FISA: Feingold And Dodd Throw Down

You get the sense that the FISA fight is moving to an endgame, when the two biggest defenders of civil liberties and the privacy of Americans in this debate send a letter to their leadership asking them to remember the Constitution.

Dear Majority Leader Reid, Speaker Pelosi, Majority Leader Hoyer, Chairman Leahy, Chairman Conyers, Chairman Rockefeller and Chairman Reyes,

As you work to resolve differences between the House and Senate versions of the FISA Amendments Act of 2008, we urge you to include key protections to safeguard the privacy of law-abiding Americans, and not to include provisions that would grant retroactive immunity to companies that allegedly cooperated in the President’s illegal warrantless wiretapping program.

With respect to immunity, we are particularly concerned about a proposal recently made by Senator Bond, and want to make clear that his proposal is just as unacceptable as the immunity provision in the Senate bill, which we vigorously opposed. As we understand it, the proposal would authorize secret proceedings in the Foreign Intelligence Surveillance Court to evaluate the companies’ immunity claims, but the court’s role would be limited to evaluating precisely the same question laid out in the Senate bill: whether a 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.”

Information declassified in the committee report of the Senate Select Committee on Intelligence on the FISA Amendments Act, S. 2248, confirms that the companies received exactly these materials:

The Committee can say, however, that beginning soon after September 11, 2001, the Executive branch provided written requests or directives to U.S. electronic communication service providers to obtain their assistance with communications intelligence activities that had been authorized by the President.

… The letters were provided to electronic communication service providers at regular intervals. All of the letters stated that the activities had been authorized by the President. All of the letters also stated that the activities had been determined to be lawful by the Attorney General, except for one letter that covered a period of less than sixty days. That letter, which like all the others stated that the activities had been authorized by the President, stated that the activities had been determined to be lawful by the Counsel to the President.

In other words, under the Bond proposal, the result of the FISA Court’s evaluation would be predetermined. Regardless of how much information it is permitted to review, what standard of review is employed, how open the proceedings are, and what role the plaintiffs’ lawyers are permitted to play, the FISA Court would be required to grant immunity. To agree to such a proposal would not represent a reasonable compromise.

There's more at the link and I urge you to read the whole letter. The ACLU has also made their opposition known. There are still "basket warrants" in this compromise bill, which rejects the clear intent of the 4th Amendment by allowing surveillance on individuals without a case made in court as to the need for surveillance of that specific individual. There is also an exception to the exclusivity agreement in the bill for "exigent circumstances," which basically gives the executive the ability to trump any civil liberties protections and spy on whoever he or she wishes. And of course, as Feingold and Dodd note, it lets the telecoms and the government off the hook for illegal spying.

There are lots more problems with the bill but your government and your media doesn't want you to know about it, and so they are censoring free speech that tries to raise awareness.

Two weeks ago, the Blue America PAC submitted ads to numerous cable television stations, newspapers and radio stations criticizing Blue Dog Rep. Chris Carney (D-Pa) for his support of a bill to expand dramatically the President's warrantless eavesdropping powers and to immunize telecoms (such as Comcast) which broke the law in enabling the Bush administration to spy on their customers with no warrants. The ads also documented that several of the lawbreaking telecoms which would benefit most from the amnesty Carney advocates donated substantial sums to his campaign (with Comast being the largest such contributor to Carney).

The ads that were submitted were accepted by numerous newspapers and radio stations in Carney's district, as well as one television station operator (one much smaller than Comcast). None of the companies which own those media outlets were involved in the President's spying program nor were they criticized by the ad, and they have been running the ads for many days now.

By stark contrast, Comcast -- from the moment the ad was submitted -- was blatantly reluctant to broadcast the ad, insisting that numerous, extremely cumbersome "conditions" be met before they would consider accepting the ad. But even once those conditions were repeatedly met -- in the form of ample "substantiation" documenting the claims made in the ad -- Comcast continued to concoct additional barriers. When it was conveyed last week to Comcast's representative that it was becoming increasingly clear that they were refusing to broadcast the ad because it was critical of the role it played in the Bush administration's illegal spying program, and because the ad targeted a Congressman to whom Comcast representatives have contributed generously (and who is working hard to secure amnesty for Comcast), Comcast advised Blue America that it was retaining outside legal counsel to advise it on whether it should accept the ad [...]

Manifestly, Comcast is refusing to broadcast these ads for one simple reason: because they want to suppress any viewpoints critical of their behavior in this matter [...] Comcast has no legal obligation, at least that I'm aware of, to broadcast particular ads. But the danger of allowing corporations like Comcast to control the content of vital political debates by refusing to broadcast ads that are critical of them or their Congressmen is manifest, and that's particularly true where -- as is the case for Rep. Carney's district -- one company controls the bulk of the important television outlets. In an age where corporate consolidation of our most influential media outlets is increasing rapidly, companies such as Comcast can suppress the expression of political views it dislikes -- or conceal their own illegal behavior -- by censoring any political viewpoints that are contrary to their interests or to the interests of the political figures who receive substantial contributions from them and then serve them. Obviously, that is precisely what Comcast is doing here.

The fix really does look to be in on this one. That's why Feingold and Dodd are speaking up now. The Bush Administration and their corporate benefactors are desperate to immunize themselves for illegal spying on Americans, and they'll go to whatever lengths necessary to get the law passed. People power is going to need to be stronger than ever on this one.

UPDATE: I think Eric Lichtblau gets these issues pretty well, but his latest article is basically outsourced to Kit Bond fearmongering, with the attendant "we are going to lose intelligence-gathering capabilities" if we don't give Bush everything he demands. Lichtblau knows better, this is sad.