Wednesday, April 09, 2008

Walberg, Schauer on FISA

Many of you may remember the controversy caused by the Bush Administration got not too long ago involving their use of warrantless wiretaps and other surveillance, sometimes domestically. Critics said, "Hey! You can't do that! It's illegal!" The Bush Administration said, "... But we're using it to fight terrorists!" The critics again replied, "It's still illegal!"

Just to be even more clear about it, when the House of Representatives passed the Intelligence Authorization Act last year, they added an amendment regarding such surveillance programs. Here's what I wrote when that happened:
Congressman Adam Schiff, a Democrat from California, offered an amendment yesterday.
An amendment numbered 10 printed in House Report 110-144 to state that the Foreign Intelligence Surveillance Act of 1978 (FISA) shall be the exclusive means by which domestic electronic surveillance for the purpose of gathering foreign intelligence information may be conducted, and makes clear that this applies until specific statutory authorization for electronic surveillance, other than as an amendment to FISA, is enacted.
In other words, no more warrantless wiretapping by the Bush Administration. For those that have forgotten, President Bush has asserted in the past that the FISA court, which allows the government to secretly conduct domestic surveillance with only a handful of people knowing, was too slow. Instead, the president felt that he was justified in ordering the wiretapping of anyone, anywhere, at any time without a warrant from any court, and without any oversight. We were supposed to trust that he'd only watch the terrorists, of course.

That's my biased explanation, and some out there might disagree with how I characterized the warrantless wiretapping program. But-- here's the thing that has me shocked and amazed-- it looks like Congressman Tim Walberg, for once, agrees with me.

Tim Walberg voted Yes on the Schiff Amendment. A total of 23 Republicans joined 222 Democrats to pass the amendment, 245 to 178. In addition to Congressman Walberg, Michigan Republicans Vern Ehlers (MI-03) and Fred Upton (MI-06) voted to support the amendment.

Although I still think Congressman Walberg should be voted out of office, this was a very pleasant surprise this morning. Thank you, Congressman, for asserting that the executive branch does not have unlimited powers, and that even the president must follow the law.
It was one of my rare moments of actually agreeing with Tim Walberg. It was amazing.

Still, that didn't settle the controversy. The FISA court, many felt, was too slow and not able to handle modern threats, so people proposed a few possible fixes. This was the subject of much debate, most of which isn't relevant to this post. If you're really interested in more of the details, start with Wikipedia, and continue from there.

A major point of dispute did arise, however, and continues to be an issue. The Bush Administration requested an amendment to any bill which "fixes" FISA which would include retroactive immunity for the telecommunications companies that helped the Bush Administration while it was breaking the law in its warrantless surveillance program.

Let's be clear about this. The telecom companies knew they were breaking the law. They've got lawyers and everything, and I think most lawyers are at least vaguely familiar with the Fourth Amendment, which says that unreasonable searches and seizures (like listening to your phone calls without a warrant) aren't allowed. They're probably even familiar with some of the Supreme Court rulings and complicated legal arguments around the issues. I mean, lawyers generally know the law pretty well. And a big corporation doesn't do anything without talking to its lawyers.

It also doesn't help that the Bush Administration refuses to show congressional leaders documents related to their warrantless surveillance program. It's hard to forgive someone for something when you don't even know exactly what they did.

After a great deal of debate and leadership from Senator Chris Dodd (D-CT) against granting immunity, the Senate passed a bill with retroactive immunity and the House passed a bill without retroactive immunity.

Congressman Tim Walberg, a proud supporter of President Bush, voted No on the bill without retroactive immunity.

Congressman Walberg then went to the Battle Creek Enquirer to offer his thoughts in an op-ed:
As we enter into April, our nation begins its seventh straight week of being more vulnerable to terrorist attacks.

Misguided leadership in the U.S. House of Representatives is directly responsible for our country's current state of vulnerability. On Feb. 17, important updates to the Foreign Intelligence Surveillance Act (FISA) expired, and House leadership refused to pass a permanent bipartisan FISA update modified to address today's world of instantaneous communication.

Without these updates, our intelligence community is back to using pre-9/11 gathering tools, which is completely unacceptable. Because FISA updates expired, American intelligence officials currently must fill out lengthy, detailed applications before new surveillance of foreign terrorists can begin. This process can take hours, with no guarantees.

American military and intelligence officials need the right tools to protect American citizens from terrorist threats. These officials need to be able to monitor, without delay, communications between suspected and known foreign terrorists in foreign countries. We must not prevent our intelligence community from being able to monitor Osama bin Laden's phone calls.
Ah geez. From the sounds of it, Nancy Pelosi and John Conyers pretty much invited Osama bin Laden to tea!

Really, this is ridiculous rhetoric. Congressman Walberg, if our national security is really at stake, why not support the House version-- which gives President Bush all the tools he asked for-- and deal with retroactive immunity later? If it matters as much as Walberg says, if terrorists are plotting to exploit this weakness, why not support any bill that strengthens our intelligence agencies? Can't telecom immunity wait for a week or two?

But Walberg does address the issue of retroactive immunity for telecommunications companies in his op-ed:
House leadership will not support current FISA legislation because the bill would prevent trial lawyers from suing American telecommunications companies who cooperate with American intelligence agencies' monitoring of foreign terrorist communications.

Recent news reports revealed that almost 40 lawsuits are pending against the very telecommunications companies who helped our country in a time of crisis. Gathering intelligence to defend America's national security has never been and should never be a political issue.

It is shameful that some in Washington place the ability of trial lawyers to sue over national security. When American companies assist American intelligence agencies with monitoring foreign terrorist threats, they should be thanked, not sued.
That's right... blame the trial lawyers. Obviously, the only reason anyone is suing the telecom companies is because they're greedy. They're not suing because the NSA potentially invaded our privacy.

Congressman Walberg, however, is pure and altruistic on this issue, standing up for telecommunications companies because they were patriotic! It has nothing whatsoever to do with getting a $2,000 contribution from AT&T's federal PAC. Those things never matter to politicians.

Nevermind the fact that the telecommunications companies broke the law. Nevermind the fact that instead of giving them blanket immunity, we should be giving them a chance to state their case and defend themselves in federal court, as the House bill does. And nevermind the fact that we'd be giving them immunity without even knowing exactly what they did.

I agree, FISA probably needs updating. So, Congressman Walberg, just update FISA, and let the courts decide whether laws were broken and what the punishment should be. Isn't that why we have courts? Aren't we a nation of laws?

And stop making people like me seem like terrorist sympathizers. We're not, and you know it.

Now, if you noticed the title, you saw that it was "Walberg, Schauer on FISA." You're probably wondering where Mark Schauer comes into this, right?

Schauer, a Democratic candidate for Congress, released this video:

It's great to see that Schauer is taking a firm stand on this, and this is a great issue to define Walberg on. "I believe that corporations who break the law should be held accountable in court. Tim Walberg thinks we should give them immunity after they've broken the law."

These issues matter, and it's good to see Democrats standing up on them.

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