Good News & Bad News on FISA

The following is an email message I received from DownsizeDc.org about their work to quash Congress's latest attempt to "modernize" FISA. If you haven't already, I ask that you add your name to the growing list of those that would like to see this latest travesty of justice thrown straight in the dust bin where it belongs.

I have bad news and good news.

We devoted all last week to combating warrantless surveillance and retroactive telecom immunity. We had reason to believe the issue would be shelved if we could prevent a vote before the weekend. No vote was held, but the issue hasn't been shelved yet.

Senator Kit Bond (R-MO) says a deal is close. We don't know all the details. We only know what Bond and a couple of his Republican allies have chosen to share with the world. But what we do know isn't good. Here's what we're hearing about the proposed "compromise" . . . 

* If the Executive Branch wants to spy on the private conversations of American residents and businesses with friends, family, colleagues, and service members abroad, MOST OF THE TIME the Executive Branch will need a general order, rubber-stamped by a Secret Court and certified by the Attorney General (AG). This will permit the Executive Branch to monitor and acquire international communications, by Americans, even if they have no ties to groups like al Qaeda.

* But if there are "exigent circumstances," then the standard will be lowered. The Senator didn't provide his devilish details. Perhaps no Secret Court would be required. Maybe all the Executive Branch will need is the AG certification of the surveillance.

* Who will define exigent circumstances? Apparently, under Senator Bond's proposal, the Executive Branch will do that. 

This is a rogue prosecutor's fantasy.

Senator Bond considers his proposal to be a compromise on the subject of retroactive telecom immunity. So how would Bond handle the existing court cases against the telecom companies? 
 
* If you believe the government is spying on you, and want to bring a court challenge, your case will be heard by a Secret Court.

* The primary concern of the Secret Court will be to confirm that the AG certified the surveillance.

* If the secret court determines that the AG did in fact certify the surveillance, your case will be dismissed.

This is what the Senate Republicans mean by "compromise!" The Executive Branch would decide what the Executive Branch should be allowed to do. The AG is, after all, a member of the Executive Branch. So the only role for the Judicial Branch would be to confirm that the Executive Branch really decided to do what it decided to do.

This has an "Alice in Wonderland" quality to it. It leaves the fox in charge of the hen house. It throws the "separation of powers" out the window. This so-called compromise is still warrantless surveillance, and it's still a violation of the Fourth Amendment.

House Democrats have stood strong against warrantless spying -- so far -- but they're afraid of being labeled as soft on terrorism. They're feeling pressure from the Republicans -- who are running media campaigns in some of their districts. We must continue to urge the Democrats to NOT be afraid and continue to stand strong.

It's worked so far, and it can continue to work, if we can maintain the pressure.

The good news is that we've been fighting these proposals for two years, and we've won every battle but one. The battle we lost was the rushed vote on the "Protect America Act." It only passed because it was considered a temporary measure, with a six-month sunset. The PAA was allowed to sunset out of existence, thanks to pressure from folks like you. 

Let's be clear about this: the existing FISA law doesn't need to be "modernized." It's already been updated more than 50 times, including 8 times during the current administration. Under the existing FISA law surveillance can begin 72 hours BEFORE a FISA warrant request is filed, and the FISA court approves 99% of all warrant requests. The President already has everything he needs to respond to emergency threats.

The only reason the President and the Republicans are asking for more is because the President, members of his administration, and the telecoms broke the law and violated the Constitution. They want retroactive cover for their criminal actions in order to protect their allies from going to jail or paying big fines.

They want to violate your rights in order to save their own skins. This must not be allowed. The Republican's self-serving scare mongering must be opposed. The Democrats must continue to stand firm. They must not chicken out and allow themselves to be intimidated.

Congress returns to Capitol Hill next week. They should be greeted by an overwhelming response. They should feel that moving this bill forward would be like touching an electrified rail. Please send Congress another message. Use your personal comments to tell them that you know how the existing FISA law works, and that nothing else is needed -- tell them to reject Senator Bond's so-called "compromise."

You can send your message here.