FISA and Telecom Immunity Returns to the House

As most readers will already know, the Senate passed a deeply flawed version of the FISA bill on Tuesday, allowing not only warrantless wiretapping around the FISA court but also immunizing the Administration’s telecom company accomplices in their past advantures in spying on Americans. Caroline Fredrickson, the director of the ACLU’s Washington Legislative Office put it this way, "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.”

Now the House is forced to consider reconciling its version of the FISA law, which does not include telecom immunity or all of the broad intrusions on privacy incorporated in the Senate bill to the upper chamber's legislation. Attempts to extend the current law while discussions ensue have already been defeated, with Administration backing. The President, sounding like he’s channeling some other more popularly backed leader, is demanding that the House tow the line on FISA immediately (or the terrorists will have won).

To its credit, the House leadership has showed some guts in refusing to cave in on the telecom immunity issue. Rightly, Steny Hoyer accuses the President of fear mongering on the issue, in that the White House opposes any compromise or any extension of the current law to facilitate negotiation. It’s time to look to the House to back up its previous objections to immunizing companies for actions the Administration refuses even to recount to legislators.

The House now must protect its bill from Senate legislation that has, in Glenn Greenwald’s words, two simple purposes:

(1) to render retroactively legal the President's
illegal spying program by legalizing its crux:
warrantless eavesdropping on Americans, and

(2) to stifle forever the sole remaining avenue for
finding out what the Government did and obtaining
a judicial ruling as to its legality: namely, the
lawsuits brought against the co-conspiring
telecoms.

Remember, if the telecom companies did nothing illegal, there is no need for immunity. They only need immunity if they broke the law to allow the Administration access to Americans’ phone lines and e-mail. The point of this legislation is clear. It seeks to prevent any detailed accounting of what the Administration did through legal actions that might uncover the specifics of the program during its early days. This is information the President refuses to supply to Congress, even while insisting that legislators must retroactively allow him immunity to have done it. This all occurs only after journalists independently uncovered his secret program.

It’s stunning that the this President, as grossly incompetent as he has proven to be, has the Senate bound and gagged to do his bidding over legislation so difficult to justify that he will not supply the information to do so. His argument is, in essence, “I’m protecting you, so don’t ask how I’m doing it. Accept my word that if you don’t look the other way, our security will be compromised. I need secret access with virtually no oversight either before or after any spying, or people will die.”

This is the kind of request that Americans would ordinarily laugh off, but this President won’t even have a debate over it. He puts the telecom companies at risk by employing them as accomplices, then uses their lobbying power to ask legislators to cover up their involvement, knowing that their secrets are his secrets too, and knowing that their lobbying power is greater than his.

McJoan over at Daily Kos has compiled a list of the Blue Dog Democrats, about seven of whom she thinks would have to change their votes to support the House version in any reconciliation battle ahead. Read it there, along with contact information to call their offices.

(BTW- A Senate scorecard on telecom immunity includes one "no" from Obama, one "yes" from McCain, and one "absent" from Clinton, who opposes it but did not return to vote.)

See Memeorandum and Buck Naked Politics for more discussion on FISA.