The Foreign Intelligence Surveillance Act (FISA) Laymen’s talk
Eileen Dannemann, Director National Coalition of Organized Women
Well folks, this latest FISA bill that is being voted on in the Senate, soon2is around 100 pages long. If you can find it! Having talked to Speaker Pelosi’s (for) and Feingold’s (against) office staff and although, at the time of this writing I, Eileen Dannemann, the director of the National Coalition for Organized Women (NCOW) cannot find the 100 pages. However, I will share with you what I have ascertained:
At the time President Bush authorized the US telecommunication companies to spy directly on Americans from American soil, the original FISA Act effectively had limited surveillance to overseas. In other words we could tap phones from overseas but not from the United States. With the world communication network as it is, the limitation (to tap from an overseas perspective) was and is (according to the new FISA bill) outdated. President Bush thought so, too. So, it goes like this: You buy a piece of land that has no access; You know if you ask the town planning board (Congress, FISA court) for a provision that allows you access; they may either deny you or put you off for years. So you go ahead and bulldoze access, then ask permission. And so it is with President Bush, circumventing the existing FISA law, he bulldozed his way, pre paving domestic surveillance, by using other statutes such as the Presidents authorization for military force (AMF).
What did this aggressive act lead to? The new FISA bill has expanded the original FISA to allow domestic spying. The President can now simply follow the new FISA protocol, which allows him to do legally what he did illegally. However, there are a few minor hurdles that he must jump over which he accepts as a reasonable inconvenience considering the monumental exchange…legalizing domestic spying on American soil.
Five months ago, January 2008 Senator Obama stated,
“I strongly oppose retroactive immunity in the FISA bill. Secrecy must not trump accountability. No one should get a free pass to violate the basic civil liberties of the American people - not the President of the United States, and not the telecommunications companies that fell in line with his warrantless surveillance program.” ‘It was a very just and noble position at the time before getting polluted with the nitty-gritty of political reality. The Democratic presidential hopeful is now committed to vote for the bill: June 20, 2008 "It restores FISA and existing criminal wiretap statutes as the exclusive means to conduct surveillance -- making it clear that the President cannot circumvent the law”.
Unfortunately, Senator Obama’s use of the word “restore” instead of “expand” is a bit misleading. Well folks, the President doesn’t have to circumvent the law anymore. By expanding FISA powers, it is now “legal” to spy from American soil whereas before it was illegal. What Obama might have said is “By signing this bill I have agreed to expand the powers and statutes of FISA to include domestic spying…making it clear that the President no longer has to circumvent the law”.
Now to be fair to Senator Obama he has in large part kept his January 2008 word, “Secrecy must not trump accountability.” With the signing of this bill the President no longer has to secretly circumvent the laws. According to Pelosi’s office staff, no other statute-only an expressed statutory authorization can now be used to authorize surveillance. This bill confirms that domestic spying is legal but must now have the expressed authorization of the FISA court.
As far as Obama’s statement in objecting to “retroactive immunity”, it has been only recently argued that it would be impractical to hold the Telecommunication companies responsible for following what they perceived was a Presidential order.
Since the Telecommunication companies would claim that they followed what was apparently a legal authorization power of the President of the United States it would be hard to nail them for illegal acts. So, why beat a dead horse? This bill basically gives the Telecommunication companies immunity, which the authors of the bill feel would be the inevitable result in a protracted court battle. In a nutshell, along with immunity, this bill advises surveillance participants, like, but not limited to, the Telecommunications industry, that from this day forth they may still secure legal, warrantless authorization to spy on American citizens albeit under a new authority, the FISA court. Pelosi’s arguments, along with the strategic Presidential bulldozing may well go a long way to neutralize Senator Feingold’s point that “The proposed FISA deal is not a compromise; it is a capitulation. The House and Senate should not be taking up this bill, which effectively guarantees immunity for telecom companies alleged to have participated in the President’s illegal program, and which fails to protect the privacy of law-abiding Americans at home.”
However, it is well to note what I consider Senator Feingold’s most salient point “…under this bill, the government can still sweep up and keep the international communications of innocent Americans in the U.S. with no connection to suspected terrorists, with very few safeguards to protect against abuse of this power.”
In other words, if a United States citizen on American soil has an email or a phone conversation with a person who is under security surveillance with proper FISA warrants etc., the conversation will be monitored, recorded and saved for an undetermined period of time. If the citizen inadvertently confesses or alludes to some illegal activity independent of the purpose of the surveillance (terrorism, homeland security), the citizen may then be passed to another agency, subject to his/her own issue specific warrant. Moreover, the stored conversation or email may be used by the prosecution and admissible in a court of law.
Feingold continues, “Instead of cutting bad deals on both FISA and funding for the war in Iraq, Democrats should be standing up to the flawed and dangerous policies of this administration.” Senator Feingold… meets Dennis Kucinich and Ron Paul!