“I have a note from my mom”

I’m far too peeved by Congressional caving in on the “FISA Amendments Act of 2008” to write intelligently about it.  I will note that a majority of the Democrats voted against it, but between all but one Republican voting for it and a narrow minority of Dems alongside them (including Speaker Pelosi), it passed 293-129.

In addition to reforming various aspects of the FISA courts, its main provision effectively grants immunity to telecomm companies from law suits filed against them regarding their participation in the secret (and illegal) warrantless wiretapping of Americans. All the telecomms have to do is show a note from their mother a request from the Administration saying that they wanted cooperation and, yup, we promise it’s legal, and they are off the hook. The actual legality of the activities makes no difference; whether the telcos made a judgment of the legality isn’t germane, either. All the courts can do is judge whether the telcos were told they were legal, and the telcos are off the hook.

And if the Attorney General, or an intelligence agency head, comes to AT&T and says, “Do X, it’s legal, and if you don’t, do you have any idea of the trouble we can put you through?” how likely that AT&T is going to do anything other than get the fellow a coffee and start doing whatever X is? Not only is it dangerous to cross an Administration that regulates your industry, but now there’s no consequences to not doing so.

And given that these law suits are likely the only way we will, for decades, ever find out anything further about the domestic wiretapping program, we’ve effectively turned the Cone of Silence on internal/homeland spying by the government. While the FISA improvements sound like they may be a good idea (and are the excuse used by the Dems as to why they just had to pass it), they are purchased at (IMO) too high a cost.

I’ll refer you, instead to these articles:

Obsidian Wings: FISA: Why It Matters 

Our system of government is built on the separation of powers: Congress passes laws, the Executive implements those laws, the Courts interpret them, and all of us, including the President, obey them. This system is currently under threat. Our President and his advisors believe three things which are wrong individually, but disastrous when combined. These are:

(1) The President can do whatever he wants during wartime, whether or not it violates the laws.

(2) It is always wartime, and the battlefield is everywhere, both at home and abroad.

(3) The President has the right to keep what he is doing completely secret. No one — not citizens, not Congress, not anyone — has the right to force him to reveal what he and others in the Executive are doing.

As I said, each of these is wrong individually, but the combination of all three is absolutely toxic. And the secrecy is crucial: if no one knows what the Executive is doing, no one can challenge it.

The FISA controversy puts all three principles together. The President claims that the War Powers he discerns somewhere in Article II of the Constitution give him the right to violate the FISA law, and to enlist the help of the telecoms. The Democrats offered a long time ago both to grant the basic fixes in the FISA law that the President wants, and also to allow the government to substitute for the telecoms in the various lawsuits against them. The latter amendment would have allowed the lawsuits to proceed without the telecoms being in jeopardy. It failed, with only one Republican voting in favor.

If the FISA “compromise” passes, it will mean that a President just needs to authorize some program, and say that he thinks it is legal, and telecoms cannot be sued for going along with it, even if it violates the law. Given a President who claims to believe, as Bush does, that whatever he wants to do is legal so long as it is an exercise of his War Powers, this is a recipe for disaster. Moreover, these lawsuits are the only way in which anyone can get redress, since the courts have ruled (pdf) that no one has standing to sue the government unless she can show that her communications have been intercepted. It’s also the only way in which citizens can discover what this program involves, so long as Congress refuses to do its job — not that Congressional investigations would necessarily have helped, since the administration has shown very little willingness to share information about this program with Congress.

Obsidian Wings: FISA “Compromise” 

To recap: there are some minor fixes to the FISA law that everyone agrees should be adopted. The sticking point is whether companies that helped the government engage in surveillance that broke the law should receive immunity for their actions. It seems to me clear that the answer is ‘no’. First, people who break the law should be held accountable. Second, we’re not talking about some private citizen who might understandably have been inclined to give the government the benefit of the doubt on questions of law, but about large companies with serious legal departments. Third, since our government does not seem inclined to tell us exactly what it has been doing, discovery in these lawsuits has been about the only way in which we have found out anything at all. Shutting down these lawsuits might prevent us from ever finding out.

Most importantly, though, when the government asks someone to break the law, they hold a lot of the cards: the prestige of the Presidency, the power to exclude companies from federal contracts, and so on. Just about the only reason someone might have to say no, other than conscience, is the fear of legal liability. By immunizing these companies, we make it much more likely that the next time some President who thinks he has dictatorial powers asks a company to break the law, it will do so. And that’s just wrong.

[…] This would be a stupid law to pass even in more normal times, when we might hope that government lawyers would really try, in good faith, to determine whether some program really was legal or not. But it’s an insane law to pass now, when the administration takes the view that the President has the authority legally to set aside any statutes he wants in the service of national security. This administration has held that it has the right to detain United States citizens indefinitely and without charges, and to set aside treaties it has signed and statutes by which it is bound, whenever it wants to, and that this is all “legal” because on their reading of the Constitution, the President’s war powers allow him to do whatever he feels like if he can convince himself that it’s relevant to national security. (I wish I were exaggerating.)

House Falls Down on the Job | Electronic Frontier Foundation 

Senator Bond’s gloating statement to the New York Times showed the true picture: “I think the White House got a better deal than even they had hoped to get.” The Washington Post wrote that the bill “hands President Bush one of the last major legislative victories he is likely to achieve.” And the San Francisco Chronicle, writing from Speaker Pelosi’s home district, called the vote “weak, timid, spineless.” 

To say that EFF is disappointed in the House Leadership’s support for this bill is an understatement. Speaker Pelosi and Majority Leader Hoyer, so vocal in their opposition to telecom immunity last March, capitulated to a dangerous “compromise” that gives the telecoms and the Bush Administration what they have been demanding for over a year: Protection from court cases that threaten to uncover the extent of the President’s illegal spying program.

House Caves, Approves Fake ‘Compromise’ on Telecom Immunity | Electronic Frontier Foundation 

The bill was touted as a bipartisan “compromise” on the issues of electronic surveillance and immunity. But in fact it requires dismissal of lawsuits against companies like AT&T that participated in the program as long as the companies received a piece of paper from the government indicating that the surveillance had been authorized by the president and was determined to be lawful.

“Immunity for telecom giants that secretly assisted in the NSA’s warrantless surveillance undermines the rule of law and the privacy of every American,” said EFF Senior Staff Attorney Kevin Bankston. “Congress should let the courts do their job instead of helping the administration and the phone companies avoid accountability for a half decade of illegal domestic spying. If this legislation passes the Senate and is signed into law, the American people will have lost their last best chance to discover the true scope of the president’s wiretapping program and to determine whether or not the law was broken.”