FISA Update: In the Senate

Indications are that Senate Majority Leader Reid will file cloture on H.R. 6304, the FISA Amendments Act, with a Senate vote to occur Wednesday. A debate has emerged hot and furious among the political left about the decision of Sen. Barack Obama to support the legislation, although he says he’ll try to have the telecom immunity provision removed. Hotline’s Blogometer has the rundown of the reaction to what the Washington Post calls “his most substantive break with the Democratic Party’s base since becoming the presumptive nominee.” Moveon.org, the cash-flush lefty outfit, is urging supporters to contact Obama to urge him to lead a filibuster.

More uproar from the Maine Civil Liberties Union, attacking telephone companies.

And The Washington Times had a good editorial restating the case for telecom immunity in the FISA bill, “A good deal on FISA.”

The most important benefit of the agreement is that it grants retroactive liability protection to telecommunications companies who responded to the federal government’s request for emergency help after September 11. The companies did their patriotic duty: making sure that the U.S. intelligence agencies were able to monitor the telephone calls and faxes of known and suspected terrorists – at a time when there was good reason to worry about a second wave of attacks. However, for doing the right thing, the companies were hit with approximately 40 lawsuits pushed by the ACLU, the Electronic Frontier Foundation and trial-lawyer activists. These lawsuits exposed the telecoms to the possibility of paying billions in damages for helping the government conduct “illegal” warrantless surveillance. But two centuries of American case law demonstrate that the warrant requirement has never been absolute. To cite but one of many exceptions, the president has long been understood to have the “inherent authority” to conduct warrantless searches to obtain foreign intelligence information. This has been recognized by federal appeals courts and was acknowledged in 2002 by the Foreign Intelligence Surveillance Court of Review.

In this context, it would be difficult to imagine a more pernicious message to send to these companies – forcing them to choose between their fiduciary duty to stockholders on the one hand and acting lawfully to help protect their fellow citizens from terrorist attack on the other.

 

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