Senators Chris Dodd and Russ Feingold sent out a letter to Congressional leaders outlining why a compromise which violates the rule of law and which grants retroactive immunity to telecom companies is not only wrongheaded, it’s just plain wrong. And I thought this passage was particularly blunt:
…In other words, under the Bond proposal, the result of the FISA Court’s evaluation would be predetermined. Regardless of how much information it is permitted to review, what standard of review is employed, how open the proceedings are, and what role the plaintiffs’ lawyers are permitted to play, the FISA Court would be required to grant immunity. To agree to such a proposal would not represent a reasonable compromise.
As we have explained repeatedly in the past, existing law already immunizes telephone companies that respond in good faith to a government request, as long as that request meets certain clearly spelled-out statutory requirements. This carefully designed provision protects both the companies and the privacy of innocent Americans. It gives clear guidance to companies on what government requests it should comply with and what requests it should reject because the requirements of the law are not met. The courts should be permitted to apply this longstanding provision in the pending cases to determine whether the companies that allegedly participated in the program should be granted immunity.
We also urge you to correct the significant flaws in the FISA provisions of the Senate bill, some of which were addressed in the House version. The Senate bill authorizes widespread surveillance involving innocent Americans and does not provide adequate checks and balances to protect their rights. First, it permits the government to come up with its own procedures for deciding who is a target of surveillance, and provides no meaningful consequences if the FISA Court later determines the government’s procedures are not even reasonably designed to wiretap foreigners. Second, even if the government is wiretapping foreigners outside the U.S., those foreigners need not be terrorists, suspected of any wrongdoing, or even be of any specific intelligence interest. That means the government could legally collect all communications between Americans here at home and the rest of the world. Third, the Senate version of the bill failed to prohibit the practice of reverse targeting – namely, wiretapping a person overseas when what the government is really interested in is an American here at home with whom the foreigner is communicating. Fourth, the Senate version of the bill failed to include meaningful privacy protections for the Americans whose communications will be collected in vast new quantities. We strongly believe that these problems should be corrected as the legislation moves forward.
Now that is the way to do your job, Senators. Good on ya! Have to agree with Amanda at the ACLU’s Blog of Rights:
…Wouldn’t it have been nice, though, if as soon as Bond floated his non-compromise Hoyer called it what it was and said, "This doesn’t come anywhere close to protecting our constituents’ privacy and, by the way, this immunity clause i[s] complete crap." But he didn’t.
Let’s give Senators Dodd and Feingold a hand. Call your members of Congress today and tell them no telecom immunity, no violation of the Fourth Amendment — and no deal with the Bush Administration on this unless the rule of law is fully and completely upheld. Let’s get to work.
You can find contact information for your elected representatives at Stop The Spying, and also get numbers for Senators here and House members here. The ACLU has more information here, here and here. Howie has more. So does McJoan and Glenn. EFF does, too, and Marty has some great analysis on why the GOP’s fearmongering is a load of dung. An update in The Hill says they are "close to breaking the logjam" on FISA — so please make your calls or send FAXes today!
(YouTube of Russ Feingold via Matt Stoller at OpenLeft.)