Security, Privacy & Government Accountability

To review this post on Newstrust, go here.

Chart tallying calls to members of the Senate Judiciary Committee regarding their position on telecom immunity.

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Changes to that law must be considered carefully and openly – not eviscerated in secret Administration interpretations or compromised through fear or intimidation

Patrick Leahy (D-VT), Senate Judiciary Committee Chairman

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As the Senate Judiciary Committee takes up its consideration of the currently proposed changes to the Foreign Intelligence Surveillance Act (FISA) laws, advocates for the First and Fourth Amendments to the U.S. Constitution have advocated that the Committee strip of provisions for telecom immunity and blanket warrants from S.2248, the Senate Intelligence Committee’s proposed replacement for the Protect America Act. Chris Dodd’s presidential campaign sites is maintaining a “citizen-generated whip count” which encourages calls to members of the Senate Judiciary Committee asking them to oppose telecom immunity. It also asks callers to report back and post the reactions they receive. The American Civil Liberties Union’s current letter writing campaign asks that the Senate require individual warrants.

Back on October 2, the Senate Judiciary Committee held a hearing to examine the implications of the PAA.“Preserving the Rule of Law in the Fight Against Terrorism” featured testimony from Committee Chairman Leahy and from Jack Goldsmith, former head of the Office of Special Council , who had, along with his boss John Ashcroft, resisted the Administration’s warrantless surveillance program. Goldman, now at Harvard Law School, based his testimony on his book, The Terror Presidency: Law and Judgment Inside the Bush Administration (W.W. Norton, 2007).

Yesterday’s hearing, “How to Protect Americans’ Security and Privacy and Preserve the Rule of Law and Government Accountability” looked at the S. 2248. (FDL’s Marcy Wheeler live blogged a transcript is here.) Representing the Administration’s position was Kenneth L. Wainstein (complete testimony), Assistant Attorney General in the Justice Department’s National Security Division. He decried FISA’s outdated provision that

substantially impeded the Intelligence Community’s ability to collect effectively the foreign intelligence information necessary to protect the Nation

and outlined a defense of telecom immunity and criticism for the increased reporting requirements and sunset clause of the current bill. Supporting his testimony was that of Patrick F. Philbin (complete testimony) , a partner in the DC law firm, Kirkland & Ellis, who had served as Deputy Attorney General in the Office of Special Counsel from 2001 to 2005.

Leahy (complete testimony) opened his statement by criticizing the PAA’s granting of “sweeping powers” for warrentless surveillance without meaningful privacy or civil liberty protection. After having received some of the documents requested from the administration, Leahy still expressed reservations about telecom immunity included in S.2248 :

The Congress should be careful not to provide an incentive for future unlawful corporate activity by giving the impression that if corporations violate the law and disregard the rights of Americans, they will be given an after-the-fact free pass. If Americans’ privacy is to mean anything, and if the rule of law is to be respected, that would be the wrong result.

A retroactive grant of immunity or preemption of state regulators does more than let the carriers off the hook. Immunity is designed to shield this Administration from any accountability for conducting surveillance outside the law. It could make it impossible for Americans whose privacy has been violated illegally to seek meaningful redress.

The lawsuits that would be dismissed as a result of such a grant of immunity are perhaps the only avenue that exists for an outside review of the government’s program and honest assessment of its legal arguments. That kind of assessment is critical if our government is to be held accountable. One of my chief inquiries before deciding to support any legislation on this subject is whether it will foster government accountability. Anyone who proposes letting the telecommunications carriers off the hook or preempting state authorities has a responsibility to propose a manner to test the legality of the government’s program and to determine whether it did harm to the rights of Americans.

… The FISA was enacted in the wake of earlier scandals, when the rights and privacy of Americans were trampled while no one was watching. We in the Senate, and on this Committee, have a solemn responsibility to hundreds of millions of our fellow citizens. Because the American people’s rights, freedom and privacy are easily lost; but once lost, they are difficult to win back.

Ranking member Arlen Spector (R-PA) said in his opening statement,

With respect to the request for retroactive release of liability, I have great reluctance. Part of that stems from the secrecy that the government has interposed. When we were seeking subpoenas last year for the telephone companies, we were thwarted by action of the vice president in contacting Republican members without notifying the chairman.

And as I see the situation, I think the telephone companies do have a strong, equitable case, but my inclination is that they ought to get indemnification; that the courts ought not to be closed.

I doubt very much the cases will be proved, but if plaintiffs can prove them, I think they ought to have their day in court. And it is costly, but that’s part of the cost of the war on terrorism.

Russ Feingold, (D-WI) (complete testimony) ,expressed his belief that the Intelligence Committee, on which he also sits, would have benefited from a public hearing such as the current one, with input

not just of the Administration, but also of outside experts who may have brought a different point of view to consideration of the legislation.

One “outside expert” testifying , Morton H. Halperin (complete testimony), Director of U.S. Advocacy, Open Society Institute and a member of the Board of Directors of the Constitution Project and its Liberty and Security Committee, posed two interesting questions. Regarding the first,

  • What electronic communications should the government be able to acquire using procedures different from those mandated for criminal investigations;

Halperin noted that there was an ongoing debate about whether the change was “necessary and constitutional” and proposed to “leave that discussion to others.” Instead, he chose to focus on his second question of

  • what procedures should be put in place so that all concerned groups can know clearly what the rules are and have confidence that the rules are being followed?

He outlined four major failures he found in the Intelligence Committee bill:

  • Section 701’s statement that “Nothing in the definition of electronic surveillance under section 101 (f) shall be construed to encompass surveillance that is targeted in accordance with this title at a person reasonably believed to be located outside the United States.”
  • the lack of required, advance court orders for surveillance ;
  • the lack of effective procedures and oversight to insure the law was not used to acquire the communications of a “U.S. person or a person in the United States”
  • lack of proclaiming that FISA procedures were the sole means to conduct electronic surveillance for intelligence purposes and that private companies must cooperate only if they receive a court order or a certification specifically authorized by this statute .
The other “outside expert, “Edward Black (complete testimony) , President and CEO of the Computer & Communications Industry Association, had this to say,

We should all want protection both from terrorists and from illegal spying, search and seizure by our own government. In crafting our efforts to combat terrorism, we should not forfeit our privacy or weaken our First or Fourth Amendment rights. As a nation, we should not countenance the sort of autocratic surveillance of ordinary citizens which we find so abhorrent in repressive foreign regimes.

According to the Dodd site, to date only Jon Kyl supports telecom immunity, but it appears john Cornyn (TX) is learning that way. The three in addition to Feingold on record as opposing immunity are Joe Biden (DE), Ted Kennedy MA), and Ben Cardin (MD). The ACLU reported on October 31,

American Civil Liberties Union, Move On.org, People For the American Way and bloggers from Open Left, Salon, Fire Dog Lake and others delivered petitions to Senate and House offices signed by over 250,000 Americans who oppose granting amnesty to the telecom companies that violated the Fourth Amendment and their privacy.

So, it remains to be seen whether, once again, Congress will give the Administration what it desires when the issue is fighting terrorism or whether it will stand up for the Constitution. Things look more hopeful than they did last week, I have to remember that in December 2005, that Republican Senators’ dismay with NSA revelations made me wonder whether we had reached a tipping point with regard to renewal of the Patriot Act.

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