What one citizen thinks about the FISA ‘compromise’.
Dear Ms. Giffords, (U.S. Rep. Gabrielle Giffords Southern Arizona)
I would like to take the time to explore this issue and your response to your decision to back this bill in more detail.
Yes, the FISA amendments (H.R. 6304) passed the House with a strong bipartisan vote. Is it your contention that bipartisan support is the yardstick to measure whether one should support a bill or not, regardless of constitutionality? Does bipartisan support make it inherently right? Please explain to me how this bill is a “compromise”? What in your regard has been compromised? In my regard, the 4th amendment has been “compromised”. Accountability has been “compromised”. The rule of law has been “compromised”. Justice has been “compromised”. Is that what Democrats mean when they repeatedly say it was a “compromise”?
Please explain this terminology of “modernized” FISA law? Please explain to me why it was necessary, rather seemingly critical, that the bill include “retroactive immunity” for the telecom companies who may have broken the law. Please elucidate to me point on point in your considered thinking process why this is necessary and why current FISA law needed the new amendments. I truly want to understand.
Current FISA (before the latest amendments) legislation protects the telecom companies from liability providing they obey the law. As Senator Russ Feingold stated “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 that the request meets all the statutory requirements. But if requests are not properly documented, the FISA legislation instructs the telecom companies to refuse the government’s request and does then subject them to liability if they decide to cooperate with the government.” Sounds pretty straightforward…accountability for actions taken that are unlawful.
Instead, Congress decides that the telecoms get a “do-over”. FISA law has been in effect since 1978. Authorization reportedly was denied less than 10 times in 3 decades. Telecom companies are not naïve nor need immunity. They have very knowledgeable well-funded legal departments with very knowledgeable lawyers. The original legislation devised a system to take the guesswork out i.e. the legal obligation and liability for compliance by the telecom company depends entirely on whether the government has provided the proper documentation. The telecoms were obligated to refuse or be subject to liability for their actions. I suspect that they knew full well their exposure and liability at the time of compliance. Qwest knew it and so did the others. Except, we’ll reward those who chose not to comply with the law. The law was broken but I guess Congress gets to decide when it really matters.
The conclusion that one is left with is that this HR 6304 is not about protecting Americans or the telecoms for that matter. It’s about expanding the surveillance capabilities of government on the citizens under the umbrella of national security. It’s about protecting those in government who have broken the law. Congress wants no accountability for itself or the President. Congress & the President do not want the public to have access or knowledge of what “our government” has been doing in the name of national security or is currently doing with regard to wiretapping and surveillance programs on its citizens. Congress & the President want citizens to be wiretapped. Most of all, Congress & the President want to stop the lawsuits because H.R. 6304 will result in the federal district courts granting immunity to the telecoms. Conveniently, this will bring an end to disclosure of details of the illegal surveillance program. We will never know what laws have been broken and hold anyone accountable for breaking the law.
When I spoke with your legislative aide in Washington, she had a very compelling argument on why these amendments were necessary. In fact, she almost convinced me that it was the “right” thing to do and that we citizens were more protected as a result. She stated that this amendment would allow the lawsuits to proceed. The courts would decide whether to grant retroactive immunity to the telecom companies which allegedly participated with the illegal warrantless wiretapping & surveillance.
However, Senator Feingold stated “the system is rigged… under the terms of the bill, a federal district court would evaluate whether there is substantial evidence that the 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.” We already know through public information that this is exactly the case…so under the terms of the proposal, the court is bound to grant retroactive immunity. Courts are required to dismiss the lawsuits or claims.” So, please, can you resolve these opposing views for me?
To paraphrase Senator Feingold, “How can you grant immunity when you don’t even know what you are granting immunity for…”
So what are the so-called compromises Congress had to make? I believe Congress put “on the table” the following to name just a few:
No probable cause or link to terrorism is required for surveillance Wholesale approval to bulk monitoring of electronic communications Extended the wiretapping approval waiting period from 72 hours to 1 week and allows use of info even if FISA finds the wiretap unlawful. Retroactive and Prospective Immunity (Funny, I didn’t think Congress had the power to grant immunity for future lawbreaking much less retroactively.) Less oversight in the surveillance Court will not be told who is the target for wiretappingSo, what did we citizens get in return for this “compromise”? May I remind you of the oath you took:
“I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter, so help me God.” Where in this oath does it say that you will uphold and enable those who violate the Constitution? Where does it say you will subvert the rule of law and the Constitution? It is a living document that is the foundation of this nation, not to mention why you are granted the privilege to make laws. You are complicit with subverting the Constitution which subverts our society and its founding values.
Again, I applaud you on your efforts to undermine citizens right to privacy and any oversight and accountability to those in our government and telecoms who have broken the law in this warrantless wiretapping policy. Thank you on a job well done.
Sincerely,
A Righteously Indignant Citizen