Here is the text of my latest letter to Senator Feinstein on FISA and telecom immunity. It appears that we have been corresponding for so long that I now have a pretty good record to go by to understand her position. To see where she was, and where she’s gone on this issue is not pretty.
Please note that I did take one last thing out of this letter before I faxed it, but I left it in for the readers here to understand just how I feel.
June 29, 2008
Senator Diane Feinstein
United States Senate
331 Hart Senate Office Building
Washington, DC 20510 Via Facsimile (202) 228-3954
Re: FISA Telecom Immunity
Dear Senator Feinstein:
For over two years, I have been writing to you about my outrage over the Bush administration’s warrantless wiretapping of American citizens. You have somehow found it possible, given your busy schedule selling out our civil rights, to respond to my communications from time to time, and I thank you for it. I would like to both review your positions on the issue, and respond to them, now that the Senate is considering a bill that would give the telecommunications companies that colluded with the administration immunity for their undisputed wrongdoing.
I first wrote to you about my concerns in early 2006. On April 12, 2006, you responded via email as follows:
I have carefully reviewed the Constitution and the laws relating to this domestic intelligence activity, along with the President’s statements and those of the Attorney General and other Administration officials. I believe that the electronic surveillance program was not conducted in accordance with U.S. law. The program, as described, violates the Foreign Intelligence Surveillance Act, which requires a court order for surveillance of Americans.
Congress has updated FISA many times since 9/11 in order to provide our nation with all the necessary tools to fight terrorism. The Administration has never asked for the authority to conduct this program.
I believe the Administration also violated the National Security Act, which requires all members of the Intelligence Committee to be fully and currently informed of all significant intelligence activities other than covert actions. I am a member of the Intelligence Committee, and yet I was not told about this program until it was made public.
On October 20, 2007, I again wrote to you, via facsimile, when it became clear that you had backed away from your original position, as set forth above, because you were “undecided” as to whether to grant immunity to those telecommunications companies that had done what the administration wanted, in spite of the manifest illegality of doing so. I laid out a timeline of what I considered relevant events concerning warrantless wiretapping. I believe that timeline is as trenchant now as it was then, and I will again impart it to you:
1) On October 13, 2007, The Washington Post reported that based on documents released from the trial of Joseph Nacchio, former CEO of Qwest Communications, that the government had enlisted the telecommunications companies’ assistance with its warrantless wiretapping program (the program) on February 27, 2001, fully six months prior to the attack on the World Trade Center (9/11);
2) While Quest refused, maintaining the program was illegal, other companies did participate;
3) At least one telecommunications company, Verizon, not only participated, but also demanded and received payment of $1,000 each time it provided information pursuant to the program;
4) Verizon was paid for its participation over 700 times;
5) The program, and telecommunications companies’ illegal acts in support of it, failed to prevent 9/11;
6) According to fully corroborated testimony by James Comey before the Senate Judiciary Committee (upon which you sit), on March 11, 2004, although it had previously done so, the Department of Justice (DOJ) refused to affirm the legality of the program, but the President allowed the program to continue, despite DOJ’s refusal;
7) The President, on April 20, 2004, publicly denied such warrantless wiretapping was taking place;
8) In December 2005, the existence of the program was disclosed by The New York Times;
9) In response to the disclosure, the President admitted to the existence of the program, but claimed that it (a) began after 9/11, and (b) prevented an attack on the Library Tower in Los Angeles (which the President called the “Liberty Tower”);
10) Subsequent investigation revealed there was probably no imminent or even credible threat to the Library Tower;
11) In the ensuing months and years, the Administration has claimed that such warrantless wiretapping has been conducted very rarely, and only in extreme circumstances;
12) Subsequent investigation by the FBI’s Inspector General revealed that such a claim is patently false; the FBI has abused its ability to issue National Security Letters and obtain private communications without warrants on hundreds of occasions, and many if not most of those letters were issued in connection with investigations wholly unrelated to terrorism;
13) On August 3, 2007, 60 Senators, including you, voted for the Protect America Act (PAA), which gives the Administration increased ability to engage in warrantless wiretapping;
14) After the PAA became law, several members of Congress indicated the Administration had warned them of an imminent threat of a terrorist attack upon Congress, which bore upon their votes;
15) Subsequent investigation reveals there was no such imminent threat;
16) In the ensuing weeks since the passage of the PAA, the President has claimed that the members of the “Gang of Eight” in Congress had been fully briefed on the warrantless wiretapping program;
17) At least three members of the “Gang of Eight” have indicated that they were not so briefed;
18) The President continues to claim that the warrantless wiretapping program was undertaken in response to 9/11.
Your response from January 22, 2008, via email, was remarkable, not only for the time it took to reach me (a mere six months), but for the amazing turnaround in your position on the matter:
I introduced an amendment on the Senate floor that would limit this grant of immunity. Under my amendment, cases against the telecommunications companies would go to the FISA Court for judicial review. The Court would only provide immunity if it finds that the alleged assistance was not provided, that assistance met legal requirements, or that a company had a good faith, reasonable belief that assistance was legal.
I believe that this approach strikes the correct balance: it maintains court review and a judicial determination of whether companies provided assistance that they should have known violated the law.
I have also filed an amendment to restore FISA’s exclusivity, to ensure that no surveillance program can proceed outside the law in the way that the Terrorist Surveillance Program did for more than five years.
After reading your response, I responded the next day, with a facsimile that repeated the timeline, and included an additional point:
19) On January 10, 2008, it became publicly known that telecommunications companies had cut off FBI wiretaps because the bills had not been paid quickly enough to suit the companies.
I then received a letter via U.S. Mail that appeared to me to be a word-for-word repeat of your email. I am unsure whether you responded to my second facsimile at all, but suffice it to say that I was then clear about your position: you favored your judicial review that would grant immunity to telecommunications companies for a “good faith” belief in the legality something that they knew was illegal for over 30 years.
And so now the Senate is on the verge of voting on a bill that would go so much further than your pathetic “balanced” approach, in that the question of illegality of the wiretapping would never enter into the judicial review at all; rather, the review would be limited to deciding whether the companies were told they would somehow be protected by the Administration for breaking the law, and if they were, they become immune.
One has to wonder how we could have fallen so far into this Alice in Wonderland rabbit hole where “they told me I could” becomes the justification for excusing unlawful conduct. I think it is rather clear than when an important decision maker in the process moves from “I believe that the electronic surveillance program was not conducted in accordance with U.S. law” to “I introduced an amendment on the Senate floor that would limit this grant of immunity” that the responsibility lies, to a significant degree, with that decision maker, namely you.
From a negotiation standpoint, what you did makes no sense at all. Your amendment was a virtual capitulation from the beginning of the process that already gave the Administration more than it should have ever expected. There is no precedent in American law that would give intentional actors retroactive civil immunity for their acts, until you made such a notion possible. So, when Representative Hoyer began the negotiations that led to this bill, his side had already conceded a point that should not have been part of the calculus at all.
Further, I see no reason at all why the right of the American people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, was ever a negotiable point in the first place. That such a notion would have occurred to you makes me doubt your commitment to the Constitution and the People of the State of California, whom, I would like to remind you, you were elected to serve. We value our personal rights, as set forth in the very first provision of our State’s constitution:
All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.
Finally, any notion that these companies acted in anything that would approach “good faith” is completely undermined by their eagerness to shut off the wiretaps for slow payment (and there has never been any suggestion that the government would not pay eventually) even if these taps were of great importance to ongoing investigations. The companies were not concerned with any notions of patriotism; they were only in it for the money. For you or anyone to maintain that telecom immunity must be passed in order to keep us from “being attacked by terrorists,” is simply an insult. As I noted above, the illegal program was instituted before September 11, 2001, and it did not protect us then. This was an illegal, ineffective program that has produced nothing good in the short term, and promises to produce nothing but bad for our civil liberties in the long term.
Fortunately for the People of California, we have at least one Senator who still respects us, the things that make us strong, and our Constitution. She and a dedicated group of her colleagues have managed to put the brakes on what has felt like a runaway train that would destroy our civil liberties. With what now seems like the luxury of time (a scant two weeks), perhaps you can reflect upon the fiasco that that you would create by supporting the FISA bill, and finally come to understand that it does no good and much harm.
Moreover, even if you were to decide that ultimately this compromise is somehow the right thing to do, there is simply no need to do it hastily. We still do not know exactly what the telecommunications companies did, upon whom it was done, and we have no idea whether it produced anything at all that would make anyone safer. I feel that as to the last point, it did not, or else this Administration, which has little or no regard for the protection of state secrets, except when it feels such secrecy is politically advantageous, would have already disclosed it publicly.
I know that there is a political calculation going on here, but I would like to suggest to you that what appears to be the conventional wisdom on national security is no longer reflective of how the American people (and certainly the people of California) truly feel. We are not ready to cower at the first sign of a threat on our soil, and we are ready to respond not in fear, but with the strength born of our principles of justice and liberty.
There is no doubt that a significant cadre of politicians will try to make an issue out of the failure to pass this bad bill, but their efforts will not succeed as they may have if this were 2003. This Administration is the most unpopular in history, and the political difficulties that would inure to you and those on the side of liberty is not worth avoiding when compared to the massive unearned benefit the Administration and its supporters in Congress would gain from the bill’s passage.
Finally, if this is indeed such an important decision to make, there is no reason why it cannot be made by the next Congress, and a new President. There is every reason to believe that the next President will be someone who understands and appreciates the U.S. Constitution, rather than referring to it as a “g*******d piece of paper,” and I would much prefer that he make the final decision before signing any bill of this importance. Any investigation that is in place has not been, and will not be affected by not enacting the bill, and if there is a need to collect new information, the Administration can do what it always could have done: GET A WARRANT.
You should be grateful to Senators Boxer, Feingold, Dodd, and the others who have held back this dangerous juggernaut of a bill that would help only a privileged few and cause irreparable harm to this country, its people, and its reason for existence. They have given you what you, for no good reason, have declined to get for yourself: time to come to the right decision, and the only decision you can make with a good conscience (assuming you have one). NOTE: I omitted the italicized parenthetical from the final letter, as I decided it might be a little “over the top.”
I urge you to take a cue from your constituents and act from strength and not from fear. Please oppose any FISA legislation that includes telecommunications company immunity, and please support the Constitution and an American system of justice that does not reward those who break the law.
Very Truly Yours,
greggp
After trying for so long to make the good Senator understand my position, and in that time seeing her position move further away from mine, I am left with the distinct impression that Senator Feinstein really does not care what people like me (that would be Californians and Democrats) think. I sincerely hope that within the limited time we have before this legislation gets back on the Senate floor, I, and others like me, can make an impression on her.
