FISA Update: Sen. Hatch Makes the Private Sector Case

In the FISA debate, Sen. Orrin Hatch (R-UT) has been a clear and consistent speaker on the importance of providing immunity to telecommunications companies that assisted in surveillance of foreign communications. His remarks today on the Senate floor made the case in as straight-forward of way as we’ve seen, and he also punched holes in the more conspiratorial arguments that comes from the left.

From his prepared remarks:

It’s very simple – Congress should not condone oversight through litigation. 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. Yet we consistently hear as justification for the apparent paranoia that some wiretaps were warrantless. But lest we forget, the 4th Amendment does not proscribe warrantless searches, it proscribes unreasonable searches.

The fact is the President created an early warning system to prevent future attacks;
essentially a terrorist smoke detector. But rather than appreciate the protection it offered,
critics rushed to pull out the batteries so that it couldn’t work. My feelings of admiration
and respect for the companies who did their part to defend America are well known. As
I’ve said in the past, any company who assisted us following the attacks of 9/11 deserves
a round of applause and a helping hand, not a slap in the face and a kick to the gut.

As an antidote to the pyretic claims about the police state, the Senator remarks:

In the over 40 outstanding civil lawsuits, is there any proof that any litigant was specifically targeted by the government? Can any of the plaintiffs show that they are “aggrieved persons” under the definition of FISA? The answer to both questions is no. Rather, many of the lawsuits utilize the following logic: I have long distance service, so I am going to sue because I think you listened to my calls. Even though they have no proof; even though the government has more important things to do than listen to their random phone calls, they push on in their desire to justify their view of self importance and irrational belief in government conspiracy. I don’t want to bruise anyone’s ego, but if Al Qaeda is not on your speed dial the government is probably not interested in you.

And in the litigation that follows, either intelligence and national security secrets are revealed, or the companies cannot defend themselves.

A very good summary of the case for immunity and passage of H.R. 6304. Thanks, Senator.

Join the discussion One Comment

  • anon says:

    Where to begin?

    Lets start with the most awful of Hatch’s statements:”Congress should not condone oversight through litigation”. Sandra Day O’Connor once pointed out that many Eastern bloc nations during the cold war had constitutions that included things similar to our bill of rights. Yet they didn’t enjoy those rights. The one difference we have is the concept of Judicial Review – The power of the courts to ensure that the government obeys the law. Without “oversight through litigation” are rights can not last.

    Hatch says that this bill was not jammed through because similar bills have been passed and debated for over a year. He ignores the fact that this particular bill (HR 6304) and its drafts were kept secret and not released to the public until the day before the HR vote.

    He cites our minds back to the the 70s when the intelligence committees were formed. Does he remember the Church committee hearings in the 70s where it was found that people like Martin Luther King were wiretapped with the AG’s rubber stamp of approval? – All under the guise of the ‘war on communism’. Of course such a thing would never happen in the war on terror. Hatch would have us ignore that part of history and paint those who are worried about such abuses as egotistical tin-foil-hat-wearing conspiracy nuts.

    He goes on: “I’ve said in the past, any company who assisted us following the attacks of 9/11 deserves
    a round of applause and a helping hand, not a slap in the face and a kick to the gut.”

    And what of those that began breaking the law before 9/11, Hatch? Qwest’s CEO asserted that the NSA was trying to get these warrantless wiretaps started as early as February of 2001. Qwest’s CEO says that he followed the law and asked for a court order, and that the government retaliated by denying his company lucrative contracts. In my book, it sounds the true patriots, the companies who obeyed the law, were the ones who got the slap in the face and the kick to the gut.

    “In the over 40 outstanding civil lawsuits, is there any proof that any litigant was specifically targeted by the government?”

    The key phrase is “specifically targeted”. There is evidence that ALL phone traffic through at least one telco central switching location was split and transferred to government machines.

    “Can any of the plaintiffs show that they are “aggrieved persons” under the definition of FISA?”

    If the government would simply allow the cases to proceed and allow the plaintiff’s to ask the feds or the phone companies under oath, “Was my phone tapped without a court order in violation of federal law?” this wouldn’t be a problem. If the plaintiff’s are simply irrational conspiracy nuts with inflated egos as Hatch implies, then the cases will be quickly dismissed. The judicial system knows how to handle frivolous cases.

    Hatch ends with concerns that if law breaking companies are identified, then they might lose business with foreign customers, and risk violence. That may be the case, but you know what? Too bad. The same applies to anyone who breaks any law. Some people stop doing business with criminals, and yes, sometimes vigilantes or mobs take the law into their own hands. Hatch, should we shut down the entire judicial branch to ensure this doesn’t happen to anyone?

    “And in the litigation that follows, either intelligence and national security secrets are revealed, or the companies cannot defend themselves.”

    The plaintiff’s in the cases I’ve been following have been sticking to publicly disclosed evidence. And should confidential evidence arise, the court system has plenty of history and procedures in place to properly handle it.

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