The Problems With This FISA Bill

Tuesday, July 8, 2008

In the July 3 editorial "FISA Follies," The Post criticized opponents of immunity for lawbreaking telecommunications companies, saying that, even if the editorial was wrong on that score, "the more important concern is to ensure that there are adequate protections in place, including vigilant court oversight, to give intelligence agencies the flexibility they need to intercept international communications without infringing on the privacy rights of Americans."

But what's amazing is how little attention the editorial paid to this critical part of the debate. The fact is that the revisions of the Foreign Intelligence Surveillance Act under consideration in the Senate this week would virtually do away with the role of the FISA court in overseeing new dragnet surveillance. Its role would be reduced to little more than serving as a rubber stamp.

It is a shame that the paper that uncovered the Watergate scandal, which helped lead to more congressional oversight of executive authority and the checks and balances of FISA, now believes that the president once again should have unfettered power to spy on Americans.



Washington Legislative Office

American Civil Liberties Union



The July 3 editorial "FISA Follies" may have been right in saying that the issue of whether to grant immunity to telecommunications companies that allegedly cooperated with the Bush administration's warrantless surveillance program is "not the most . . . important aspect of the complex FISA debate." But the editorial's position on both immunity and the privacy protections in the revision of the Foreign Intelligence Surveillance Act before the Senate was deeply misguided.

Granting blanket immunity to companies alleged to have cooperated with this illegal program will only encourage such companies to cooperate with an executive branch that wants to break the law and violate Americans' privacy in the future. Moreover, this bill gives the government broad new powers to collect information on innocent Americans within the United States without providing nearly enough protections for privacy.

The government absolutely must be able to wiretap suspected terrorists to protect our security, and every member of Congress supports that. With this bill, however, for the first time since FISA was adopted 30 years ago, the government would be authorized to collect all communications into and out of the United States without warrants. That means Americans e-mailing relatives abroad or calling business associates overseas could be monitored with absolutely no suspicion of wrongdoing by anyone. This bill overturns the laws and principles that have governed surveillance for the past 30 years. The Senate should reject it.


U.S. Senator (D-Wis.)



The July 3 editorial "FISA Follies" FISA stated:

"The telecommunications companies complied with a government request after being assured, in writing, that the activities had been authorized by the president and deemed lawful by the attorney general. Punishing them by forcing them to endure the cost and hassle of lawsuits would be counterproductive to securing such cooperation in the future, while offering little prospect of a useful outcome."

However, as University of Houston law professor Jordan J. Paust has noted, the 1852 Supreme Court decision Mitchell v. Harmony affirmed that superior orders are not a defense: "[an] order to do an illegal act . . . can afford no justification." And in 1912, a Texas District Court affirmed, in Ex parte Orozco, that conduct resting "merely upon an order directed by the President" was illegal and cannot "be sustained in a court of justice."

In fact, at least one telecommunications company, Qwest, knew that the order was illegal and refused to comply.

The compliant telephone companies may have colluded in the violation of the Fourth Amendment. Let them defend themselves in open court so that the truth is known. Surely they expend legal resources on far more trivial matters.



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