UPDATE: In a sad and unsurprising vote, the Senate
passed the FISA renewal with retroactive legal immunity for the telecom companies. The battle moves to the House, where hopefully our elected officials will remember that they are there to uphold the rule of law and protect the process of justice, especially when it comes to determining whether telecommunications firms unlawfully allowed the government to spy on American citizens.
- Josh Zaharoff
...
Senate is now debating the FISA bill. On January 22, Common Cause did a letter with other groups to Senator Reid opposing immunity for telecommunications companies. Excerpt:
We now know that communication service providers turned over our private calls, emails and records to the government in the absence of a court order or other lawful requirement to do so. This violates both criminal and civil laws. Currently, citizens and consumers are trying to advance their rights in court, some seeking damages, and some seeking a simple declaration that the activity was illegal and a court order stopping it from happening in the future.
Killing all the pending cases will have two effects. First, it deprives consumers the opportunity to assert their own privacy rights before a neutral arbiter, which had been statutorily guaranteed since 1978. The Foreign Intelligence Surveillance Act provides a civil cause of actions so that Americans can enforce their rights when the communications companies and the government infringe on them. Robbing them of this opportunity through legislation not only frustrates the pending cases, but undercuts the accountability structure in the statute, which will only encourage law breaking in the future.
Second, it serves to bury government misconduct. Granting retroactive immunity shields not only the telecommunications industry, but the government actors that induced them to break the law in the first place. Despite numerous subpoenas, Congress has been completely frustrated in its attempts to discover what the Administration has done with our private information. These cases may be the last chance for citizens to actually determine who ordered the interception of their phone calls and how those intercepted communications have been used against them.
Some welcome news: the top Democrat and Republican Senators on the Judiciary Committee are cooling to the idea of telecom amnesty.
Committee Chairman Patrick J. Leahy (D-Vt.) and the ranking Republican, Sen. Arlen Specter (Pa.), had said that before even considering such a proposal, they would need to see the legal documents underpinning the program, which began after Sept. 11, 2001, and were put under court oversight in January.
On Tuesday, the committee was given access to some of the documents. But Leahy said yesterday that he had a "grave concern" about blanket immunity, saying that "it seems to grant . . . amnesty for telecommunications carriers for warrantless surveillance activities."
This should absolutely not go through. Granting blanket immunity to the telecoms for permitting warrantless wiretapping by the Bush administration would be doubly tragic: (1) it simply lets the telecoms off the hook for illegal activity, without any due process, a result that can only be seen as an affront to the law and to justice, and (2) it would eliminate the greatest point of leverage in investigating the extent, nature, and legality of the government's domestic spying program. If the telecoms are preemptively off the hook, they have little to fear by blocking investigations into their actions and, by extension, those of the power-hungry executive branch.
We're not out of the woods yet, though. Leahy and Specter are hesitating, but they're not drawing the line in the sand, though Sen. Chris Dodd did that last week. Here's more from the two ranking Senators.
This is getting a bit scary. According to an AP story today, the White House is blocking telecom companies from cooperating with Congress to determine whether they permitted unlawful spying on American citizens by the intelligence agencies of the U.S. government.
Three telecommunications companies have declined to tell Congress whether they gave U.S. intelligence agencies access to Americans' phone and computer records without court orders, citing White House objections and national security.
Director of National Intelligence Mike McConnell "formally invoked the state secrets privilege to prevent AT&T from either confirming or denying" any details about intelligence programs, AT&T general counsel Wayne Watts wrote in a letter to the House Energy and Commerce Committee.
Qwest and Verizon also declined to answer, saying the federal government has prohibited them from providing information, discussing or referring to any classified intelligence activities.
Simultaneously, the Bush administration pushes Congress to grant telecom companies
retroactive immunity from legal action for complying with the spying requests.
The Bush administration, urged by the telecommunication industry, is pushing hard for Congress to include immunity for past actions in any package to protect them from a series of civil suits.
Without the records, "to give immunity at this point in time would be a blind immunity," the House majority leader, Steny D. Hoyer, Democrat of Maryland, told reporters.
Essentially the White House insists that Congress give telecom companies retroactive immunity but is preventing Congress from finding out what those companies did, i.e. why they need to be immune. If this seems circular and dangerous to you, you're right on target.
They're invoking the "state secrets" privilege to attempt this circuitous avoidance of any oversight by Congress and any possibility of accountability. This is not how an executive branch is meant to act in a system of checks and balances in a country governed by law and justice.
The FISA/wiretapping bill that is coming up for debate may include retroactive immunity for the telecom companies, at least in the Senate version, according to the AP story. As Hoyer said above, it's clear that it should not.
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