Like many Kossacks out there I too wrote to and received the response from Senator Feinstein regarding her position on FISA. I have responded to her letter and I'd like to share some of that with you.
Dear Mrs. Feinstein,
I have read through your message below and I have a few things that need to be addressed about your rationale for supporting the FISA legislation:
It is important to understand the consequences if the Senate does not pass this bill. We would either have to extend the temporary surveillance bill passed last August - which should not happen - or allow surveillance on certain foreign targets to expire, which would lay the Nation bare and decrease our ability to identify and protect against terrorist threats. Neither of these options is acceptable.
First, your statement in the this paragraph of your reply states that surveillances on foreign targets will expire if the new legislation is not passed. To the average reader, this statement implies that FISA itself will be expiring. Not only is this implication totally false, but your statement urging passage based on this sunset clause is misleading. FISA has no sunset clause and all your constituents need to know that. To omit this critical fact in this paragraph is an underhanded attempt to sow fear into the electorate so that support can be garnered for passing the new FISA bill. The expiration you are obviously referring to is the extension of the Protect America Act (PAA), which has already expired. This sham legislation which went into effect last year should never have been enacted. Therefore, the surveillances you refer to here are unconstitutional to begin with and should not even be a topic of debate when discussing FISA.
I strongly believe that this bill is substantially better than the version the Senate passed in February 2008, which I opposed. It is also a major improvement from the Protect America Act that passed in August 2007, which had few privacy protections and was never intended to be a permanent solution. This bill:
oIncludes provisions I authored that make clear that FISA is the exclusive (or only) authority for conducting surveillance inside the United States. This is crucial as it requires that all future Presidents must act only within the law. FISA would be the only legal authority for conducting surveillance on Americans for intelligence purposes, and only legislation that specifically provides wiretapping authority in the future would be an exception to FISA.
Your first bullet describing the exclusivity clause of FISA only reiterates what the current FISA law already is and codified in 18 U.S.C. §2511 (2)(f). Nothing that John Yoo or any of the lackeys in the Justice Department say can change that fact and congress shouldn’t facilitate rewriting it just to keep some people from inventing phony loopholes in what is already express law. It’s like trying to sell me insurance that I already have. What my read of your statement here is that it implies that george w. bush and his cabal will get a free pass with this "new" wording instituted into the bill. It is the equivalent of saying, "OK, we’ll forgive you of all your illegal surveillance activities this time, but with this new bill, we’ll really get angry if you do it again." I’m sorry but I cannot agree with this line of thinking. Just the implication, the mere thought of being lenient for the offenses created to date and wiping the slate clean and literally rewriting the same restrictions that are currently in place is something that just cannot be allowed to happen. This is what makes your "compromise" nothing more than total capitulation. You cannot sell me on this.
oRequires the government to obtain a warrant before surveillance can begin. This applies to all Americans - anywhere in the world. The Protect America Act allowed surveillance for up to six months before getting a warrant. This bill ends all warrantless surveillance of U.S. persons. In this sense it is precedent setting.
This next bullet once again confuses your constituents into believing that PAA is part of FISA. It is not. The warrant requirement is part of the current FISA law (50 U.S.C. §1802). With regards to the new FISA bill, there is absolutely nothing that is precedent setting with your statement.
If you want to discuss precedent, all you have to do is look up Katz v United States (389 U.S. 347) which established that precedent back in 1967 and reaffirmed in 1972 to specifically check presidential powers regarding national security in United States v United States District Court (Keith) (407 U.S. 297). The warrant requirement is the hallmark of FISA, which was spawned by the Supreme Court decisions of Katz and Keith, among others. These cases are first year Fourth Amendment study cases in any law school.
oBans reverse targeting, which was a concern under the Protect America Act. Reverse targeting would allow the government to collect the contents of telephone calls and e-mails of an American by conducting surveillance on the people with whom they communicate. This is prohibited in this bill.
oRequires that the government implement procedures approved by the Court for minimization. If an American's communication is incidentally caught up in electronic surveillance while the Government is targeting someone else, minimization protects that person's private information. This has been a hallmark of FISA for 30 years, but court review and approval of minimization procedures was not included in the Protect America Act. It is here.
Your third bullet correctly raises a concern regarding reverse targeting that was a problem with PAA. Now that this act has thankfully expired, the issue of reverse targeting is rendered moot, since this too is covered in FISA (50 U.S.C. §1806). Additionally, the minimization procedures you mention in the next statement are also covered within the same section of FISA as reverse targeting. You are not bringing up anything new here. Your statements are mere attempts to obfuscate the merits of current FISA law with provisions contained in the expired PAA, the latter of which was and still remains the greatest threat to our constitutional freedoms ever ramrod through congress.
oRequires the government to receive a warrant to conduct surveillance on an American outside of the United States. This means that Americans' privacy rights are protected everywhere around the world. A court warrant has never been required outside the United States before; this would be the strongest protection ever.
Your last bullet is the only new protection you bring up here. If you are to tell me that we Americans get added protection worldwide in exchange for letting this administration and its allies in the telecommunications industry off the hook for its past misdeeds, I’d tell you this bill is nowhere near worth it.
I understand your concern regarding Title II of this bill, which creates a process that may result in immunity for telecommunications companies that are alleged to have provided assistance to the Government. I agree that this is not the best approach to the current legal challenges to these companies. Earlier this year, I pushed an amendment that would require court review of the legality of these companies' alleged actions. Under my proposal, cases against the companies would only be dismissed if the Court found that they acted legally. I continue to believe this is the right approach.
There may be amendments offered to the FISA legislation to strip or modify the telecom immunity provisions. Know that I will support any that I believe improve the current bill.
Now we get to the subject of immunity. If for just a brief moment you can ignore PAA and talk just FISA, can you tell me just what is the compromise? Why is it necessary to insert immunity into this bill in the first place? In the beginning of your letter, you mentioned active foreign surveillances are in jeopardy if we do not pass this new legislation. By deducing the warrant requirements of the current FISA law where specific named targets need to be approved by the FISA court and applying them to the "new" methods of collection, one can only conclude that warrantless bulk collection or "data mining" activities are being used to indiscriminately spy on our telecommunications in clear violation of our constitutional protections. This means all our telephone calls and email messages are subject to interception without oversight from an independent magistrate. If this is so, then these ongoing surveillances shouldn’t continue and the crimes perpetrated by these actions instead should be prosecuted.
What this bill is trying to do is to clearly legalize crimes that have been committed. With regards to this subject, I’m happy to tell you there is significant precedence here. The precedent is that if you flagrantly violate the law, especially under the color of authority, and if you have enough money, enough lobbyists, and enough friends in congress, then you can buy immunity. Imagine what consequences will happen when the floodgates open and more retroactive immunity laws are introduced for the many crimes committed by this administration. I’m sure, Mrs. Feinstein, you’ll be proud of yourself then.
Bottom line: this FISA legislation, while not perfect, would bring intelligence activities back under U.S. law. It provides significant improvement in oversight and accountability of our intelligence collection programs while still giving the intelligence community the tools needed to keep our Nation safe. And, it provides the strongest privacy protections to U.S. persons in history.
Regarding your "bottom line" statement, you still make the claim that this bill strengthens our privacy protections. Nothing could be further from the truth. Throughout your letter you make repeated comparisons to the ill-conceived Protect America Act, yet the final bill is a bill that amends the 1978 FISA law, which you make little mention of. When one compares the proposed bill to the original FISA, there is little to shout about. I find your reasoning here to be disingenuous at best.
In conclusion, I have served on the Intelligence Committee for seven years and I take the responsibility extremely seriously. If there is no bill, our Nation goes bare in mid-August, unless the Protect America Act, which does not offer, even remotely, the privacy protections for U.S. persons that are included in this bill, is extended. Additionally, the President - any President - cannot enact a program outside of this law in the future.
Unfortunately Mrs. Feinstein, your conclusion is the most ridiculous and the most misleading of all your letter. You make the claim that if there is no bill, then there is no law. This is not even implied. You flatly tell us that in your words. Then you make the equally ridiculous notion that the only remedy is to extend PAA. Where is FISA in your statement?
Your clear intent and the one I find the most offensive is that fear is driving your reasoning to push this bad bill through on us again. Not only fear of another terrorist attack on the United States, but fear of your president who just might say boo! I and most others upset with this government are tired of seeing laws being enacted that intrude on our rights and that are driven entirely on the fear represented in your letter. If that is the case, then the terrorists truly have won. What frustrates me is seeing the sorry spectacle of my congressional leadership cede its Article I powers to an incompetent administration hell bent on seizing total imperial power.
Earlier you said that this bill "would bring intelligence activities back under U.S. Law." Wrong! congress can pass any number of laws needed to protect us. They don’t mean anything unless there is leadership in the congress that will actively enforce these laws and hold those accountable, accountable. Without the backbone necessary to hold the bush administration accountable for its misdeeds, and based on the failure of this congress to bring up any hearings on these matters, how can you tell me that this version of FISA will be upheld? All I have to do to look for proof is this congress’s failure to enforce the FISA law of 1978.
Sincerely,
Me