House Buckles to Bush on FISA

For almost six years after Sept. 11, 2001, telecommunications companies allegedly helped the National Security Agency eavesdrop on American phone and computer lines without FISA Court warrants.

The Electronic Frontier Foundation and the ACLU are coordinating the 47 remaining suits filed as a result. After unsuccessfully trying to get the matter thrown out of court, the companies have spent a huge amount of money lobbying Congress. January 20, Lindsay Renick Mayer of the Center for Responsive Politics reported that:

The industry has spent a total $13.4 million on lobbying in the first three months of this year, putting it on course to surpass last year's $40.2 million total. Both AT&T and Verizon moved up in the ranks of companies spending on lobbying efforts (including those in all industries), from eighth and 13th last year to third and fourth, respectively, so far this year.

The industry has also given a total of $5.3 million in federal contributions to parties, committees and candidates this election cycle, with 54 percent going to Republicans. That figure excludes any money given to Congress since March 30, i.e. contributions made as lawmakers prepared to vote on the immunity issue.

President Bush has demand repeatedly that Congress update the FISA law, promising to veto any bill which does not provide immunity for the companies, saying that Congress must not

limit our ability to collect this intelligence and keep us safe, staying a step ahead of the terrorists who want to attack us.

Critics such as attorney Glenn Greenwald say that retroactive immunity serves to

eviscerate the Fourth Amendment [my link], exempt their largest corporate contributors from the rule of law, and endorse the most radical aspects of the Bush lawbreaking regime.

June 18, Kevin Bankston (email), a senior staff attorney at the Electronic Frontier Foundation, warned,

whatever gloss might be put on it, the so-called “compromise” on immunity for phone companies that broke the law is anything but a compromise, and that Congress appears poised to needlessly toss the rule of law out the window and deprive these millions of ordinary Americans of their day in court. My one simple message is that no matter how they spin it, this is still immunity, period.

Indeed, there’s an easy litmus test that everyone can use when evaluating this proposal or any other: does it allow the court to rule on the legality of the surveillance? That is, does it allow the plaintiffs to obtain a public decision on whether the companies broke the law, and if they did, to get an injunction to stop them from breaking the law again? If the answer is “no”, then it’s still immunity, plain and simple.

With the failure to pass an extension of last year's Protect America Act, it looked for a few months like the House, at least was ready to stand up to the President on the issue of telecom immunity. It took a while, but Mr. Bush has now gotten his way. Peter Hoekstra (R-MI) and Lamar Smith (R-TX) introduced the FISA Amendments Act of 2008, (HR 6304) on 6/19/08 and the House passed the measure less than twenty-four hours later by a vote of 293-129 . 105 Democrats voted in favor of the "bipartisan compromise," which took advantage of division among Democrats. In the June 20 debate (Congressional Record), one one of the opponents of the bill, Barbara Lee (D-CA) had argued ,

I rise in strong opposition to this very terrible bill. It does not strike the proper balance between protecting national security and preserving our cherished civil liberties.

Now I know how important those protections are from my personal experience with unwarranted domestic surveillance and wiretapping during the J. Edgar Hoover period. The government's infamous COINTELPRO program ruined the lives of many innocent persons. Others, including myself, had their privacy invaded even though they posed absolutely no threat to national security. We all remember how Dr. King and his family were the victims of the most shameful government-sponsored wiretapping. We must never go down this road again. Yet here we are again.

This bill undermines the ability of Federal courts to review the legality of domestic surveillance programs, it provides de facto retroactive immunity to telecom companies and does not sunset until December 31, 2012. How can we do that? Four years is way too long.

A good bill will protect Americans against terrorism and not erode the fourth amendment. This bill scares me to death, and I urge a "no'' vote.

And yet, Democrats voting aye included not just those affilliated with the 48 member Blue Dog Coalition, but also Rick Boucher (VA), Nick Rahall (WV), John Murtha (PA), House Leader Nancy Pelosi (CA) and House Speaker Steny Hoyer (MD). One Republican, Tim Johnson (IL) voted against the bill.

The Senate has the bill is on the calendar for next week and, of course, had already acceded to immunity. Barack Obama issued a statement in support of the House bill June 20, but said he would "try" to strip a provision granting immunity to telecommunication companies. Of course, a former vote to do the same failed the Senate on the last go round. Bloomberg announced on June 22 that Senate Majority Leader Harry Reid, in an interview to be aired on "Political Capital with Al Hunt," said he may schedule a separate vote on stripping immunity from the bill, although he expressed pessimism about its success.

Pelosi's office has outlined her reasons for supporting the bill. The first is political. An unnamed "top" aide told Time's Massimo Calabresi for a June 20 post "Behind the Compromise on Spying" that as many as ten House races might have been affected.

Second, Pelosi contends that the telecoms offered a significant concession from the the Senate version of the bill in offering to let a judge decide if the letters they received from the Administration asking for their help show that the government was after terrorist suspects. The telecoms are casting it as a victory. She also argues that a Justice Department inspector general review of and report on Bush's domestic surveillance program and a provision making clear that Congress does not give the President a free pass on complying with domestic surveillance laws during wartime "strengthens Congressional oversight."

The ACLU commissioned a study by the Mellman Group back in October 2007 which showed that "voters vigorously oppose warrantless wiretaps, blanket warrants, and telecom amnesty." One wonders why Pelosi was so sure that signing away thse rights was necessary. Glenn Greenwald points out:

The very idea that Democrats would lose elections if they didn't support this bill is false on numerous levels. They could have easily removed the issue simply by voting to extend the PAA orders for 6-9 months. More importantly, Karl Rove's central strategy in the 2006 midterm election was to use FISA and torture to depict the Democrats as being Weak on Terrorism, and the Democrats crushed the Republicans and took over both houses of Congress. Pelosi's claim that they support extremist Bush policies in order to avoid election losses in "swing districts" is dubious in the extreme -- an excuse to feed to Democratic voters to justify their complicity in these matters.