Monday, February 18, 2008

The Senior Quisling from California Responds re. FISA

I wrote both my U.S. Senators, Ms. Barbara Boxer and Ms. Dianne Feinstein, urging them to work and vote against any FISA amendments that would offer retroactive immunity to telecoms companies such as AT&T that willingly participated in the illegal warrant-less and wholesale wiretapping of American citizens.

The Senior Quisling from California, Ms. Feinstein, voted in the Senate Intelligence Committee for a FISA amendment that would grant retroactive immunity to AT&T et al. for their illegal activities. The Democratic leadership (an oxymoron!) chose to introduce the Intelligence Committee version on the Senate floor, rather than a similar one from the Judiciary Committee that was distinguished from the other by its lack of retroactive immunity for the telecoms companies. The Senior Quisling voted for cloture but against the final bill on the floor. The Senior Quisling sent me a snail-mail form response attempting to justify her position. Herewith are excerpts from my response to her anemic defense of her indefensible position.
  • The telecoms companies are not mom-and-pop operations without adequate legal counsel.
    All of the telecoms companies who blithely complied with the government and allowed warrant-less wiretapping have large legal departments and high-powered, knowledgeable counsel. It was their duty to the law and their obligation to their American citizen customers (at least) to ensure that they were acting within the law.
  • At least one telecoms company, Qwest, refused to allow the warrant-less wiretapping.
    Presumably this decision was based on the advice of counsel and the lack of court-issued warrants.
  • There are some 40 lawsuits pending against the telecoms companies for their illegal cooperation with the government and allowing the en masse warrant-less wiretapping of American citizens.
    Retroactive grants of immunity to those telecoms companies that went along with the warrant-less wiretapping would render these suits moot, prevent the populace from knowing the full details of the telecoms companies actions in this matter, preclude the courts from ruling on the legality or lack thereof, of the actions of the administration and the telecoms companies.
  • Let the regular courts, not secret ones such as FISA courts, decide whether the cooperating telecoms companies acted in good faith, even if outside the law, in complying with the administration's blandishments.
    Your Senate colleagues on the Judiciary Committee proposed an alternate bill that did not include retroactive immunity for the telecoms companies. The Democratic leadership of the Senate chose to introduce the flawed alternative from the Senate Intelligence Committee instead.
  • Your Senate colleague Senator Christopher Dodd (D-CT) publicly vowed to filibuster any FISA amendment that included retroactive immunity to the telecoms companies.
    By voting for cloture, you not only chose to end debate on the bill, but you also chose to preclude this.
Now to the arguments you make in favor of your actions.
  1. “The legislation to amend the Foreign Intelligence Surveillance Act of 1978 (FISA) ... was written by the Senate Intelligence Committee and approved by a vote of 13-2, would provide immunity for such companies ...”.
    Alternate legislation that did not include immunity was approved by the Senate Judiciary Committee. Strangely enough you are a member of that Committee as well.
  2. “.. the Executive branch provided letters ... directed or requested assistance and noted that the assistance was ... legal.”
    As I have noted, the telecoms companies have large legal departments and can and do avail themselves of the best legal advice. Since when have “Executive branch” “assurances” served as an adequate substitute for judicial warrants? Obviously Qwest for one did not believe that the Constitution, the Fourth Amendment, or the rule of law had been suspended.
  3. “I offered an amendment on the Senate floor that would limit this grant of immunity .. [by secret FISA courts to] assistance [that] met legal requirements, or that a company had a good faith, reasonable belief that the assistance was legal.”
    The regular, non-secret courts can already take such considerations into account. Why not let these courts decide whether the telecoms companies acted reasonably and in good faith in acting on the basis of “Executive branch .. assurance[s]” rather than court-issued warrants?
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