After defeating three attempts to improve the update to the Foreign Intelligence Surveillance Act, the Senate approved the FISA update on a 69-28 vote. Senator Barack Obama (D-Illinois), the Democratic presidential nominee-elect, voted in favor of the measure, while his former rival, Senator Hillary Rodham Clinton (D-New York) voted against.
After the vote, the Electronic Frontier Foundation, which is representing plaintiffs in 40 lawsuits against the telecom companies, also vowed to fight the bill in court, confirming a vow it made in a statement posted two weeks ago on the news site RawStory.com.
“It is an immeasurable tragedy that just after its return from the Fourth of July holiday, the Senate has chosen to pass a bill that betrays the spirit of 1776 by radically expanding the president's spying powers and granting immunity to the companies that colluded in his illegal surveillance program,” said EFF senior staff attorney Kevin Bankston.
Bush, Congress, Telecoms Ignore '70s Court Rulings That Warrantless Surveillance Violates Fourth Amendment
For more than two years, this blogger has argued relentlessly that the Bush administration's program of eavesdropping on the telephone conversations of Americans with overseas parties without first obtaining court warrants violates the Fourth Amendment of the U.S. Constitution, which bars unreasonable government searches and seizures.
The courts have ruled numerous times that the Fourth Amendment requires the government to obtain court warrants, upon a presentation of probable cause, for such surveillance, culminating in a unanimous ruling by the Supreme Court in 1972 to that effect, striking down a similar warrantelss wiretapping program by the administration of President Richard Nixon.
Over the same two-year-plus period, Congress has been deliberating over how to update FISA -- which it passed in 1978 in response to massive abuses of the government's surveillance authority under Nixon -- to account for technological advances made in the 30 years since its passage.
Telecom Immunity Violates First Amendment Right to Seek Redress, Foes Say
Other critics -- while stopping short of charging outright violations of the Constitution -- have long said that Bush simply ignored the original intent of the FISA law in ordering the National Security Agency to eavesdrop on Americans' conversations with people abroad without first getting warrants from the secret Foreign Intelligence Surveillance Court established under the law.
The bill won final congressional approved Wednesday despite the vehement opposition of civil liberties and privacy advocates. Not only does it re-authorize much of the warrantless data-mining and surveillance Bush initiated after the September 11, 2001 terrorist attacks, it also grants legal immunity to telecommunications companies that facilitated the program.
That provision, critics say, violates the First Amendment right of Americans to seek judicial redress for the telecoms' failure to safeguard their Fourth Amendment right to privacy by not demanding the government produce court warrants for their millions of customers' confidential records.
Senators. Russ Feingold (D-Wisconsin) and Christopher Dodd (D-Connecticut) co-sponsored an amendment to the FISA bill that would have removed the retroactive immunity provision. It failed, as did two separate attempts to modify the immunity provision.
Filibuster Against Telecom Immunity Fails
Dodd had vowed earlier this year to mount a filibuster to kill the telecom immunity provision, but conservative senators of both parties succeeded in mustering the 60 votes needed to cut off debate and move the measure forward.
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