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FISA legislation passes, 69-28; telecoms get immunity

The Senate has just passed H.R. 6304, the FISA Amendments Act, to update the authority for intercepting foreign, electronic communications for intelligence purposes. Earlier today, the Senate handily defeated three amendments that would have undercut (and in the case of the Feinstein-Dodd amendment, eliminated) the legal immunity the legislation provided to telecom companies that assisted in the Administration's post-9/11 program of surveillance. The vote was 69-28.

The legislation now goes to the President, and once it becomes law, the telecom companies can submit documentation to the U.S. District Court to demonstrate that they were, indeed, asked to cooperate by the Administration in the surveillance. (The usual phrase is "given a legal order" or words to that effect.) If the documentation satisfies the court, as most everyone expects it to, the court will dismiss the 40-plus civil lawsuits filed against the companies.

This bill and immunity for the telecoms have been a cause celebre among civil libertarian groups like the ACLU and EFF, opponents of the Administration's foreign-policy, and the left-wing blogosphere. With litigation pending, and being in an unenviable PR position, the telecommunication companies mostly stayed quiet.

Still, a very good explanation of the national security and legal reasons for the bill came from Sen. Orrin Hatch (R-UT) today on the Senate floor. (Prepared remarks here.)

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.

The Senator also does a nice job of debunking the legal claims of those who sued the phone companies: "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."

I've been following this week's FISA debate over at Shopfloor.org. Start here.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.