I am sitting here in my living room watching the FISA bill mark-up in the House Judiciary Committee. Jerry Nadler is rocking, and I had to take a moment to say thank you. From the hearing moments ago (this is me transcribing it, so it’s a rough transcript):
Thank you Mr. Chairman. I rise in opposition to the so-called substitute amendment from Mr. Forbes. I start with the affirmative point, the Democratic bill…the bill before us…gives the Administration everything it says it needs in terms of the actual tools to collect intelligence. It is striking that nearly every comment from the Minority today is directed at process and procedure, and not at the substance of the tools that we seek to make available to the Executive Branch to protect this country’s security. We have heard virtually no comments to suggest that the Administration would not receive every tool that it needs.
The [Forbes] amendment fails to address the excesses that were in the so-called “Protect America Act.” Most fundamentally, it fails to to protect the rights of Americans to be free of electronic surveillance by the Executive Branch when there is no supervision or awareness by either of the other branches of government.
Our history as a country has taught us that we cannot permit any executive to have unchecked, secret powers to invade the secret and private lives of American citizens. We face serious challenges and threats. But as stated by no less than Justice O’Connor…former Justice O’Connor…hardly a firebreathing radical, quote: “We have long since made clear, that a state of war is not a blank check for the President when it comes to the rights of the nation’s citizens.”
The substitute amendment is little more than the Administration’s request for unchecked powers, free of any meaningful scrutiny and oversight, and it must be denied. The gentleman from Texas says that the American people trust the intelligence professionals. Yes, they do. And so do I: I trust the intelligence professionals to do everything possible to gather the necessary intelligence.
We must trust the courts to protect our liberties. We do not trust the intelligence professionals to protect our liberties — that’s not their prime focus. We need both intelligence and liberty. We need both intelligence professionals gathering the intelligence, and courts safeguarding our liberties. That is why the Constitution establishes a system of checks and balances.
The Protect America Act forgot about the second half of that equation. They forgot about allowing the courts to protect our liberty. The substitute amendment continues that forgetfulness. The bill before us restores that American tradition — so that we can gather all the intelligence we need. Because we are indeed in a serious conflict and we must have that intelligence. But we must have court supervision to make sure that that intelligence is gathered in a manner consistent with the Constitution, with our laws, and with our liberties.
That is the essence of this bill, and the essence of the reason why this amendment must be rejected.
Let me add a word in response to the ranking member’s comments on retroactive immunity. When he said that when companies cooperate in protecting us, they should not be subjected to politically motivated lawsuits. Well, no one should be subject to politically motivated lawsuits. But it’s up to the courts to decide if a lawsuit is politically motivated, or frivolous, or meritorious. That’s why we have courts — that’s their job. It is not our job…as a Congress, to decide that a telecommunications company…uh…was patriotically cooperating in a lawful endeavor to help the war on terror or was engaged in a criminal conspiracy with a lawless administration to violate our liberties and violate our laws. That’s not our job — that’s the job of a court. And if some people believe that they broke the law, that the administration broke the law, that a telecommunications company broke the law, they should sue. And the court should throw them out of court if they don’t have the evidence to prove that the law was broken, and should grant them damages if if the law was broken. That’s why we have courts.
And those courts making those decisions are our only protection from any administration — not necessarily this one — from any executive having untrammelled power over our liberties and violating our liberties, and pressuring private companies to conspire with them to violate our liberties and our laws. Because courts offer us protection against that, we must let the process work itself through, let the courts decide whether these companies, or some of them, were acting patriotically, with nobility and legally, or if they were breaking the law. That’s the court’s function, we should not usurp the court’s function by granting retroactive immunity….
That puts the whole thing right out there for discussion in one fell swoop, doesn’t it? Protecting national security is important — but so is balancing that with a need for protecting Americans’ rights and the very Constitutional and rule of law principles that have served as a check to substantial power for as long as this nation has existed. How about we all try some common sense and understand that none of the answers on this are easy — but that the value here is in constantly asking the questions, not just handing over the henhouse to any fox that demands the keys.
Oh, and the Forbes Amendment failed, in case you were wondering — 14 for, 21 nays.
Rep. Nadler has been a consistent voice for the Constitution, for the rule of law and the protection of civil liberties on this issue and many, many others. He’s one of our Blue America candidates — you can show him some love (along with many of our other fine Blue America candidates) on our Blue America page. And he’s a prime example of how “more and better Democrats” can make a difference.
Thanks to Rep. Nadler for standing up on this today.
UPDATE: For those who weren’t able to watch this live, YouTubes are up of both Rep. Conyers and Rep. Nadler speaking about the Forbes Amendment referenced above. Thought folks would enjoy watching both of these videos.
UPDATE #2: The ACLU has some helpful information about the FISA legislation — and some problems that remain therein. Thought that everyone would appreciate the read.