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Surveillance Bill Goes to House Vote



The Majority Leader's office indicates that the House will vote on H.R. 6304, the FISA Amendments Act, by 2 p.m. today.

The Wall Street Journal's editorial today, "The Intelligence Deal," does an excellent job of summarizing the issues at play, and the editors are not that thrilled with the outcome.

On the bright side, the deal gives crucial immunity to the telecom companies that in good faith assisted this surveillance after 9/11. A reality of this Internet era is that the feds need these private companies to monitor terrorists; our spies can't merely bug the phones of Russian spies like they could during the Cold War. The left understands this and has hit the companies with some 40 lawsuits in an attempt to shut down the surveillance by the backdoor, without a political debate that voters might understand.

The telecom (and other) companies have thus made it clear that they can't afford to cooperate any longer without immunity. And so the deal will let the companies escape the lawsuits, for past and future cooperation, if they present to a federal judge a certification from the Attorney General that they are helping at federal request. The eavesdropping orders that expire in August can thus be renewed, so our security services won't have to "go dark" over the global antiterror battlefield.

But, this protection comes at the cost of injecting the courts into the executive branch's war-making authority -- a compromise that future administrations will regret.

Also making reasonable observations about the legislation is the Washington Post's opinion page, "A Better Surveillance Law."

The news/analysis/political interpretation about the legislation is on page one of the Washington Post and New York Times.

Elsewhere...


  • The Electronic Frontier Foundation's news release denouncing the "sham compromise." EFF's analysis of the bill. (EFF has represented private parties in lawsuits against the telecoms.)

  • ACLU news release, calling the "Hoyer/Bush Surveillance Deal" unconstitutional.

  • Statement by Sen. Russ Feingold (D-WI) calling the legislation, in effect, a travesty of a mockery of a sham of a mockery of a travesty of two mockeries of a sham.


And, finally, a blog post from a lawyer who supports the agreement. With respect to the telecom immunity, Paul Mirengoff of Powerline observes: "In prior versions of this legislation, the standard of review with respect to certifications by the Attorney General was "abuse of discretion." Thus, those who wish to limit the immunity grant can claim a victory of sorts based on the inclusion of a "substantial evidence" standard. In practice, however, the new standard should not be a difficult one to meet. Absent a very liberal, very mischievous judge, a telecom company that deserves immunity should be able to obtain it rather summarily."

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Rafael Mangual
Project Manager,
Legal Policy
rmangual@manhattan-institute.org

Katherine Lazarski
Manhattan Institute
klazarski@manhattan-institute.org

 

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.