Sen. Hatch Demolishes FISA Myths and Mongering

By December 19, 2007Briefly Legal, Communications

Sen. Orrin Hatch (R-UT), the only Republican to serve on both the Judiciary and Intelligence committees, was superb on the Senate floor Monday. Hatch refuted the claims and outlandish rhetoric of those who would use legislation revising the Foreign Intelligence Surveillance Act to villify private-sector companies responding to requests to assist in monitoring of foreign terrorist activities.

In these remarks, Hatch explained the need for modernized law to deal with surveillance of foreign terrorists. Opponents of the Senate Intelligence Committee version of S. 2248 rarely mention these considerations:

On numerous occasions in the FISA debate, we have seen dramatic fear mongering. Many individuals, particularly on partisan blogs, are spreading misleading and malicious information in order to incite fear of alleged government activities.

This bill should not include text which panders to people who believe in imaginary government conspiracies.

There IS such a thing as irrational fear of government. Let’s not forget:

• Our government did not kill thousands of innocent Americans on September 11th.
• Our government did not kill hundreds of people in car bombings at US Embassies in Kenya and Tanzania.
• Our government did not kill 191 people in the Madrid Train Bombings.
• Our government did not kill 52 people in the London Train Bombings.
• Our government did not kill 202 people in suicide bombings in Bali, Indonesia.

And in these remarks, he demolished the allegations behind the lawsuits that target the telecom companies that assisted in the monitoring after the terrorist attacks of September 11, 2001.

Close inspection of the lawsuits against the telecoms reveals dubious claims. The plaintiffs have confused speculation for established facts. This is dangerous and the continuation of these lawsuits could lead to serious consequences for our national security.

It’s very simple – Congress should not condone oversight through litigation.

A quick scan of what plaintiffs seek in many of these cases should send a chill down our spine. They are not, as many are suggesting, simply saying: “You went along with the President’s Terrorist Surveillance Program, now give us money.” Rather, the lawsuits seize on the President’s brief comments about the existence of a limited program to go on a fishing expedition of NSA activities. But this is really worse than a fishing expedition; this is draining the Loch Ness to find a monster. Sometimes what you are looking for just doesn’t exist.

The lawsuits represent irrational fears of government conspiracy, and seek to expose classified information, regardless of who is harmed in the process.

Sen. Kit Bond (R-MO) and Sen. Jay Rockefeller (D-WV) have been forceful on this issue, but Sen. Hatch’s remarks are the single most cogent and persuasive arguments we’ve seen.

We trust all the Senators will read them before the Senate takes up the legislation again in January. Sen. Dodd?

Join the discussion 2 Comments

  • Dr Rick says:

    has become apparent that several telecommunication companies knowingly
    violated multiple federal laws at the behest of the White House; laws which
    were enacted 30 years ago when, in the wake of Watergate, the Church
    Commission uncovered massive invasions of American citizens’ privacy rights
    and decades-long abuses of surveillance powers by the Government.

    The law does not give corporations license to engage in criminal acts just
    because the President tells them to. And if these companies and their
    executives really didn’t know that what they were (and possibly still are)
    doing was illegal, then they don’t need retroactive immunity: FISA already
    provides immunity for those acting in good faith. But the telecoms aren’t
    asking for immunity for acts committed in good faith; AT & T already tried
    in court to make the argument that it didn’t know that its actions were

    Presiding U.S. District Judge Vaughn Walker (a federal judge
    appointed by the first President Bush) emphatically rejected that excuse,
    writing that:

    “AT&T’s alleged actions here violate the constitutional rights clearly
    established [by the U.S. Supreme Court]. . . AT&T cannot seriously contend
    that a reasonable entity in its position could have believed that the
    alleged domestic dragnet was legal.” – U.S. District Judge Vaughn Walker

    So now AT & T and other companies have asked Congress to pass an
    unprecedented special law granting them retroactive ‘amnesty.’ The bill
    under consideration would prohibit courts from ruling on whether these
    companies broke the law and force the dismissal of all court proceedings
    against them. We know of at least one company, Qwest, that refused these
    illegal government requests, a factor that adds weight when considering
    whether these companies were ‘just doing’ what the government requested.

    If those companies seeking immunity chose to break the law, then they should
    face the same justice system that you and I would face if we chose to break
    the law. The argument for immunity that ‘companies should not be held hostage to costly litigation’
    is an irresponsible affectation. If the law is knowingly violated,
    punishment should ensue; otherwise, we devalue the rule of law. Costly
    litigation is best avoided by staying within the law. Corporations are well
    aware of this, and if they choose to ignore it are as culpable as anyone
    driving under the influence. We all face ‘costly litigation’ if we choose to
    act as criminals.

    The other argument made for retroactive immunity is that the telecoms were
    just performing their “patriotic duty” in the “war on terror”, a thoroughly
    ridiculous ruse when one considers that court documents show that their
    complicity in the illegal, warrantless spy program began well before 9/11.
    Besides, if they were acting in good faith, once again FISA and other
    statutes already in place provide them with immunity.

    one is above the Constitution and the law, even those only interested in
    making a profit. Papers filed in court show that AT & T and other telecoms
    were “rewarded” for their complicity in the government’s illegal spying with
    lucrative government contracts, whereas Qwest was “punished” for refusing to
    break the law with the loss of a multi-billion dollar federal contract that
    it had previously been awarded. If retroactive immunity is granted, we will
    be telling Qwest and its shareholders that the decision to obey the law was
    the wrong one, and be telling AT & T, Verizon, and others that corporate law
    breaking is not only okay, but is also quite profitable.

    It is only through the lawsuits now making their way through the courts that
    we have any chance of learning the extent to which the government and the
    telecoms have been invading our privacy and spying upon us. These lawsuits
    are one of the last chances we have of imposing the rule of law on these
    companies and the government and protecting the basic rights of all

  • D. Raino says:

    Telcoms and the government violated FISA and the Constitution. Let the courts decide, not legislators receiving millions of dollars from the law-breaking companies.

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