It's Not Just About Immunity By Senator Russ Feingold Daily Kos January 17, 2008 When the Senate reconvenes next week, legislation to amend the Foreign Intelligence Surveillance Act (FISA) will be among the first issues we address. I am as determined as ever to use all procedural tools at my disposal, including a filibuster, to try to stop the FISA legislation if it doesn’t protect the privacy of law abiding Americans or if it includes immunity for telecom companies. I am also deeply grateful for the energy this community has put behind stopping this assault on the rights and liberties of Americans - it gave a huge boost to our successful effort in December to stop a bad FISA bill being rammed through the Senate. But while we had some temporary success last month, we face an uphill battle to fix the bill, particularly since the Democratic leadership still seems intent on bringing the flawed Intelligence Committee bill to the floor, rather than the better version approved by the Judiciary Committee. Much of the debate so far has focused on the issue of granting retroactive immunity to telecommunications companies that allegedly participated in the president’s illegal warrantless wiretapping program. But as this legislation moves forward, a critical part of our battle is going to be making people understand how dangerous and flawed the proposed FISA legislation is, even beyond the issue of immunity. Don’t get me wrong – the inclusion of any amnesty provision for telecom companies is a deal breaker for me. Senator Dodd and I will offer an amendment to strike retroactive immunity from the Intelligence Committee bill likely to be taken up by the Senate. Granting this kind of amnesty is totally unjustified since these companies already receive immunity if they follow the law. And it’s not as if these companies don’t have lawyers to tell them what’s legal and what’s not – especially when these laws have been on the books for 30 years. It is particularly outrageous that companies think they deserve immunity for allegedly participating in an illegal program when we found out last week from the DOJ Inspector General that telecom carriers are perfectly willing to shut off wiretaps – including a foreign intelligence wiretap – when the FBI doesn’t make its payments on time. But immunity is only one of the very serious problems with the Intelligence Committee FISA bill. We all agree that when foreign terrorists are communicating with each other overseas, the U.S. government shouldn’t need a warrant to listen in. But both the so-called Protect America Act (PAA) – the law we passed last year - and the Intelligence Committee bill go far beyond addressing that issue. They grant unprecedented powers to the executive branch to engage in widespread surveillance involving Americans, with virtually no judicial involvement. There is a better alternative in the Senate, and that is the Judiciary Committee bill. It is vastly preferable not only because it does not contain immunity, but also because it provides for meaningful, independent judicial oversight of the new wiretapping authorities, and more protections for the communications of Americans that get swept up in these broad new surveillance powers. Here are some of the serious problems with the Intelligence Committee bill: The PAA and the Intelligence Committee bill allow the government to acquire communications between foreigners and Americans inside the United States, without a court order and regardless of whether anyone involved in the communication is under any suspicion of wrongdoing. There is no requirement that the foreign targets of this surveillance be terrorists, spies or other types of criminals. The only requirements are that the foreigners are outside the country, and that the purpose is to obtain foreign intelligence information, a term that has an extremely broad definition. No court reviews these targets individually; only the executive branch decides who fits these criteria. The result is that many law-abiding Americans in the U.S. who communicate with completely innocent people overseas will be swept up in this new form of surveillance, with virtually no judicial involvement. Even the Administration’s illegal warrantless wiretapping program, as described when it was publicly confirmed in 2005, at least focused on particular suspected terrorists. Not even the Judiciary bill adequately addresses this very serious problem. The role of the FISA court is also at issue. The Intelligence Committee bill doesn’t give adequate authority to the FISA court to do what it is supposed to do - operate as an independent check on the executive branch. The bill passed by the Senate Judiciary Committee does give the court authority to assess the government’s compliance with its wiretapping procedures, to place limits on the use of information that was acquired through unlawful procedures, and to enforce its own orders – all of which are critical checks and balances. The Judiciary Committee bill also does a much better job than the Intelligence Committee bill or the Protect America Act of protecting Americans from widespread warrantless wiretapping. It ensures that if the government is wiretapping a foreigner overseas in order to collect the communications of the American with whom that foreign target is communicating – what is called reverse targeting – it has to get a court order on that American. The Judiciary bill also prohibits bulk collection – that is, the sweeping up of all communications between the United States and overseas, which is something the Director of National Intelligence has admitted is legal under the Protect America Act. So we have a lot of work to do on the Senate floor to fix the Intelligence Committee bill, not only by stripping the immunity provision, but also by adding back the protections from the Judiciary Committee bill and by addressing the broader problem of adequately protecting Americans’ privacy rights. Rather than acquiesce to another Bush administration power grab, the Senate should stand up for the rights of Americans and fix the bill. It won’t be easy. Already we’re seeing grossly misleading rhetoric, if not outright falsehoods, coming from the White House in another attempt to intimidate Congress into quickly passing bad legislation – the same old Administration play from the same old Administration playbook. We must not be intimidated by this fear-mongering. I will continue to do all I can to urge my colleagues to stand up to this administration and fix FISA so we can go after suspected terrorists without robbing law-abiding Americans of their rights. UPDATE I’ve had a chance to read many of your comments and I’d like to address some of the common themes I’m seeing. I will be reading the entire comment thread tonight. I don’t think it should come down to letting the PAA expire. There are some areas where FISA needs updating and these fixes can be done in a noncontroversial way that protects the rights of Americans at home. It's the overreaching we see in the Intel bill and the PAA that are the problem. Congress should be doing its job, which is to fix the PAA. I was very disappointed when the Majority Leader chose to bring up the Intel FISA bill as the base bill rather than the Judiciary Committee bill. I, along with thirteen of my colleagues including all Democratic Senators who were or still are running for President, urged Senator Reid to make the Judiciary Committee bill the base bill. Unfortunately, our request was denied and we will now be forced to offer our changes on the floor, where our amendments are subject to Republican filibusters. I am not totally opposed to the idea of a one-month extension to give Congress time to fix the problems with the law. The Senate made a mistake when it rammed legislation through last summer just as it did when it rammed the Patriot Act through after 9/11. If a short term extension is necessary to give us the time to make necessary changes, I'd consider it. It’s not very helpful to be talking about a long term extension of this law, we should be focused on trying to fix it now.