Tell Your Senators to Oppose Telecom Immunity!

On Tuesday the Senate is poised to vote on an update to the Foreign Intelligence Surveillance Act (FISA) which includes retroactive immunity for telecommunications companies' involvement in the NSA's illegal warrantless wiretapping program. This will be the embodiment of the famous quote by Richard Nixon regarding his illegal activities, when the president does it that means that it is not illegal. This bill is bad for civil liberties, but more particularly it seems to support the idea that the president can choose to ignore the law and those who help him violate the law and the privacy of Americans won't be held accountable. If you want to do something about this, you can use the EFF's site to call or email your senators. To go into a bit more detail about why this is not a reasonable compromise on telecom immunity, this bill:

Undermines the Rule of Law

The government and telecommunications companies have been involved in illegal wiretapping of the communications of American citizens more than six years at the least, and allegedly since even before the attacks on September 11th, 2001. These are no mere technical violations but relate to very basic issues of privacy and the limitation of government powers. If we hope to control our institutions, government and corporate, we must hold them responsible when they violate the rules that we the people have set down. We do not want to teach them the lesson that they can simply paper over their crimes after the fact. It has been argued that the unique crisis of 9/11 justified this breach of the law. It certainly wouldn't be the first time that someone broke the law with a good, justifiable reason. So let them go to court and explain themselves, like any normal person would have to. We should not live in a nation with a double standard of law, where the rich and powerful don't have to account for their actions like the rest of us.

Appears to Be a Law Bought and Paid For

We have a significant problem in this country where corporations now themselves write the bills that they will be governed by, using access they have bought through campaign contributions. During the secret negotiations on a compromise FISA bill we the people had no input, but news reports confirm lawmakers did talk to the telecommunications companies about what they would like. When the last FISA compromise came to the house floor earlier this year it was defeated, mostly by the democrats. The new bill (which is extremely similar in effect) passed with much increased democratic support. A study of fundraising records found that democrats who changed their votes to yes this time around received nearly twice as much money from telecommunications companies (via PACs). Quite simply, this has at least the superficial appearance of legal immunity that has been bought.

Will Allow Officials Who Committed a Crime to Escape Justice

The warrantless wiretapping program appears to be a very clear violation of the law. The problem is that the justice department which would investigate that crime is under the control of the same president who ordered it. The facts of this crime must be brought to light by others before we can hope for any prosecution. The lawsuits against AT&T for their role in the wiretapping are probably the only way those details will get out. The retroactive immunity will kill those lawsuits and with them any chance of unearthing the truth and holding government officials responsible.

Is Not a Compromise

Although this is being sold as a compromise, it is anything but. During the debate on the previous bill some real compromises were offered in the form of amendments. For example, people supporting immunity for the telecom companies have said that the telecoms shouldn't be held accountable, because they were asked by government to do this for national security during a time of danger and uncertainty. Sen. Specter (R-PA) suggested a compromise to accommodate that view, that would allow the suits to keep going but make the federal government the defendant rather than telecom company. Some have said that the danger of exposing sensitive information is too great, and a compromise in this regard would have been the amendment offered by Sen. Feinstein (D-CA) to move the cases to the FISA court, which regularly hears cases with sensitive intelligence information. We could debate which compromises would be right or acceptable, but at least these were real compromises. The current compromise bill is substantively the same as the last bill that was rejected before.

The two supposed compromises that are being talked about in this bill are essentially meaningless. One is that the telecom companies will have to go before the FISA court to prove that they were asked to do the surveillance in order to get amnesty, but, as the ACLU put it, this just means showing the court a piece of paper we already know they have that says, in essence, the president made me do it. But this will all be done in secret so that no information about the nature of or reason for the authorization will be available to the public. The FISA court will not be able to examine any question related to whether the eavesdropping was legal, only whether it was authorized at all (which we know it was). The second concession is that the bill contains language that this is the exclusive legal authority under which surveillance can be done. But there's a few problems with this: 1) That's already in FISA (Title 18, § 2511 (2)(f)) and the president just ignored it; 2) He ignored it because his administration says it is unconstitutional (they say his article II powers override it); and 3) he will undoubtedly just use a signing statement saying that it still does not limit him to following the law.

It's been said that in a compromise neither side is happy with what they got. As Glenn Greenwald of pointed out, in this case the original supporters of telecom immunity seem quite happy, while many of the original opponents are outraged. It certainly doesn't look like a compromise.

Again, if you want to do something about this, you can use the EFF's site to call or email your senators.