FISA Update: The Right Way Forward

The lead editorial in today’s Washington Post, “FISA Follies,” has a good description of the disputes and delays that have so far prevented passage of renewed authority to intercept foreign electronic communications.  It’s a case of “Internet tail wagging the legislative dog.”

The angry activist, online left — “netroots” — has stirred up a cyberstorm of reaction against the legislation, H.R. 6304, the FISA Amendments Act, in great part because the bill would provide effective immunity for the telecom companies that assisted the Administration with surveillance in the wake of the 9/11 terrorist attacks. The companies were abiding what they saw as lawful orders, but more than 40 civil lawsuits resulted.

The Post praises Sen. Barack Obama for changing his mind and supporting the legislation after months of denunciations; his reversal has elicited protest from his absolutist supporters. (Shouldn’t Sen. McCain warrant an editorial mention for getting the issue right from the beginning?)

As for immunity, the Post (our emphasis):

[The] fact remains that no one can claim with certainty that his or her communications were monitored. The likelihood of prevailing — or even getting very far — with such lawsuits is low. The litigation seems aimed as much at using the tools of discovery to dislodge information about what the administration actually did as it is at redressing unknown injuries. The telecommunications companies complied with a government request after being assured, in writing, that the activities had been authorized by the president and deemed lawful by the attorney general. Punishing them by forcing them to endure the cost and hassle of lawsuits would be counterproductive to securing such cooperation in the future, while offering little prospect of a useful outcome.

More fundamentally, even if we are wrong and retroactive immunity is not warranted, that is the least — not the most — important aspect of the complex FISA debate. The more important concern is to ensure that there are adequate protections in place, including vigilant court oversight, to give intelligence agencies the flexibility they need to intercept international communications without infringing on the privacy rights of Americans.

Given overwhelming House passage (293-129) and the Senate cloture vote (80-15), Senate opponents are now limited to restating their arguments against the bill, again, yet another time, repeatedly, while the Internet activists e-mail. But the delays can’t go on forever: August 1 marks the end of existing surveillance authority in many cases. 

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