FEINGOLD,
DODD CALL ON CONGRESSIONAL LEADERS TO STAND STRONG ON FISA
Letter to Congressional Leaders Working on FISA Update Asks to Include
Provisions Protecting Americans’ Privacy, Not Grant Retroactive
Immunity
June 10, 2008
Washington, D.C.
– U.S. Senators Russ Feingold (D-WI) and Chris Dodd (D-CT) are
urging Congressional Democratic leaders working to finalize the FISA
Amendments Act to include provisions to protect the privacy of law-abiding
Americans and not to grant retroactive immunity to companies that allegedly
cooperated in the president’s illegal warrantless wiretapping
program. Feingold and Dodd, who led the fight in the Senate against
the immunity provision and other provisions containing overbroad, unchecked
powers for the executive branch, wrote the following letter amidst reports
that negotiations on FISA legislation may be nearing completion in the
House.
http://feingold.senate.gov/pdf/ltr_fisa_061008.pdf
The Honorable Harry Reid
Majority Leader
S-211, U.S. Capitol
Washington, DC 20510
The Honorable Nancy Pelosi
Speaker of the House of Representatives
H-232, U.S. Capitol
Washington, DC 20515
The Honorable Steny Hoyer
Majority Leader
H-107, U.S. Capitol
Washington, DC 20515
The Honorable Patrick J.
Leahy
Chairman
Committee on the Judiciary
224 Dirksen Senate Office Building
Washington, DC 20510
The Honorable John Conyers
Chairman
Committee on the Judiciary
2138 Rayburn House Office Building
Washington, DC 20515
The Honorable John D. Rockefeller
IV
Chairman
Senate Select Committee on Intelligence
211 Hart Senate Office Building
Washington, DC 20510
The Honorable Sylvester Reyes
Chairman
House Permanent Select Committee on Intelligence
H-405, U.S. Capitol
Washington, DC 20515
June 10, 2008
Dear Majority Leader Reid,
Speaker Pelosi, Majority Leader Hoyer, Chairman Leahy, Chairman Conyers,
Chairman Rockefeller and Chairman Reyes,
As you work to resolve differences
between the House and Senate versions of the FISA Amendments Act of
2008, we urge you to include key protections to safeguard the privacy
of law-abiding Americans, and not to include provisions that would grant
retroactive immunity to companies that allegedly cooperated in the President’s
illegal warrantless wiretapping program.
With respect to immunity,
we are particularly concerned about a proposal recently made by Senator
Bond, and want to make clear that his proposal is just as unacceptable
as the immunity provision in the Senate bill, which we vigorously opposed.
As we understand it, the proposal would authorize secret proceedings
in the Foreign Intelligence Surveillance Court to evaluate the companies’
immunity claims, but the court’s role would be limited to evaluating
precisely the same question laid out in the Senate bill: whether a company
received “a written request or directive from the Attorney General
or the head of an element of the intelligence community … indicating
that the activity was authorized by the President and determined to
be lawful.”
Information declassified
in the committee report of the Senate Select Committee on Intelligence
on the FISA Amendments Act, S. 2248, confirms that the companies received
exactly these materials:
The Committee can say,
however, that beginning soon after September 11, 2001, the Executive
branch provided written requests or directives to U.S. electronic
communication service providers to obtain their assistance with communications
intelligence activities that had been authorized by the President.
… The letters were
provided to electronic communication service providers at regular
intervals. All of the letters stated that the activities had been
authorized by the President. All of the letters also stated that the
activities had been determined to be lawful by the Attorney General,
except for one letter that covered a period of less than sixty days.
That letter, which like all the others stated that the activities
had been authorized by the President, stated that the activities had
been determined to be lawful by the Counsel to the President.
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.
Thank you for your consideration
of these concerns. As this legislation moves forward, please know that
we will strongly oppose any legislation that includes a grant of unjustified
retroactive immunity and that does not adequately protect the privacy
of law-abiding Americans.
Sincerely,
Senator Russell D. Feingold
Christopher J. Dodd |
