote for Congressman Schiff again. I wish there were more dedicated public servants like him in Congress:

Dear Mr. Henderson:

Thank you for contacting me regarding the recent vote on the FISA Amendments Act. I appreciate hearing from you and welcome your feedback.

As you know, the House recently considered H.R. 6304, the "FISA Amendments Act of 2008." This legislation is intended to update the original Foreign Intelligence Surveillance Act (FISA) to ensure that our intelligence agencies can operate effectively, while ensuring that we respect the rule of law and the privacy and civil liberties of the American people.

In December 2005, we learned that the President was engaged in warrantless eavesdropping of Americans, contrary to law. In response, I introduced the "NSA Oversight Act" - legislation that clearly prohibited these actions by reiterating the exclusivity of FISA and our criminal wiretap statutes with regard to domestic electronic surveillance. After the Republican Leadership refused to consider my legislation, I offered an amendment on the House Floor that came within 7 votes of shutting down the President's Terrorist Surveillance Program unless it was brought under court supervision. Shortly after, the President announced that the activities under that program would be ceased and brought under FISA.

Nevertheless, I continued to believe it was necessary for Congress to respond to the President's dangerous assertion of unilateral authority in this area. Therefore, I offered an amendment on the House Floor in 2007 that clearly stated that FISA is the exclusive authority for engaging in domestic surveillance for foreign intelligence purposes. My amendment passed by a vote of 245-178, and marked the first time that Congress spoke on this issue. Unfortunately, this language was stripped out by Senate conferees.

As you know, Congress has continued to work to address this issue in order to formally bring all of our intelligence activities within the framework of FISA. Last year, Congress hastily passed the so-called "Protect America Act," legislation that I strongly opposed. Since that time, Congress has considered alternatives in order to restore civil liberties protections in this area. Earlier this year, a measure was proposed that passed overwhelmingly in the Senate. The Senate bill did not include sufficient protections for the civil liberties of Americans, and included provisions that would provide for retroactive immunity to certain telecommunications companies. I could not support this bill.

In order to prevent enactment of the Senate bill - or a reauthorization of the so-called "Protect America Act" - an alternative compromise bill, the "FISA Amendments Act of 2008," was proposed on the House side. While this legislation was imperfect and included items that I would have preferred were removed, the bill also included important civil liberties protections that I have fought for over the last two and half years.

As you know, the final bill included language that provides a summary procedure in the district court to determine whether the telecommunications companies should be immune from civil liability for complying with the surveillance requests of the Bush Administration. I pushed for a different process by which a court could fully hear arguments on the merits of these cases, including any defenses available in current law, while also ensuring that classified information was protected. Under this process, an inspector general would be tasked with representing the privacy rights of the American people, and the court could make an independent determination about whether companies violated the law by cooperating with the government. My proposal was not adopted in the compromise, and regrettably, far weaker language was adopted on this issue.

Although this was not the language I preferred on the immunity issue, the final bill also included key provisions that will protect the civil liberties of Americans. Specifically, the bill finally responds to the President's assertion that he can eavesdrop on Americans without a court order, by clearly stating that FISA and our criminal wiretap statutes are the exclusive authorities governing this area. Without this language, nothing will stop this president or future presidents from claiming the inherent authority to wiretap Americans without a court order. The proposal also provides for important oversight by the FISA court on the front-end, contains new protections against warrantless surveillance of U.S. persons abroad, and includes important safeguards to protect against reverse targeting of Americans. These important provisions made this a compromise I could support on balance, and I joined Speaker Pelosi, Senator Obama , and others in supporting this compromise.

The bill requires a full review by the Inspectors General of our national security agencies and of the President's warrantless wiretapping program to determine what took place in the past and to ensure accountability going forward. I continue to believe that Congress should fully investigate the actions of the Administration in this area. No immunity is provided to any government official who may have violated the law.

As a member of both the House Judiciary Committee and the House Permanent Select Committee on Intelligence, I intend to carefully monitor our nation's intelligence activities and to closely review the report by the Inspectors General. Since the bill includes an important sunset provision that calls for the expiration of the law in 4 years, Congress will be able to make any additional revisions needed and to ensure that any abuses are addressed.

An on-going job of a Representative in Congress is to help constituents solve problems with federal agencies, access services, and get their questions answered promptly. I also encourage you to subscribe to the Washington Update, my email newsletter which contains information on local events, my work in Washington , and even lets you weigh in on important issues through online polls. Visit me online at http://schiff.house.gov to subscribe. Please know that you can always reach me at (626) 304-2727 or via my website if I can ever be of additional assistance.

Thank you again for your thoughts. I hope you will continue to share your views and ideas with me.


Adam B. Schiff

Member of Congress


FDChief said...

"...provides a summary procedure in the district court to determine whether the telecommunications companies should be immune from civil liability for complying with the surveillance requests of the Bush Administration."

But the problem with this, JD? This "procedure" consists of:

1. The district court asks the Bushies "did you tell Telecom X that this was legal?"
2. Bushies produce document that says "This was legal."
3. Court quashes lawsuit.
4. Period.

The real importance of these lawsuits is that they are probably the ONLY way we, you and me, will EVER know what the hell the Bushies were doing. Once quashed, the original spying is secret and will be secret forever. Your legislator didn't HAVE to vote for this. He could have voted it down, the original FISA law (which worked just fine until certain scumb- sorry, Republicans broke it) would remain in effect and the lawsuits would go forward.

Nice argument, but I strongly disagree.

J.D. said...

actually, FD, it is easier than that. That is why I said it was "telecoms immunity" not "possible immunity." The only reason for that district court bullshit procedure is to allow the rat bastards to claim they didn't give immunity to the telecoms. But they did. The right-wing protected its corporate masters.

I think the acknowledgment that the president does NOT have authority to ignore FISA is important. As for the "real" truth, if our Congress is not willing to investigate and hold the administration responsible we have only ourselves to blame. The courts aren't going to be able to fix that even if ATT faces fines and fesses up. ATT can be fascist all day long (and it is) but I didn't vote for ATT. So perhaps this was the best that the current Congress could do.

But perhaps not. What bugs me is how f'ing afraid they are of the "veto power." Screw the veto and screw fillibusters. They should not avoid laws that should be passed or investigations that should go on because of the fear of a filibuster - let the right-wingers talk for 48 hours while the Dems just sit back and say over and over again "we are investigating but the Republicans keep protecting Bush." How will that do in November? Let the President veto bills - each time he does Sen. Obama should ask Sen. McCain if he would have done the same thing. How will that do in November? And when McCain says he would not have vetoed it, try to pass it over the veto - and when it fails, ask McCain why his own party isn't supporting him. How will that play in November.

And they should impeach Bush for the same reason - how will that play in November? I don't know and don't care. He needs to be impeached so that each and every representative has to be on the record as to whether he thinks Presidents should be above the law, and if they pass the act of impeachment, every Senator will have to be on the record as to whether he thinks the President should stay in office.

I think it would play in November just fine, but it is this month I am most concerned about - every day that lawbreaking moron is in the oval office harms America and the world.

basilbeast said...

I think the question here is whether it is better to fight to restore what you can of 4th Amendment rights to protect citizens against further infringement or to stake out a position of no change to FISA and to blast away from a sinking ship as the administration continues to get its way.

However, John Dean, on last night's CountDown, claims that the law is so poorly written ( through Republican bungling (?) ), even my Senator Brownback says so, that criminal immunity has not been excluded if this new FISA bill is passed, although the civil suits, as FDC says, would more than likely be quashed.

So, what it comes down to is trust in a possible future Obama administration to set his AG to investigating AND prosecuting criminal activity by the Bushies.

I would be satisfied with that, not out of any sense of revenge but simply to reaffirm ( isn't that a kick in the balls for US justice? ) the belief that no US citizen, no matter how high in gov't, is above the law.

Personally, I'm fed up with ignored subpoenas, chairmen of committees fuming because of stonewalling, really crappy current and past AGs, ad nauseam.


basilbeast said...

I feel comfortable with this position.


Publius said...

JD, IOTM that in this case, by praising your congresscritter for compromising WRT the immunity issue, you're adopting what many might term a "reasonable" position, i.e., accepting that politics is the art of the possible.

OTOH, I recall that last year, when many of us accepted that impeachment just wasn't possible in the political environment, you lambasted us for being of faint heart; you said, "Damn the torpedoes, full speed ahead." Even though, as you acknowledged, neither impeachment nor conviction were in the cards.

So which is it, JD? Are you a purist or not when it comes to these matters?

I'm with FDChief. I've been around the Fed for lo these many years now, and in my experience it's NEVER a good idea for the government to take action to hold either its own employees or contractors harmless when it comes to law-breaking. From the looks of things, the Fed has essentially decided to forgive any and all transgressions on the part of contractors in Iraq, and look how that's turned out. And of course, the executive branch, the constitutional entity that enforces the laws, has obviously opted out of taking any actions WRT to its own employees' conduct.

This is why immunity is a bad idea. The Telcos have tons of lawyers. All they have to do is "just say no," if they perceive that something they're asked to do under contract places them on shaky legal footing. Nah, instead, let's just pass a law making it LEGAL for them to commit ILLEGAL acts. Lewis Carroll would be proud of such reasoning.

Basil may have the key to the own thing. The saving grace may very well be that these bozos are so inept that they haven't even been able to write the law properly. Let's hope so. Because relying on the next administration to fully restore civil liberties is, IMO, a slim reed upon which to rest one's hopes.


basilbeast said...

Our Civil Rights are being eroded as we sit watching them, sold off by the US Senate for pottage.


However, as a practical matter, this enhancement of Americans' privacy rights may prove extremely limited. The government may not "target" Americans under the broad "authorizations" discussed in the previous section, and in some cases the government may discard information obtained about Americans as part of the required "minimization" procedures, but the government would retain significant latitude to decide which information it retains. The paradoxical consequence is that broader wiretapping orders may be approved more easily than narrower ones. For example, the government could not unilaterally "authorize" the "targeting" of a particular San Francisco resident's international communications. However, it could "authorize" a dragnet surveillance program that intercepted the international communications of all San Francisco residents under the pretext that it was "targeting" any foreign terrorists who might happen to communicate with San Francisco residents.

This is particularly troubling when we remember that in 2002, the Foreign Intelligence Surveillance Court of Review held that FISA does not prohibit coordination between foreign intelligence gathering and domestic law enforcement. That suggests that the FBI could ask the NSA to tailor its filters to intercept evidence of Internet gambling, copyright infringement, or other ordinary crimes. The Americans whose communications were turned over could not be the "target" of the surveillance, but the House legislation requires only that foreign intelligence gathering be "a significant purpose" of eavesdropping programs. If a terrorist surveillance program also catches American citizens who are gambling or infringing copyright law, that's even better!

This is not the same America thousands left homes and families to fight for our freedoms against the freedom-haters in Afghanistan and Iraq.


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