This is a different diary for me. It's not link heavy, but rather is a written exchange between Rhode Island Democratic Senator Sheldon Whitehouse, who I proudly voted for, and myself regarding his February 12, 2008 vote and his July 9, 2008 vote on FISA. Rather than editorialize (I'll leave that up to you all) and rather than attempt to paraphrase Senator Whitehouse (I want to avoid miscommunicating his response to me), I will simply present the written, unedited exchange between his office and myself below the fold (in the spirit of my right to privacy, however, I have chosen to delete my actual name and my address). As I promised the senator, I said I would attempt to teach others what he has taught me about his FISA voting record. So, class, here's your lesson:
BOXERDAVE'S NAME & ADDRESS
July 15, 2008
Dear Senator Whitehouse,
I was perplexed when I learned that your February 12, 2008, vote on the FISA Amendments Act of 2007 (S. 2248) and your vote on the Foreign Intelligence Surveillance Act of 1978 (H.R. 6304) on July 9, 2008, mirrored that of one of the most conservative senators in the country--Kansas' Sam Brownback. Indeed, your votes were the same as many other dyed-in-the-wool followers of George W. Bush's policies (e.g., Senators Hatch, Chambliss, and DeMint). Truly, I understand the importance of casting one's vote based not on party allegiance, or on how a bloc of neo-conservative senators vote, but on the merits of the bill before the Senate. The issue of probable cause in searching through an individual's private life is of vital importance, I believe, to this nation domestically, and to me personally. This issue, I also believe, dictates in no small degree the level of international respect our nation will receive, which in turn, affects our ability to influence and become an effective international leader of democracy--a long-held position we lost as a result of the errors in judgment by President George W. Bush. Calling ourselves a democratic country, as we do, becomes a hard-sell here and abroad when erosions occur in fundamental democratic principles such as privacy rights and when the secrecy in our government's functioning increases. Like all Americans, I entrust both of my senators to safeguard my constitutionally guaranteed rights.
As one of your constituents, I write this letter to ask you to explain to me in as much detail as you can your reasoning for voting as you did on S. 2248 on February 12, 2008, and also on H.R. 6304 on July 9, 2008. Please explain to me the merits of these pieces of legislation as you saw them when you cast your votes. As a voter who attempts to become as knowledgeable as possible on issues important to me, I look forward to being educated by you about your understanding of the recently passed Foreign Intelligence Surveillance Act of 1978, and learning exactly why you cast your votes in February, and again last week, as so many staunch Bush supporters did. For my part, I will bear the responsibility of explaining what you will teach me about your FISA votes to others who, like me, found your votes puzzling.
Hoping you and your family had a most happy and reflective Fourth of July,
BOXERDAVE'S NAME & SIGNATURE
Here is Senator Whitehouse's response to my July 15, 2008, letter, which he sent to me today (July 22, 2008) via email:
Dear [BOXER DAVE'S NAME HERE]:
Thank you for contacting me about my vote on the FISA bill. I appreciate hearing from you.
The Bush Administration’s warrantless surveillance program was clearly illegal — and I opposed granting blanket retroactive immunity to any telecommunication companies that may have facilitated it. Not only did I support an amendment to strip the immunity provision, I supported a number of other efforts to change the provision. Indeed, I offered my own amendment that would have required the phone companies to prove, at a minimum, that they acted with a good faith, reasonable belief that compliance was lawful before they could be granted immunity, and if they were, the government would have been substituted as the proper defendant in the litigation. Unfortunately, this and other similar amendments failed.
I would note that, while I deeply objected on principle to the intrusion of Congress into judicial cases, as a life-long litigator I felt as a practical matter that the litigation against the telecommunications companies was unlikely to lead to liability, or get to the bottom of the Bush Administration’s misconduct, given the state secrets privilege limits on that litigation. In my view, the Inspector General reports we provide for are a more reliable vehicle for getting to the bottom of what the Bush Administration did.
I and other Democrats worked equally hard on other parts of the bill, and with considerable success. Between amendments passed in the Intelligence Committee, the Judiciary Committee, the Senate floor, and during negotiations between congressional Democrats and the Administration, Democrats had a significant impact on the bill. As a result, the bill includes important new protections for our civil liberties, which is why I ultimately decided to support the bill. Just by way of example, I helped negotiate a provision that, for the first time, requires by law that the government seek a warrant to conduct surveillance on Americans abroad. That means that military personnel, students, and businesspeople abroad will, for the first time, be protected by law from warrantless surveillance. The bill also requires the Justice Department, the Pentagon, and the Intelligence agencies to conduct an investigation into President Bush’s illegal spying program. This will provide an important measure of accountability for people who broke the law. Further, an amendment I proposed on the Senate floor, and got accepted, recognizes that the FISA court has all the inherent powers of an Article III court under the Constitution, giving it wide-ranging authority to enforce its orders and investigate to assure compliance by the executive branch. Finally, the bill reinforced the provision making FISA the exclusive mechanism for electronic surveillance activities to collect foreign intelligence, clamping down further on the executive branch.
While I disagree with the immunity provisions, there are many excellent and hard-fought new provisions in this bill. It takes a real step towards protecting our civil liberties. I have enclosed two recent speeches on FISA that I delivered on the Senate floor and that sum up my position on the bill. I very much appreciate and respect your views on this difficult issue. Thanks again for contacting me.
Sincerely,
Sheldon
Also, Senator Whitehouse attached six Congressional Record--Senate documents that while too long to put in a diary, I provide the section/paragraph numbers and the dates for each. They are:
S6205 June 26, 2008
S6206 June 26, 2008
S6207 June 26, 2008
S6408 July 8, 2008
S6409 July 8, 2008
S6410 July 8, 2008
The July 8, 2008, Congressional Record -- Senate sections/paragraphs can be found here.