The ranking members of the respective Senate and House Intelligence committees have offered a major concession in the debate over FISA authority, the law that allows the federal government to conduct surveillance of foreign communications that pass through an American communications nexus. At a news conference yesterday, Sen. Kit Bond (R-MO) and Rep. Pete Hoekstra (R-MI) laid out a plan that would give a secret court’s the ability to review the legality of intercepts conducted with the cooperation of telecommunications companies. These companies acted in good-faith compliance with national security orders and for it have been made the target of 40 multi-million-dollar lawsuits.
The litigation is yet another example of trial lawyers hunting for the big payout/payoff, but has even broader implications for the private sector: If you’re going to be sued following a lawful order to help prevent terrorist attacks, the willingness to cooperate diminishes. So the Senate passed version of FISA legislation, S. 2248, provided retroactive immunity to the telecommunications companies. That bill would have passed the House, but leadership prevented an up-and-down vote on that measure and passed an alternative largely as political cover.
Hence the compromise offered by Bond and Hoekstra. From AP:
The White House favors the Senate version of an electronic surveillance bill that grants full immunity to the telecommunications companies. The House-approved version would let the cases go to court, leaving it up to judges to determine whether the companies acted illegally.
The new Republican proposal_ which Sen. Kit Bond of Missouri said is backed by the White House and intelligence agencies_ would allow the FISA court to decide. It would require the attorney general to certify that the companies acted lawfully and at the request of the president.
The court would be allowed to read the requests to telecom companies for the wiretaps to be placed, and the plaintiffs could file their complaints with the court. The court could dismiss the lawsuits if it finds that supported by “a preponderance of the evidence.”
This proposal allows the lawsuits to continue — not to mention the associated politicking — which means a continued disincentive for corporations to agree with the government’s legitimate national security and intelligence requests. But, it does mean a court’s determination as to the legality of the federal action and cooperation by the telecommunications companies. That’s what the opponents want, right? A determination of legality?
Well, the ACLU is still opposed. And the left-wing MoveOn.org and the SEIU are running ads excoriating Blue Dog Democrats who voted for telecom immunity. The opponents on the left appear not to believe that there is a real risk of terrorist attacks against U.S. citizens, regard the Administration as totalitarian thugs and the telecommunications companies as, well…the leading, fevered Daily Kos blogger on the topic compares these American businesses to Mafia and drug kingpins.
Jed Babbin of Human Events reminds us of the real threat.
The damage to US intelligence gathering has accumulated, and in August will become overwhelming. The FISA court orders which have enabled some intelligence gathering to continue despite the expiration of the earlier bill will themselves expire in August. At that point, Usama bin Laden can begin using pay phones.
The need for congressional action is pressing. If the Bond-Hoekstra compromise, no matter its failings, is what it takes to preserve legitimate intelligence gathering abilities, then by all means, put the measure at the top of the agenda when Congress comes back from their Memorial Day week.
UPDATE (Saturday, 9:55 a.m.): The ACLU rejects this wolf in sheep’s clothing, kangaroo court, green light, linchpin, blank check. Effective surveillance authority that acknowledges private sector’s role as citizens…that’s just a piece of paper.
Their thinking is as cliched as their cliches.
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