Sen. McCain & FISA
March 14th, 2008 at 07:07pm Geoff
Despite substantial bipartisan support, House Democrats have continued to drag their feet on legislation, already approved by the Senate, which will extend the American intelligence services’ ability to electronically monitor terrorist communications abroad. House Democrats passed an alternative version of that legislation today, but it was an alternative which inaugurates new privacy rights for foreign enemies of the United States and which preserves liability for telecommunication companies which have assisted the United States in that monitoring in good faith. The upshot is that now no legislation is in place for the President to sign and will not be for two more weeks at the earliest, which is when Congress will return from recess.
Until legislation is passed, American intelligence will be compelled to follow probable-cause standards in gathering foreign intelligence, standards which are inappropriate for that sphere. As Andrew McCarthy has written, “Having probable cause means you already know someone is dangerous…In gathering foreign intelligence, it is necessary to case a wide net of suspicion in order to detect which regimes, organizations, and operatives might be a threat to Americans.”
The House Democrats’ recalcitrance is unacceptable, compromising national security to placate their left-wing base which, as Matthew Continetti points out, “is adamant that the [telecoms]…not be granted immunity from litigation for cooperating with the government on foreign surveillance of terrorists during the years when FISA did not have authority over the program.”
Sen. McCain is now for all intents and purposes the leader of our party, and his credibility on issues of national security with the American people can be utilized. I would encourage him to address this issue in public and on Capitol Hill, calling out the minority of members of Congress—including Sen. Obama—on their lack of responsibility on this legislation. He would do a great service to his country and our security interests were he to assume a leadership role here. So much of our ability to identify and understand our enemies should not be shorn away at the behest of the over-zealous fringe on our country’s left.
Entry Filed under: Barack Obama, Campaign Issues, John McCain, Military, War on Terror
7 Comments
1. Diana Powe | March 14th, 2008 at 7:29 pm
Of course, the statements about a need for “probable-cause standards” is complete and utter nonsense. At the time that the Foreign Intelligence Surveillance Act of 1978 was being debated there were Republicans who argued then that it was a dangerous encroachment on civil liberties due to its creation of a court that met only in secret to hear information that came only from the government - the Foreign Intelligence Surveillance Court (FISC). As expected, the FISC has essentially been a rubber stamp process for the various administrations since its inception and there is no reason to believe that it does not operate the same way today.
The problem that has caused the President to rhetorically and dishonestly stamp his feet is the fact that the House has refused to grant blanket retroactive immunity to those telecoms, but not all, which chose to acquiesce to the government’s requests for them to violate the law. However, the bill passed today handily solves that problem, if the Administration were actually operating in good faith in this matter, by specifically allowing those telecoms that are being sued by the non-profit EFF and ACLU to present evidence that only the judge will be allowed to see. The propaganda and histrionics of the Administration and the Republican Party show that there allegiance is to power and not to protecting what America stands for.
2. Sarah | March 15th, 2008 at 9:58 am
Well…the vote on this will make the trial lawyers happy.
3. Diana Powe | March 15th, 2008 at 1:14 pm
Sarah,
The “happy trial lawyers” line is a crock. The lawsuits against the telecoms are being handled by the non-profit Electronic Frontier Foundation and the American Civil Liberties Union to expose the complicity of said telecoms in governmental law-breaking, not to recover damages. The likelihood of demonstrating monetary harm is slight. However, what the government greatly fears is exposure of their systematic violations of laws put in place to protect American citizens from being spied upon by their government.
As I pointed out in my eternally “awaiting moderation” comment before, the bill passed by the House neatly solves the objection by the telecoms that they can’t present secret evidence in their defense which was the only objection that amounted to anything.
4. Geoff | March 15th, 2008 at 1:24 pm
That’s who the Democrats are there to serve it seems.
5. Geoff | March 15th, 2008 at 5:58 pm
You’re off, Diana. There is every reason to believe that the FISC does not serve as a “rubber stamp,” for if it hadn’t been for a rogue judge ruling that all of a sudden the President and American intelligence cannot monitor overseas communications among foreigners not protected by American law without warrant issued upon probable cause this legislation would not be necessary. Federal case law has consistently upheld the president’s inherent authority to collect foreign intelligence without permission from a judge at home. More dispositive is the fact that FISA was never intended to cover foreign surveillance, only domestic. Far from being a rubber stamp, the FISC has taken upon itself the task of rewriting and creating new law.
And give me a break on the immunity issue. Immunity, retroactive or otherwise, is warranted because these telecom companies cooperated in good faith with the government under written assurance that the surveillance programs were lawful, which they were before the FISC judge took out his magic marker on United States law. As the Democratic Senate Intelligence Committee reported last year, “electronic communication service providers acted on a good faith belief that the President’s program, and their assistance was lawful.” Further, “without retroactive immunity [the] private sector might be unwilling to cooperate with lawful Government requests in the future without unnecessary court involvement and protracted litigation.” To the EFF, ACLU, and the left-wing of the Democratic Party, this doesn’t seem to be a big deal. Nor does the fact that without the legislation approved by the Senate will reduce the intelligence on foreign enemies of the United States we are able to collect by two-thirds, as pointed out by DNI Director Mike McConnell, who has served under Republican and Democratic administration alike.
6. Diana Powe | March 15th, 2008 at 7:47 pm
Geoff,
Would that be the “patriotic corporate citizens” that have cut off FBI-initiated FISA wiretaps because of the failure to pay bills on time? FISA doesn’t give service providers an option to cooperate or not. That’s one of the routine lies spread by the Administration. That’s why they’re called warrants. Warrants are orders issued by judges who make take action against those who fail to comply with those orders.
It’s perfectly easy to infer why the Administration doesn’t want any neutral review of the evidence that would be offered by the telecoms (in secret, under the just-passed House bill). They’re afraid of what the outcome could be for members of the Executive Branch. We know the President has already lied about the so-called Terrorist Surveillance Program so it’s reasonable to infer that the bulk of the iceberg will not be pretty.
7. Geoff | March 16th, 2008 at 12:05 pm
Diana, you’re not being genuine here. Prior to the issuance of the ruling by the FISC judge that warrants would be required for surveillance on communications of a foreign nature—between 9/11/2001 and 1/17/07, when the program was submitted to the FISC by the Bush Administration for approval—there was nothing to legally compel American telecom companies to cooperate with American intelligence’s surveillance of foreign terrorist communications. Their participation was voluntary and there was nothing to compel them by the way of judicial warrant to participate, otherwise there could not possibly be any grounds for liberal special interest groups to take them to court. Their participation may be compelled by judicial warrant now, but it was not for the period in question.
Further, you’re accusation of Bush Administration illegality and bad-faith is as obnoxious as it is tired and false. Read the Continetti article I quoted in my piece and you will see that far from acting in bad faith, President Bush has agreed to submit to court approval of surveillance of Americans abroad and to reporting requirements that will facilitate congressional oversight. Prior to the FISC ruling his administration had not been doing anything unprecedented for the Executive Branch in the sphere of foreign surveillance or espionage nor deemed illegitimate by relevant case law and precedent, despite your conjecture to the contrary.