This diary began as a response to a comment posted to a really great diary; entitled Barack-Iraq-Gate: Anatomy of a Media Smear by The Jed Report.
Let me begin by stating that I am not an attorney. I don't pretend to be an expert on the law. But I am an avid reader with an analytical mind and a detail oriented approach to problem solving.
There are three reasons why I'm posting this diary. The first is that it was simply becoming too long to be considered a comment. The second is that it pertains to a subject that I and many others are very interested in. Lastly, I'm posting it because I believe and hope it will add yet another perspective to the current political dialogue.
For the sake of honoring the right of privacy of the person to whom I was originally responding I will use a fictitious user name when referencing him or her.
IamLiberaltoo. I appreciate the tact and effort you put into your explanation. However, if you will permit me, I'd like to offer a rebuttal to your assertions.
First:
Excusing illegal behaviour by the executive and the phone companies does not help.
Let's look at the second part of your assertion first.
You assert that one consequence of the FISA Bill is that phone companies are being excused for illegal behavior.
The illegal behavior you are referring to, I assume, is the failure of telecom companies to uphold common laws and federal statutes that protect the right of individuals to the confidentiality of their information.
There are a number of legal arguments against your assertion. But since Sen. Russ Feingold is the most referenced source that most people involved in the current so-called netroots protest use, I think that its important to review what he's said about the issue of reverse immunity and why he feels it is unnecessary.
For starters, current law already provides immunity from lawsuits for companies that cooperate with the government’s request for assistance, as long as they receive either a court order or a certification from the Attorney General that no court order is needed and the request meets all statutory requirements. But if requests are not properly documented, FISA instructs the telephone companies to refuse the government’s request, and subjects them to liability if they instead decide to cooperate. This framework, which has been in place for 30 years, protects companies that act at the request of the government while also protecting the privacy of Americans’ communications.
Some supporters of retroactively expanding this already existing immunity provision argue that the telephone companies should not be penalized if they relied on a high-level government assurance that the requested assistance was lawful. Mr. President, as superficially appealing as that argument may sound, it utterly ignores the history of FISA.
You see IamLiberaltoo, the issue is not that the telecom companies were breaking the law by cooperating with government requests for the confidential information of their clients.
There is no dispute about whether the telecom companies broke the law by cooperating with requests by the Bush Administration for confidential information on its clients.
IamLiberaltoo. You may be aware that current and FISA statute provided that before the government could legally obtain otherwise confidential information from the telecoms, two and sometimes three things had to occur:
- The government had to serve the telecom with either a court order (warrant) or a written request for access accompanied by a certification from the AG that the request is lawful;
- The telecom had to make sure that the warrant or request had all the proper information and authorizations. If it did not, they were required to refuse access; if it did, they were required to permit access.
- If the government had not gotten a warrant ahead of time but used an AG certification instead in #1, then it had to go to the FISA court within a certain number of days to get a warrant issued after the fact.
Both Senators Feingold and Barack Obama agree that the problem with the FISA amendments is not that the telecom companies broke the law by non-compliance with federal statutes. In fact, the telecom companies participated at level two of the above procedures.
Again, there is substantial evidence that the telecom companies broke no laws by cooperating with the government's requests for confidential information on their clients.
On the first part of your argument, IamLiberaltoo, your assertions are accurate. Indeed the government overreached the limits of its power in its efforts to collect confidential information of individual citizens. In requesting information the Bush Administration ignored and abused existing laws and for that they should be held accountable.
Again, here is what Russ Feingold says on this issue:
But Mr. President, this immunity provision doesn’t just allow telephone companies off the hook for breaking the law. It also will make it that much harder to get to the core issue that I’ve been raising since December 2005, which is that the President ran an illegal program and should be held accountable. When these lawsuits are dismissed, we will be that much further away from an independent judicial review of this program.
Senators Feingold and Obama believe, as I do, that the 2008 Amendments to FISA contain significant improvements to the previous version.
"Mr. President, I don’t mean to suggest that this bill does not contain some improvements over the bill that the Senate passed early this year. Clearly it does, and I appreciate that. Certainly, it is a good thing that this bill includes language making clear, once and for all, that Congress considers FISA and the criminal wiretap laws to be the exclusive means by which electronic surveillance can be conducted in this country – a provision that Senator Feinstein fought so hard for. And it is a good thing that Congress is directing the relevant Inspectors General to do a comprehensive report on the President’s illegal wiretapping program – a report whose contents I hope will be made public to the greatest degree possible. And it is a good thing that the bill no longer redefines the critical FISA term "electronic surveillance," which could have led to a great deal of confusion and unintended consequences.
All of those provisions are positive developments, and I am glad that the ultimate product seemingly destined to become law contains these improvements." Russ Feingold
"But I also believe that the compromise bill is far better than the Protect America Act that I voted against last year. The exclusivity provision makes it clear to any president or telecommunications company that no law supersedes the authority of the FISA court. In a dangerous world, government must have the authority to collect the intelligence we need to protect the American people. But in a free society, that authority cannot be unlimited." Barack Obama
Here are the concerns that I and others including Sen. Russ Feingold and Barack Obama have regarding the 2008 Amendments to FISA.
"Given the choice between voting for an improved yet imperfect bill, and losing important surveillance tools, I've chosen to support the current compromise.
And Mr. President, we have other alternatives. We have options. We do not have to pass this law in the midst of a presidential election year, while George Bush remains President, in the worst possible political climate for constructive legislating in this area.
All supporters of Sen. Barack Obama's presidential candidacy believe in the right of dissent. We believe that the supporters of our candidate and of John McCain have the right to express their disagreements with their positions on the issues.
However, I and others like me, are mutually concerned that the current uproar over FISA, which I might add, involves many people who are actively engaging in promoting misinformation and some who are literally espousing anti-Obama rhetoric will dampen our chances of winning the 2008 Presidential election.
And before you respond with what so many others opposing this Bill have said, namely that; Barack Obama is happy with the protest because it is evidence of our democracy at work, please allow me to point out how he really feels and, for that matter, how anyone else would feel in this situation.
"... and whether politicians like to admit it or not, the constant vitriol can wear on the spirit."
Lastly, IamLiberaltoo, I am concerned that when the dissent reaches the point where it embarrasses our candidate, provides fodder for his political opponents to disparage his integrity and veracity, and diminishes his chances of winning the GE it crosses the proverbial line and endangers everything we have put our political and activist muscle into these past 18 months.