The Principles At Stake In FISA

I think it's important to note that the FISA bill which came out of the Senate Intelligence Committee would draw a Presidential veto because of Ron Wyden's amendment requiring a FISA warrant to wiretap Americans overseas. So as much as I admire Chris Dodd's principled stand on telecom immunity, even if he relented and the SSCI version of the bill became pre-eminent, it would be vetoed. Not to mention the fact that Wyden's amendment is I feel crucial, otherwise Americans abroad could be randomly targeted at the whim of the Attorney General:

One amendment, which we offered along with Senator Whitehouse, ensures that whenever the government wants to target an American overseas, the FISA Court – and not just the Attorney General – must determine that there is probable cause that the American is an agent of a foreign power. Americans’ rights should not diminish when they cross the border, nor should the extent of those rights be subject to the whim of the executive branch without the checks and balances provided by the court.

All this does is add a layer of judicial review to determining who is an agent of a foreign power. It's a move the Founders would have pulled to ensure that no one branch predominate. But this is an Administration that literally believes the courts and the Congress have no role in many aspects of government. I'm glad Dodd is out there fighting, because telecom immunity is simply wrong. But this is an amendment worth fighting for as well.

Studs Terkel, himself a subject of government-encouraged blacklisting at one time, wrote an incredible essay for the New York Times on the subject yesterday:

In 1978, with broad public support, Congress passed the Foreign Intelligence Surveillance Act, which placed national security investigations, including wiretapping, under a system of warrants approved by a special court. The law was not perfect, but as a result of its enactment and a series of subsequent federal laws, a generation of Americans has come to adulthood protected by a legal structure and a social compact making clear that government will not engage in unbridled, dragnet seizure of electronic communications.

The Bush administration, however, tore apart that carefully devised legal structure and social compact. To make matters worse, after its intrusive programs were exposed, the White House and the Senate Intelligence Committee proposed a bill that legitimized blanket wiretapping without individual warrants. The legislation directly conflicts with the Fourth Amendment of the Constitution, requiring the government to obtain a warrant before reading the e-mail messages or listening to the telephone calls of its citizens, and to state with particularity where it intends to search and what it expects to find.

Compounding these wrongs, Congress is moving in a haphazard fashion to provide a “get out of jail free card” to the telephone companies that violated the rights of their subscribers. Some in Congress argue that this law-breaking is forgivable because it was done to help the government in a time of crisis. But it’s impossible for Congress to know the motivations of these companies or to know how the government will use the private information it received from them.

And it is not as though the telecommunications companies did not know that their actions were illegal. Judge Vaughn Walker of federal district court in San Francisco, appointed by President George H. W. Bush, noted that in an opinion in one of the immunity provision lawsuits the “very action in question has previously been held unlawful.”

I have observed and written about American life for some time. In truth, nothing much surprises me anymore. But I always feel uplifted by this: Given the facts and an opportunity to act, the body politic generally does the right thing. By revealing the truth in a public forum, the American people will have the facts to play their historic, heroic role in putting our nation back on the path toward freedom. That is why we deserve our day in court.

This is a really simple issue. If we allow the federal government to spy indiscriminately on Americans, to use "basket warrants" to suck up a whole bunch of data and figure out what to use it for later, to allow telecom companies who have massive legal staffs to assist in illegality with no cost, we have switched places with the Soviets.