Keep Watch as Congress Expands Government’s Power to Watch Us
By now most of us know that the Senate is considering an amendment to FISA (the Foreign Intelligence Surveillance Act) that will, among other things, provide retroactive immunity to telecom companies that participated in the surveillance scandals, and eliminate the need for court approval of surveillance of U.S. citizens abroad. And the Bush Administration says that if retroactive immunity doesn't stay in the bill, it's going to get vetoed. This issue is relevant to every American citizen across the political spectrum. So let's stay attentive to this issue and to just how much trampling upon our constitutional rights the government is going to be authorized (retroactively and in the future) to do.
What Happened Today
This morning the Senate voted on whether to proceed with consideration of S. 2248, a bill proposed by the Senate Intelligence Committee and endorsed by the White House, which provides retroactive immunity to telecom companies that broke a decades-long law and gave the government private information about innocent citizens' correspondence, without proper authorization to do so. The Senate Judiciary Committee had proposed an alternative bill supported by 14 Senators, including Feingold, Dodd, Obama, Biden, Clinton, Kennedy, and many others, which would not have provided retroactive immunity. But Senator Reid chose the Intelligence Committee’s bill as the “base” for the FISA amendment, much to the dismay of… well, me and most other people who don’t want the government unlawfully violating our privacy with the help of companies that know they won’t face any consequences for doing so.
The civil justice implications are clear: as the law stands now, companies are required to comply with the government's intelligence requests when they are accompanied by a court order. And the companies don't have to do guesswork as to whether the government's request is legitimate or just intrusive and in violation of our constitutional rights. But as the law would stand were this FISA amendment to pass, the checking power of the civil court system would be completely obliterated. This wouldn't matter to companies because they'd be immune to lawsuits, but it sure would matter to us and our sense of personal security.
This amandment is merely a grab for unbridled power to violate our privacy. Senator Feingold explains that the law as it stands works better:
[We] need to make sure that carriers don’t cooperate with illegitimate requests. We already have a law that tells companies when they should and when they shouldn’t cooperate, so they are not placed in the position of having to evaluate independently whether the government’s request for help is legitimate.
Instead of allowing the courts to apply that law to the facts – instead of allowing judges to decide whether the companies deserve immunity for acting appropriately -- the Intelligence Committee bill sends the message that companies need not worry about complying with questionable government requests in the future because they will be bailed out.
This is outrageous. Even more outrageous is that fact that if these lawsuits are dismissed, the courts may never rule on the NSA wiretapping program. This is an ideal outcome for an administration that believes it should be able to interpret laws alone, without worrying about how Congress wrote them or what a judge thinks. For those of us who believe in three independent and co-equal branches of government, it is a disaster.
Senator Dodd expressed his outrage with the porposed Amendment on the floor today. A notable highlight:
I have faith that when the American people understand the full extent of this president's contempt for the law, they will share my outrage...
I’ll ask the Senate candidly, and candidly it already knows the answer. Is this about OUR security, or is this about HIS power? I ask that question...because it is key to understanding why this administration is pushing so hard for telecom immunity. That is for secrecy. Richard Nixon, the same man who declared that if the President does it, it’s not illegal… raised secrecy to an art form because he understood that the surest way to amass power is to conceal it’s true extent. Secrecy can spring from the best motives, but as it grows, it begins to exist for its own self, for its own sake, to conceal its own abuses… Abuse thrives on secrecy.
But following his poignant and passionate speech urging his colleagues to “wait” if they wouldn’t “stop” the Intelligence Committee’s bill, the Senate voted 76-10 in favor of considering the Intelligence Committee bill without further debate. In other words, most of his colleagues voted to neither stop nor wait.
So... what's next?
Senators Dodd and Feingold are pushing for an amendment to strike the immunity provision from the Intelligence Committee bill, and have put out a summary on the myths and realities of retroactive immunity. Dodd has also promised to run a filibuster of the remainder of the Intelligence Committee bill. Others have expressed a commitment to running a filibuster as well, but if any indication can be found from today's lackluster opposition to proceeding with the Intelligence Committee bill, and the noted absence of campaigners Obama, Clinton, and Biden, all who supported the Senate Judiciary bill but didn't vote today, who knows whether this will happen?
Even if the fillibuster doesn't happen--this is a shining moment in which we actually see a representative, get this, representing our interests! And we see that representative defending the checking power of our democratic system by challenging the executive branch's attempt to go around the courts and above the law. Let's keep watching big brother as he works to make it easier to watch us more closely.