Wednesday, February 13, 2008

Senate Votes for Expansion of Spy Powers

I know I've been focusing a lot of attention on the FISA debate that's been going on in the Senate recently, but I don't really see a choice in the matter. There simply is no more important an issue for those that care about privacy, the constitution and the rule of law.

For this reason, I must say I feel a deep sense of betrayal, even sadness, by the Senate's passage of a FISA bill that not only gives telecommunication companies retroactive immunity for their crimes, but also codifies and approves of the eavesdropping and wiretapping of American citizens.

I should mentione however, that this fight is not over. The House's far superior "Restore Act" still needs to be reconciled with the constitution destroying Senate bill passed yesterday.

Let me begin by posting some clips from the New York Times coverage of this tragic vote, and then I'll give you an opportunity to take action by urging the House of Representatives to stop retroactive immunity in conference by standing strong for their version of wiretapping reform legislation.

The New York Times reports:

Finally, the Senate voted 68 to 29 to approve legislation that the White House had been pushing for months. Mr. Bush hailed the vote and urged the House to move quickly in following the Senate’s lead. The outcome in the Senate amounted, in effect, to a broader proxy vote in support of Mr. Bush’s wiretapping program. The wide-ranging debate before the final vote presaged discussion that will play out this year in the presidential and Congressional elections on other issues testing the president’s wartime authority, including secret detentions, torture and Iraq war financing.


The bill, which had the strong backing of the White House, allows the government to eavesdrop on large bundles of foreign-based communications on its own authority so long as Americans are not the targets. A secret intelligence court, which traditionally has issued individual warrants before wiretapping began, would review the procedures set up by the executive branch only after the fact to determine whether there were abuses involving Americans.

“This is a dramatic restructuring” of surveillance law, said Michael Sussmann, a former Justice Department intelligence lawyer who represents several telecommunication companies. “And the thing that’s so dramatic about this is that you’ve removed the court review. There may be some checks after the fact, but the administration is picking the targets.”

The Senate plan also adds one provision considered critical by the White House: shielding phone companies from any legal liability for their roles in the eavesdropping program approved by Mr. Bush after the Sept. 11 attacks. The program allowed the National Security Agency to eavesdrop without warrants on the international communications of Americans suspected of having ties to Al Qaeda. AT&T and other major phone companies are facing some 40 lawsuits from customers who claim their actions were illegal.


Democratic opponents, led by Senators Russ Feingold of Wisconsin and Christopher J. Dodd of Connecticut, argued that the plan effectively rewarded phone companies by providing them with legal insulation for actions that violated longstanding law and their own privacy obligations to their customers.


Mr. Dodd, who spoke on the floor for more than 20 hours in recent weeks in an effort to stall the bill, said future generations would view the vote as a test of whether the country heeds “the rule of law or the rule of men.” But with Democrats splintered, Mr. Dodd acknowledged that the national security argument had won the day. “Unfortunately, those who are advocating this notion that you have to give up liberties to be more secure are apparently prevailing,” he said. “They’re convincing people that we’re at risk either politically, or at risk as a nation.”

i would be remiss to not include the ACLU's reaction to the vote:

"The Senate had multiple opportunities to improve this atrocious bill and failed at every turn," said Caroline Fredrickson, director of the ACLU Washington Legislative Office. "Several amendments were offered to increase privacy protections, with many of them allowing for warrantless surveillance during emergency situations. It’s stunning that senators wouldn’t put their support behind amendments so fundamentally balanced. Protecting Americans' communications from pervasive and ill-defined surveillance goes to the very heart of the Fourth Amendment. Unfortunately, the Senate seemed determined to pass the least constitutional FISA bill possible."


"Senators Feingold and Dodd deserve kudos for their attempts to help make this awful Senate bill more palatable," said Fredrickson. "Though many questions still remain unanswered about years of domestic spying, the Senate has effectively sealed the vault by handing over immunity to the phone companies. The over forty legitimate lawsuits currently pending against them may end before they’ve begun. It’s a fact that Americans had their rights violated and now, by closing the courtroom door, they may be left with no recourse. The Senate failed us with this vote. It is a major step backward both for Americans’ privacy and the Constitution."


With that, I want to give yet another plea to let your representatives here from you! Here's an action alert from Working Assets:

Last fall, the House passed the RESTORE Act, a FISA reform bill that included solid oversight of domestic surveillance and did not contain retroactive immunity.

Now, because the House bill is so different from the legislation that the Senate just passed, there will be a conference between leaders of the House and the Senate to decide what legislation both bodies will put forward for the President to sign.

We need Speaker Nancy Pelosi and House Majority Leader Steny Hoyer to stand tall and ensure that the conference committee reports legislation that doesn't include retroactive immunity.

Take action and tell Speaker Pelosi and Majority Leader Hoyer to stand up for the rule of law.

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