The (Great?) FISA Compromise

After much rhetoric from members of Congress on both sides of the aisle, the legislative body is set to pass the FISA Amendments Act of 2008. President Bush and supporters have argued for quite some time that immunity needs to be granted to large telecommunications companies that actively spied on Americans in 2001-2005 without warrants. Shortly after the New York Times initially broke the story, Bush and Administration officials began to publicly push for Congress to grant these companies retroactive immunity so that they could not be sued for spying on Americans without warrants.

Advocates of civil liberties argued that the telecommunications companies should not be granted retroactive immunity for violating the Constitution and other protections granted by civil liberties legislation. President Bush argued that listening to conversations is a valuable tool in the so-called "War on Terror" and that NOT giving these companies immunity would discourage them from turning over records of phone calls in the future which would, in turn, hamper America's ability to protect its citizens.

This FISA Amendments Act of 2008 has been touted in the media as a "compromise" of an earlier Protect America Act. This is viewed as a compromise because immunity is not simply granted for all telecoms, but judges can examine whether or not the telecoms in question deserve immunity from specific lawsuits. Judges will look to see if the telecoms acted within the authorization of the President by providing a written directive which can be written by numerous government officials, stating their actions were legal. If the telecoms can provide this, then the lawsuits can be dismissed. As quoted from this article in The Nation:

"The bill, in short, is worse than granting absolute immunity: it is an effort to suborn the legitimacy of the federal courts by having a judge rubber-stamp the dismissal of cases against the telecoms without looking at the substance of what, in fact, was done. It reduces the separation of powers to a check-the-box exercise."

The bill also allows the government to create new surveillance programs that last a year apiece which focus on people who are "reasonably believed" to be outside the U.S. borders. It also provides that as long as the government doesn't intentionally target someone who is known to be in the United States, they can collect as much data as they would like. The process of data collection is also to be reviewed by judges however as stated in the previously referenced article in The Nation:

"Specifically, the role of judges is limited to ascertaining whether the Attorney General has completed a certification promising that either he has followed the law, or that he will follow the law soon. If the Attorney General cannot meet even this spectacularly low bar, the bill gives the government time to amend and to re-file the certificate."

It seems that we have gone backwards with our collective thought on this matter. Whereas the original FISA bill was enacted after the Watergate scandal in 1978 to protect American's privacy, as a country we now have retroactively given a pass to telecom companies that broke the law and illegally turned over recorded phone calls to our government. This was the type of action that the original law sought to protect us from. Now, upon learning of these actions by the telecom giants, instead of upholding the law, our elected leaders have legislatively gone back in time to pardon these companies in the name of national security. This is further example of the collective shift in thought which has continued to erode our civil liberties and rights in this so-called "Post 9/11 era". The Democratic Party continues to show its cowardice on such issues and continues to show no real alternative to the Republicans on some of the most important issues of our times. In a more drastic move, Barack Obama showed a reversal in language. Last year Obama said that he would support a filibuster of any bill that would give retroactive immunity to telecom companies, but this week he has stated the following:

"Given the legitimate threats we face, providing effective intelligence collection tools with appropriate safeguards is too important to delay. So I support the compromise, but do so with a firm pledge that as president, I will carefully monitor the program."

Obama now supports the so-called "compromise" and he also uses language similar to the current Administration when describing the telecoms actions as an important and effective intelligence collecting tool.

We certainly deserve better on this issue.