The main talking point that, in particular, Dianne Feinstein and Nancy Pelosi have used to claim the necessity of the FISA capitulation is that under this law, the FISA Court will be the “exclusive means” for electronic surveillance.  The bamboozlement here is that FISA, a federal statute, never was the exclusive means before.  Now we have confirmation of this, from a federal judge in California no less.

A federal judge in California said Wednesday that the wiretapping law established by Congress was the “exclusive” means for the president to eavesdrop on Americans, and he rejected the government’s claim that the president’s constitutional authority as commander in chief trumped that law.

The judge, Vaughn R. Walker, the chief judge for the Northern District of California, made his findings in a ruling on a lawsuit brought by an Oregon charity. The group says it has evidence of an illegal wiretap used against it by the National Security Agency under the secret surveillance program established by President Bush after the terrorist attacks of Sept. 11, 2001 […]

But Judge Walker, who was appointed to the bench by former President George Bush, rejected those central claims in his 56-page ruling. He said the rules for surveillance were clearly established by Congress in 1978 under the Foreign Intelligence Surveillance Act, which requires the government to get a warrant from a secret court.

“Congress appears clearly to have intended to – and did – establish the exclusive means for foreign intelligence activities to be conducted,” the judge wrote. “Whatever power the executive may otherwise have had in this regard, FISA limits the power of the executive branch to conduct such activities and it limits the executive branch’s authority to assert the state secrets privilege in response to challenges to the legality of its foreign intelligence surveillance activities.”

Idiots, idiots, idiots.  In the course of giving away massive new surveillance powers and immunity for lawbreakers, the so-called “chip” that they received in return was already in the law to begin with.  Remember that exclusivity was DiFi’s amendment, and Pelosi said it was “the most important” aspect of any new law.

(By the way, this lawsuit is against the federal government, not the telecoms, so it would continue regardless of the outcome of Tuesday’s vote.)

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.

I had the opportunity to speak with CA-04 candidate Charlie Brown about the awful FISA bill that wormed its way through the House on Friday.  Unlike Steny Hoyer and practically everyone else in the House, Brown has actually gathered intelligence in his career.  He served two rotations in Saudi Arabia, coordinating surveillance flights over the No Fly Zone in Iraq.  So he has an understanding of how intelligence is collected and what ought to be done when such collection results in information gleaned from Americans.

As soon as I brought up the FISA bill, Brown sighed.  He said there was no way he could support the bill that was passed in the House, and he in particular cited the telecom immunity aspect for a variety of reasons.  “When I was gathering intelligence, if I ever picked up information outside what was authorized, I would have to flag the tape and immediately deliver it to my commanding officer for destruction,” he said.  “If I didn’t, I’d be sitting at Leavenworth.”  To treat the phone companies in a different way that he would have been personally treated seems unfathomable.  Brown’s main argument is that the world is a dangerous place and foreign surveillance within the law is sometimes warranted.  But the precedent of giving phone companies a free pass after the President supplies them with a piece of paper allowing them to break the law is quite dangerous.  “This is exactly what happened in 1973.  In the Vietnam War, Lyndon Johnson lied about the Gulf of Tonkin incident as a pretext to get us into that war, and the resolution passed was misused to escalate that conflict without the control of Congress.  in 1973 Congress reasserted itself and passed the War Powers Act to ensure that never again could the executive go to war without expressed approval of the legislative body.  And that was ignored for the next 35 years.”  Passing a FISA bill that is the “exclusive” means for electronic surveillance is part of the same deception.  Laws don’t need to be reasserted, they need to be enforced.

Brown was concerned that we seem to continue granting immunity to the wrong people, and not just the telecoms.  We bail out Bear Stearns but not individual homeowners.  We throw individual privates in jail for Abu Ghraib but never go up the chain of command.  “There is an accountability problem in Washington, DC,” as Brown put it.  And the Title I aspects of the bill, which allow warrantless spying of bulk targets under executive-proclaimed “exigent circumstances,” particularly with no need to throw out the intelligence gained that way if later found to to be illegal, was a concern as well.

If Charlie Brown can manage to run for office in what has traditionally been a heavily Republican district and understand that Constitutional principles and federal statutes must come first, then it’s just impossible to take Bush Dogs who voted for FISA out of fear seriously.  “Conservative Republicans should never vote for this kind of bill… they ought to be skeptical of government power and protective of civil liberties.”

It’s important that as we go forward we support those candidates who understand these issues, who will not be swayed by what a lobbyist or a leadership PAC will suggest, but who have the experience and strength to vote based on their own principles.  There’s no question in my mind that Charlie Brown is that kind of candidate.

We’re seeing a real separation of those on the side of justice and those on the side of cover-ups in the FISA fallout.  On the side of justice, for example, is Patrick Leahy:

But after months of negotiations, the House today unveiled a new FISA bill that I cannot support. While I applaud the fact that this legislation includes some of the important surveillance protections we wrote into the Senate Judiciary Committee bill last year, it fails to hold the Bush-Cheney Administration accountable for its illegal wiretapping program.

I will oppose this new FISA bill when the Senate votes on it next week. We must do everything we can to protect Americans from the Bush-Cheney Administration’s erosion of our civil liberties and callous disregard for the rule of law — and this new FISA bill fails that test.

Of course, he was cut out of the decision-making on this “deal.”

On the side of cover-ups is Nancy Pelosi (over):

Tomorrow, we will be taking up the FISA bill.  As you probably know, the bill has been filed.  It is a balanced bill.  I could argue it either way, not being a lawyer, but nonetheless, I could argue it either way.  But I have to say this about it: it’s an improvement over the Senate bill and I say that as a strong statement.  The Senate bill is unacceptable.  Totally unacceptable.  This bill improves upon the Senate bill.  

But you probably know that.  What you may not know is that it’s improvement over the original FISA bill as well.  So it makes progress in the right direction.  But these bills depend on the commitment to the Constitution of the President of the United States and of his Justice Department.  So while some may have some complaints about this, that, or the other about the bill, it is about the enforcement, it is about the implementation of the law where our constitutional rights are protected.  

But I’m pleased that in Title I, there is enhancement over the existing FISA law.  Reaffirmation, I guess that’s the word I’d looking for.  A reaffirmation that FISA and Title III of the Criminal Code are the authorities under which Americans can be collected upon.  It makes an improvement over current law and the Senate bill in terms of how you can collect on Americans overseas.  

It’s an improvement over the Senate bill in terms of – the Senate wanted to say, “Okay, we will agree to exclusivity,” which is, in my view, the biggest issue in the bill, that the law is the exclusive authority and not the whim of the President of the United States.  They said, “We will agree to exclusivity, but only a narrow collection of things will fall that that category.  Under the rest, the President has inherent authority under the Constitution.”   That’s out.  That’s out, thank heavens.  

And it is again in Title II, an improvement over the Senate bill in that it empowers the District Court, not the FISA Court, to look into issues that relate to immunity.  It has a strong language in terms of an Inspector General to investigate how the law has been used, is being used, will be used.  

So that will be legislation that we take up tomorrow.  We will have a lively debate I’m sure within our caucus on this subject and in the Congress.  It has bipartisan support.

She’s out of her mind.  She says that the problem was with implementation of the bill, yet the bill lets the White House off the hook for 7 years’ worth of illegal implementation of warrantless spying.  She won’t say that the District Court will assuredly immunize the telecoms because they are empowered only to see if the President gave them a piece of paper which said “this is legal.”  She thinks exclusivity is the most important part because that’s what Feinstein told her, but if the President can hand over a piece of paper and make the illegal suddenly legal, there’s nothing exclusive about FISA.

Before Pelosi became the Minority Leader in 2003 she was the ranking member of the Intelligence Committee.  She was briefed on these activities and knew at least the colors of what was taking place, if not the details.  She’s protecting her capo Steny Hoyer and protecting herself.  This is what Nancy’s allowing to go forward:

Reports of the newest FISA compromise indicate that, on telecom immunity, a federal court would be compelled to grant the telecoms immunity if there was substantial evidence that the Bush administration assured them that the warrantless surveillance program was legal. Doesn’t that actually endorse and extend to private actors the Nixonian view that if the president says it’s legal, it’s legal, regardless of what the law says and the Constitution says? Wouldn’t that set an awful precedent that an administration could get private actors to do whatever they wanted including breaking the law?

Despite authorizing a monarchy today, Pelosi managed to swear in Rep. Donna Edwards, a real progressive that tossed out her telecom-money-besotted chum Al Wynn, and actually used the words “Do you solemnly swear to support and defend the Constitution of the United States?”  

To which I would have said, “I don’t know, Madam Speaker.  Do you?”

…incidentally, we’re hearing that Sen. Obama’s staff is reviewing the FISA issue.  His staff has known what was about to happen for some time.  He can still end this tomorrow.  He can make sure this never sees the light of day in the Senate.  I know it would be terribly partisan to stand up for the rule of law and the Constitution, but it’s well within his capacity.  We’ll have that test of his conscience in the coming days.

Glenn Greenwald has it on good authority that my Representative, the Speaker of the United States House of Representatives, Nancy Pelosi, is planning on letting the Republicans pwn the Constitution: (h/t FDL)

As has been expected for a week now, the House Democratic leadership has prepared and is now currently circulating (while trying very hard to keep it confidential) their so-called "compromise" FISA bill. Their soon-to-be-unveiled bill, unsurprisingly, is designed to give the White House exactly what it has demanded, with only the smallest and most inconsequential changes.

As I said to DiFi earlier this morning, not cool at all.  The Democrats, save Chris Dodd and Russ Feingold, have been remarkably mute on this issue.  It is an issue of basic seperation of powers and how much authority the President and his/her administration has. So, here's the president playing the fear card (via tortdeform)—> (flip it for more)  

UPDATE (by Dave): TPM Muckraker has more and the details are quite different from what Greenwald reported.  The compromise bill does not have immunity but there’s still a possibility that they’ll ping-pong the bill back and forth from the House to the Senate to get it back in.  I’d have to look further, but the compromise bill does look to me to be “in the ballpark” of the RESTORE Act, which was a good bill.  We’re not out of the woods on this and all your reps. deserve a call.  But it’s not clear to me that this is a bad development… yet.

Basically, they are using this tired argument of they're going to get us, booogy, boogey, to force immunity through.  And the basic question is should corporations require the government to get a damn warrant or at least have some visible authority. Sure, Mr. Bush is all honest about who he's spying on (uh-huh), but what happens if those rascaly Democrats decide they want to spy on some of the right-wing fringe groups. I mean, next thing you now, they'll want to spy on some of the crazy anti-choice groups, and the deity would surely frown.  So, all this law is really requiring is doing what Qwest did (until they were threatened with a cut-off of their contracts) by demanding a warrant.

And, I'll leave more of this up to Robert and others who have followed this battle more closely, but telecomm immunity isn't about money. It's not the "greedy trial lawyers" who are suing the telecoms, but the EFF, and the ACLU. And by the way, Mr. Bush, trial lawyers protect the rights of American consumers from greedy corporations, that's a hell of a lot more than your administration ever did.

So, Madam Speaker, do not cave on telecom immunity. It's just too important.  Contact Speaker Pelosi (or your own Rep here) and tell them to have a spine on protecting the Constitution, you know the thing they have sworn to uphold.

Speaker Nancy Pelosi: Phone:  (202) 225-4965, Fax:  202-225-8259

After voting against stripping telecom amnesty from the bill, and seeing her amendments fail, Sen. Feinstein voted against the final bill.  Here’s her statement:

“I have decided to vote against the FISA Bill before the Senate. This is not an easy decision because I strongly believe that we need to modernize the law relating to the gathering of foreign intelligence, and I support many of the provisions in the Senate bill.

However, I believe this bill didn’t do enough to protect against the assertion of executive power. I have said on many occasions that without the additional language to strengthen and tighten the exclusivity already in FISA, I could not support final passage.

I offered an amendment on this very issue. My amendment, which would have made it clear that FISA is the excusive authority for wiretapping U.S. persons for foreign intelligence purposes, received well more than a majority of this body – 57 votes. But it did not receive the 60 votes required. Given this strong vote, I remain hopeful that similar language will be included in a FISA bill that goes to the President.

There should never be another warrantless surveillance program. And I continue to believe that there should be a strong statement in law making it crystal clear that FISA must be followed, period.

Unfortunately, the bill before the Senate did not include such language and simply didn’t go far enough in protecting against executive power. That’s why I voted against the Senate bill.”

This elides the immunity issue and foregrounds the exclusivity amendment.  But take it for what it’s worth.

There are now 54 other Congresscritters to focus on as the FISA bill head into a House-Senate conference.  The House’s RESTORE Act is actually a fairly decent, though imperfect, bill.  FDL has a petition you can sign to demand that it becomes the basis for what is sent to the President.  Call your representative and reaffirm that.

UPDATE: From the comments, seems like Feinstein pulled a Lieberman here, voting for cloture, against the final bill, and releasing a statement about the latter and not the former.  This, of course, makes me a chickensh*t.  And Art Torres a bold truth-teller.  And Dianne a patron saint.

(We’ve discussed Sen. Feinstein’s relationship with telco immunity quite a bit here, so here’s one more. – promoted by Brian Leubitz)

If you’re like me, you were upset about the thought that the Congress would give telecom companies immunity for participating in a warrantless wiretapping program set up by the Bush Administration.  If you’re from California like me, you were upset that your Senator, Diane Feinstein, would actually have considered supporting such a horrendous idea.  And, if you’re like me, you contacted Senator Feinstein about it.

It seems like it was a long time ago that I wrote to Senator Feinstein, and I frankly expected that she would blow off all of us.  But tonight, I received a response from her via email.

(This is cross-posted at Daily Kos.  People there suggested I post here.  That was a great idea.  I should come here more often.)

Here’s the text of the letter I faxed to her office (yes, I use the fax, because it is much more likely to get attention these days, it can’t easily be filtered like email, and while it exists on paper like a letter, it won’t languish for weeks in the Senate basement waiting to be electrocuted).

Now that I’m looking at the letter, it turns out it was a long time ago.

October 20, 2007

Senator Diane Feinstein

United States Senate

331 Hart Senate Office Building

Washington, DC 20510 Via Facsimile

Re: FISA Telecom Immunity

Dear Senator Feinstein:

It has come to my attention that you are undecided as to whether you will support changes to the Foreign Intelligence Surveillance Act (FISA) which will grant retroactive immunity to telecommunications companies for their having provided information to the government without warrants when such actions were clearly illegal.  I am writing to tell you that in light of what we do know about the program, the fact that you would approve of it at all is bad enough, and the possibility that you would give immunity those who participated in illegal conduct is simply perverse.

Let me summarize the situation as I understand it:

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.

To be even more succinct, the warrantless wiretapping was illegal and the telecoms knew it was illegal.  They participated anyway, and even chose to profit from their illegal participation.  And now, you are “undecided” as to whether to give them immunity for their illegal acts.

Let me be clear how I stand on this issue: you took an oath to support and defend the Constitution of the United States; you were not sent to Washington to be an accessory to Constitutional violations.  You swore you would well and faithfully discharge your official duties; you do not do so by rewarding those who would violate the Constitution and FISA with immunity for their illegal conduct.

“Leadership” to me, means you must act with courage and the determination to do what is right.  If the President wishes to pardon the telecom companies for their criminal conduct, he may try to do so, and he will show us all what a shockingly poor excuse for a leader he is.  However, he cannot give the telecom companies immunity from civil liability by himself; he would require accomplices in the House and Senate.  If you give the telecoms that immunity, you are the President’s accomplice, and as far as I am concerned, you will be just as culpable for criminal conduct that destroys our liberty as the President and those companies.

The thought that my United States Senator, who comes from a state which explicitly guarantees its citizens a constitutional right of privacy, would even have to think about whether to give immunity to those who would violate that right, expect to be paid for the privilege, and further expect to suffer no consequence whatsoever, makes me feel physically ill.  Should she actually do so, my sickness will quickly turn into disgust and outrage.

I have had my differences with your positions on issues in the past, but I have largely supported you, and I admire your determination to get to the bottom of the U.S. Attorney scandal (even though I am suspicious of your motivation for doing so).  My support, thin as it is, will evaporate entirely should you support telecom immunity.  Indeed, I will not be indifferent to what I would consider to be the most important issue that you have to deal with in the Senate.  If you cave to the Administration and the telecom industry, you will demonstrate to me you are devoid of the leadership qualities I consider necessary for you to be my Senator, and I will actively seek an alternative.

I hope that you will receive this letter in the spirit in which it is offered.  This issue is simply a “deal breaker” for me.  I urge you, in the strongest terms possible, to oppose immunity for the telecommunications companies who have participated in the warrantless wiretapping program.

Very Truly Yours,

greggp

Here’s her response (and after only THREE MONTHS).

Thank you for writing regarding the Bush Administration’s request for legislation that would provide immunity for telecommunications companies that are alleged to have provided assistance to the National Security Agency after September 11, 2001. I appreciate your thoughts on this topic, and welcome the opportunity to respond.

The legislation to amend the Foreign Intelligence Surveillance Act of 1978 (FISA) was debated in the Senate on December 17, 2007, but further action is postponed until January. That legislation, which was written by the Senate Intelligence Committee and approved by a vote of 13-2, would provide immunity for such companies if they were specifically requested or directed to provide assistance to the government.

The Intelligence Committee’s report on the bill includes declassified text stating that the Executive branch provided letters to electronic communication service providers at regular intervals. These letters all directed or requested assistance and noted that the assistance was authorized by the President and was legal. The Committee’s report can be found at http://intelligence.senate.gov…

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.

Rest assured that I will make every effort to ensure that new FISA legislation will protect the privacy rights of all Americans without restricting the intelligence community’s ability to protect us from attack.

Again, thank you for writing. I hope that you will continue to write on matters of importance to you. Best regards.

Sincerely yours,

Dianne Feinstein

      United States Senator

So is she that clueless that she somehow thinks that I, or anyone else will be satisfied that she has introduced an amendment to LIMIT immunity?  Did I not make myself clear?

Is there someone in California who wrote her a letter that said, “Dear Senator Feinstein, I think it would be great if you can give the telecommunications companies immunity, as long as you limit it”?  If there is, would that person please send me his or her address so I can give that person a dope slap?

crickets chirping

I didn’t think so.  This was all Senator Feinstein’s idiotic idea.  I think she really is that clueless.

Perhaps I just didn’t make myself clear enough in my letter, so I am going to try to get through to Senator Feinstein here.

NO IMMUNITY FOR TELECOMMUNICATIONS COMPANIES.  THEY KNEW WHAT THEY WERE DOING AND THEY KNEW IT WAS ILLEGAL.  THEY ALREADY HAVE IMMUNITY IF THEY COOPERATE WITH A LAWFUL COURT ORDER, AND THEY HAVE BEEN SO PROTECTED FOR 35 YEARS.  NO IMMUNITY! NO IMMUNITY! And, in case she isn’t sure, NO IMMUNITY!

I guess I will just send her the letter again, and again, and again, until she finally gets the message, if that’s possible.

Dodd was just on C-SPAN saying that the Senate is moving on to other issues beyond the FISA bill.  He just yielded the floor.  He said he was prepared to spend his full 30 hours speaking on the bill but “that will no longer be necessary.”  Sen. Reid just pulled the bill until January.

Reid was taking a lot of heat for this, and in the end perhaps felt that he couldn’t hold out any longer.  I’m guessing that he’ll push for allowing the full Senate to view those legal opinions on warrantless wiretapping as a condition for moving forward on the bill.

This is one of the first good days in a long time, but keep in mind that Reid may have simply reasoned that he wouldn’t have had time to finish all the other crap legislation he has coming down the pike, including giving a no-strings $70 billion in war funding to Bush.  Keep in mind that there are some good shifting of budget priorities in that omnibus bill, including slashing abstinence-only education funding, raising the Consumer Product Safety Commission budget by 28%, and saving a host of social services from the chopping block.  But I guess Reid made the determination that funding Bush’s war was more important than giving telecoms a free pass.

What have we learned?  Filibusters are powerful tools because one Senator can make life a living hell.  The progressive movement has enough allies and enough power to at least slow down this rush to a national surveillance state.  And now Dianne Feinstein’s cards are on the table.  Let’s be clear: she said to the full Senate today that she voted for telecom immunity in her various committees.  This is 100% counter to Art Torres’ contention that she helped “stop” immunity in the Judiciary Committee.  And we saw her “split the baby” compromise to keep any determination of telecom immunity secret.

UPDATE: I should mention that this is just a round, not the whole battle.  The bill will come back up in January, and there will be just as much pressure to immunize the telcos then.  So keep calling those Senators and tell them that you believe in the rule of law.

I just listened to Dianne Feinstein’s floor speech on the FISA bill being debated in the Senate today.  As you may know, Sen. Reid ignored 230 years of Senate custom and Chris Dodd’s hold to proceed on FISA legislation that included immunity for those telecom companies which illegally acted to help the government spy on Americans without a warrant.  Reid pushed through the motion to proceed, which was agreed to on a 76-10 vote (Feinstein voted to proceed; Boxer voted against it).  Sen. Dodd has vowed to hold a real-deal filibuster, taking the floor and refusing to yield except for questions.  Sens. Feingold and Kennedy have agreed to help him on this, and Sen. Boxer has yielded some of her time to Sen. Dodd so that he can take the floor.

This filibuster has not begun.  And so Sen. Feinstein took the floor.  She offered two amendments to the bill and said she would have a hard time voting for the bill without the amendments’ passage.  The first amendment concerned “exclusivity.”  She’s asking that the FISA court be the exclusive authority for gathering intelligence for electronic surveillance.  That’s fine.  Her claim is that if the President’s program was always under FISA , we wouldn’t have any of the problems we have now, because there would be judicial review.

Next, she said  “I voted for telecom immunity in the committee.  I am not inclined to vote for it without this amendment.”  She’s trying to say that immunity is actually not what it seems, and the companies are prevented from making their own defense, and that as long as they got a written statement from the Attorney General saying everything they did was OK, then we should let them off the hook.  She’s claiming that all of this happened after 9/11 when that’s not true (and Sen. Kennedy just pointed that out).  “This Administration, not the companies… made a flawed legal determination.”  Oh, these poor telecom officials.  They apparently don’t have a staff of lawyers.  “The amendment I will submit would put before the FISA court whether the telecom companies should receive immunity before the law.”  She wants an en banc panel of the FISA court to make the determination.  Once again, that would keep the entire case of domestic spying secret.  This would preserve judicial review.  Feinstein admits “I can’t say whether (the telecoms) met the iummunity provisions or not.”  So she voted for immunity when she didn’t know if the law allowed it.  Great.

This is the key point.  Feinstein’s default position is to trust the President.  As long as members of the executive branch write on a piece of paper that what the telecom companies did was legal, apparently all existing statutes should be waived.  There is a supercomputer on Folsom Street in San Francisco that is sweeping up practically every communication that goes through AT&T’s switcher.  Given all of this, Feinstein’s default is to immunize the telecoms.  When she gets pushback, she decides that a secret court should make the determination beyond public view whether or not the telecoms are liable for illegal spying.  A determination of this in public view is all that stands between this country and a surveillance state.

What do you think of the Senator’s remarks?