FISA and Retroactive Immunity

By February 12, 2008Briefly Legal, Communications

The Senate has resumed debate on S. 2248, the FISA amendments. Sen. Feingold (D-WI) just warned against a “dragnet that could sweep the private communications” of citizens. The criticisms get wilder and wilder.

Opponents of immunity for telecommunications companies insist the companies’ cooperation in foreign surveillance was illegal, and they paint the willingness to help prevent terrorists from murdering more Americans as some malign act.

From the report of the Senate Intelligence Committee, which passed S. 2248 out on a bipartisan, 13-2 vote.

The extension of immunity in section 202 reflects the Committee’s determination that electronic communication service providers acted on a good faith belief that the President’s program, and their assistance, was lawful. The Committee’s decision to include liability relief for providers was based in significant part on its examination of the written communications from U.S. Government officials to certain providers. The Committee also considered the testimony of relevant participants in the program.

The details of the President’s program are highly classified. As with other intelligence matters, the identities of persons or entities who provide assistance to the U.S. Government are protected as vital sources and methods of intelligence. But it reveals no secrets to say–as the Foreign Intelligence Surveillance Act, this bill, and Title 18 of the U.S. Code all make clear–that electronic surveillance for law enforcement and intelligence purposes depends in great part on the cooperation of the private companies that operate the Nation’s telecommunication system. ..[snip]

The Committee has reviewed all of the relevant correspondence. The letters were provided to electronic communication service providers at regular intervals. All of the letters stated that the activities had been authorized by the President. All of the letters also stated that the activities had been determined to be lawful by the Attorney General, except for one letter that covered a period of less than sixty days. That letter, which like all the others stated that the activities had been authorized by the President, stated that the activities had been determined to be lawful by the Counsel to the President.

The committee report corrects many of the canards being flapped about by critics of the legislation, who seem to think that shouting “illegal” and “bad faith” somehow amounts to proof.

UPDATE (3 p.m.) CQ Politics story, White House press briefing by Dana Perino, Blog of the Legal Times story.

UPDATE (3:35 p.m.): From Senator Kit Bond (R-MO) of the Senate Intelligence Committee: “[This] vote proves to American families that Republicans and Democrats in the Senate can work together to protect our civil liberties and keep our country safe from attack.”

UPDATE (4:15 p.m.): A favorite line of attack against the bill is the Administration is fear-mongering, creating a climate of fear, etc. Well, who’s the mongerer? From a conference call with Sen. Dodd:

The Senate had “just sanctioned” the “single largest invasion of privacy in the history of the country,” he said.

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