Senate Approves Telecom Immunity, Bush Signs Expanded Wiretap Powers into Law
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Related subjects: Congressional Oversight, J.E. Robertson, Net Neutrality, Press Freedom, Rights & Freedoms, Security & Surveillance, U.S. Law, Warrantless Wiretaps Comments Off
President George W. Bush yesterday signed an update to the Foreign Intelligence Surveillance Act (FISA) into law, after the Senate passed the controversial legislation, giving telecommunications firms retroactive immunity for cooperating with warrantless wiretapping conducted on American citizens, with no foundation in US law and in direct violation of the original FISA law, and the US Constitution. A federal court had ruled that the warrantless wiretaps violated the US Constitution, prompting a move by Pres. Bush and his allies in Congress to pass a new law correcting the legal problem.
Many critics have argued that the law cannot be made to permit wiretapping without judicial review, barring a complex Constitutional amendment (which would have to alter various previous amendments and original Constitutional provisions for the structure of US government). The new law provides for judicial review which permits a period of surveillance before seeking or obtaining judicial approval, where certain emergent circumstances justify the surveillance.
Sen. Barack Obama (D-IL), the presumptive Democratic nominee for the presidency, has received criticism from among his supporters for having vowed to support a filibuster of any legislation that included immunity for telecommunications firms that collaborated with the NSA in the then extralegal program. Obama did support an amendment that would have allowed lawsuits against the telecoms, but chose to support the legislation even without the amendment.
He has defended his current support for the legislation, which granted one of Pres. Bush’s most controversial and hard-fought demands of the Democratic Congress, saying he always supported enacting a law that would provide oversight for the program and protect individual Americans’ privacy, and that he chose to put those values above the need to resist protection for the telecoms.
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Sen. Russ Feingold (D-WI), “one of the Senate’s most outspoken defenders of civil liberties, casting the lone vote against the Patriot Act in 2001″, according to Mother Jones, had promised to filibuster the legislation so long as it contained immunity for the telecoms. He led “the charge against domestic spying and immunity for the telecom companies that provided customer data to the government under the Bush administration’s warrantless surveillance program”, but in the end was unable to sustain the support in his party needed to filibuster the legislation.
In a 69 to 28 vote, the Senate approved the measure, paving the way for a near immediate signing of the bill into law by Pres. Bush. Feingold told Mother Jones magazine that “the problem is that there’s this fear, that sort of grows over time, that somehow Democrats are gonna get hit over the head by claims that they’re soft on terrorism. And it always rears its head, especially when we’re heading into a recess period or an election period”.
Feingold also said he hopes that if Sen. Obama wins the presidency, he will seriously consider reviewing the law and calling for legislation to update it, adding that “we need legislation that has some sort of court review and mechanisms for control of this, because it’s completely lawless”. Sen. Hillary Clinton (D-NY) joined Senate Judiciary Committee chairman, Sen. Patrick Leahy (D-VT), in voting against the bill.
Leahy argues the bill “does not provide accountability for the six years of illegal, warrantless wiretapping initiated and approved by this administration.” He also said the legislation will turn federal courts into “the handmaidens to a coverup”. Leahy and other opponents argue the NSA program was fundamentally illegal and violated both the US Constitution and existing law. The warrentless wiretaps were ruled unconstitutional in 2006, prompting the push for new legislation.
There are concerns the law may also have a negative impact on media freedoms, as it allows the government to ask telecoms for cooperation in programs that may undermine the free flow of information or circumvent media protections. Chris Hedges, writing for the LA Times, warns:
If the sweeping surveillance law signed by President Bush on Thursday —giving the U.S. government nearly unchecked authority to eavesdrop on the phone calls and e-mails of innocent Americans— is allowed to stand, we will have eroded one of the most important bulwarks to a free press and an open society.
The new FISA Amendments Act nearly eviscerates oversight of government surveillance. It allows the Foreign Intelligence Surveillance Court to review only general procedures for spying rather than individual warrants. The court will not be told specifics about who will be wiretapped, which means the law provides woefully inadequate safeguards to protect innocent people whose communications are caught up in the government’s dragnet surveillance program.
The lack of judicial oversight remains a serious concern for civil libertarians and Constitutional scholars, who say the separation of powers is not a viable argument for removing judicial review from individual cases of surveillance. The Fourth Amendment to the US Constitution requires judicial review of every case of government intrusion into the private communications of American citizens, and courts have consistently upheld this Constitutional principle.
Hedges goes on to argue that:
This law will cripple the work of those of us who as reporters communicate regularly with people overseas, especially those in the Middle East. It will intimidate dissidents, human rights activists and courageous officials who seek to expose the lies of our government or governments allied with ours.
The First Amendment to the US Constitution expressly prohibits the Congress from enacting any law that would “abridge … the freedom of the press”.
Proponents argue the law does not interfere with innocent Americans’ privacy, and that its much assailed oversight provisions meet the criteria of the Fourth Amendment, and that it is a necessary tool for providing security in the “post-9/11 world”. Critics maintain the law is an anomaly in the tradition of the Alien and Sedition Acts passed under the 2nd president, John Adams, which were later repealed.
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