Sen. Dianne Feinstein's amendments to FISA
by Robert Cruickshank, for the Courage Campaign
UPDATE: Thursday, January 24, 12:35 P.M.: Senator Feinstein's office has responded. Scroll down for their response and my reply.
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The Feinstein “Compromise” Amendments
1. There is no chance that Bush and the Republicans will agree to any compromise short of complete immunity for telecoms – making compromise impossible.
Feinstein’s amendments do two things:
1) Strengthen language in Senate Intelligence Committee’s (SIC) bill to ensure that the FISA court has exclusive jurisdiction over foreign intelligence surveillance on US soil. This is not a particularly objectionable amendment.
2) Would have the FISA court itself determine whether the telecoms deserve immunity. This is not a good plan, as discussed in point #2 below.
What Feinstein is aiming to do here is “finding middle ground between the all-or-nothing approach on immunity,” as her spokesman told The Hill.1 She wants a compromise on the matter and believes one to be possible. If her amendments do not pass, the Senate will then be left with Arlen Specter’s “compromise” to make the government the defendant in any cases brought against telecoms over NSA spying. As discussed in point #3, this does not provide adequate justice to the public nor does it avoid the problems of granting immunity.
It is difficult to imagine Senate Republicans agreeing to Feinstein’s amendments. They have repeatedly acted as proxies for the Bush Administration, especially since the Democratic takeover of Congress in 2007. Senate Minority Leader Mitch McConnell has repeatedly declared his belief that telecom immunity is essential to any FISA bill, and has never shown an interest in breaking with the Bush Administration’s insistence on full telecom immunity. McConnell did not support Harry Reid’s trial balloon proposal of an 18-month extension of FISA, for example, suggesting he is not interested in compromise. Since neither Senate Republicans nor the Bush Administration have shown any interest in compromise at any time since January 2001, it is extremely difficult to imagine how this specific compromise can succeed.
2. The "good faith" amendment does not provide sufficient safeguards for the public's rights and for the rule of law.
Even if the “compromise” Feinstein amendment on immunity – kicking it to the FISA court – were viable and could be signed into law, it’s not an approach that civil libertarians endorse. The ACLU has been vocal in their opposition to both the Feinstein and the Specter amendments:
“Unless Congress wholly rejects [the] executive privilege or state secrets claims, there are legal hurdles that could prevent the full hearing of the matter in federal court,” said Tim Sparapani, ACLU senior legislative counsel. “We also oppose having the FISA court making the good faith determination unless outside parties are allowed to argue in front of the secret court, which has never happened before. Otherwise, only one side is represented.”2
FISA is a secret court. Of the many thousands of requests for wiretaps that it has considered over the last 30 years, it has rejected a small handful – perhaps as few as five. This is not the same as a court of law, where the public has the right to examine evidence and file their own claims. FISA courts do not provide for the protection of basic rights. And to allow the FISA courts to determine the legitimacy of telecom actions is to take this crucial decision out of the hands of the courts, therefore undermining the rule of law. Feinstein’s proposal should be rejected on principle alone.
UPDATE (posted at 11 p.m. PT, Wednesday, January 23): Senator Feinstein has put out a press release describing her proposed amendments, which unintentionally shows just how damaging her gambit is to the cause of upholding the rule of law and Americans' rights. It also details her immunity amendment more clearly. It would lay out a series of three tests that the FISA court would use to determine whether immunity should be granted. Quoting from her explanation of the second test:
"The FISA Court would examine whether companies that provided assistance to the government without a certification did so in good faith and pursuant to an objectively reasonable belief that its compliance was legal."Although the first test asks whether the telecoms' assistance to the NSA "met the legal requirements," under Feinstein's amendment immunity could be granted if it passes the second test - "good faith" - even if the telecom in question did not pass the first test. As the senator explains (italics mine):
"If the FISA Court determines that the company did not provide assistance, or that the assistance provided met the legal requirements or was reasonable and in good faith, the immunity provision would apply."
Not "and," but "or." In other words, "good faith" would be sufficient for FISA to grant immunity.
As described above, we already knew that this amendment was unacceptable because it gave a secret court, which the public has no ability to access, the power to determine whether our basic legal rights will be upheld. Now we learn that under Feinstein's amendment it will be very easy for the FISA court, which virtually never turns down a government wiretap request, to grant telecom immunity. The telecoms will have every reason to claim they acted in good faith, and we know that the Bush Administration will back them up. This amendment is a recipe for immunity through the back door - or more accurately, through a secret court.
3. Specter’s amendment is not acceptable either, for the same reasons as Feinstein’s proposal.
In the likely event that Feinstein’s amendments fail, the Senate will then consider Arlen Specter’s proposal to make the government the defendant in the lawsuits against telecoms. This amendment is not likely to pass the Senate either, as the Department of Justice has already come out against it. But even if the DoJ agreed it would still be a bad proposal. Making the government the defendant would not provide Americans with more protection of their basic rights, nor would it uphold the rule of law. It would let the telecoms off the hook for their own part in breaking the FISA law – they would face no consequences and hold no liabilities. Further, if the government were the defendant, it would potentially have greater access to state secrets privileges and other legal protections that corporations do not possess in the arena of national security. The ACLU and other groups oppose the Specter amendment and Feinstein must know that Congress should not interfere with the legal system and the rule of law.
4. Ultimately Feinstein and all the other Senate Democrats are going to have to choose between one of two sides – either stand with Senators Dodd and Feingold for our rights and the rule of law, or stand with George W. Bush and Dick Cheney and their disregard for the law, the Constitution, and America’s basic rights.
As Tim Tagaris and Glenn Greenwald have explained, this debate will almost certainly reach the point of a filibuster. What is likely to occur is this:
-Feinstein’s amendments will come to a vote. They need 60 votes to survive a likely Republican filibuster. It is likely that these amendments will fail.
-Next, Specter’s amendment will come to a vote. This has broader support, but is still likely to fall short of the 60 votes needed to break a GOP cover-Bush’s-ass filibuster (there are 49 Republicans, 50 if you include Lieberman. It’s not likely that there will be 9 or 10 of them who will vote for Specter’s compromise).
-Since Harry Reid chose to bring the SIC’s immunity-providing version of a FISA bill to the floor, and not the Senate Judiciary Committee’s (SJC) immunity-denying version, Dodd and Feingold will have to try and strip immunity via amendment. Again this is going to face a GOP filibuster and Dodd and Feingold are likely to fail here.
-This leaves Dodd and Feingold with their last defense – a filibuster of the SIC immunity-providing bill. Here they are going to need every Senate Dem to stand with them – literally and figuratively. By this point the only two options will be between giving Bush exactly what he wants, or standing firm and saying no.
5. As Bush and the Republicans will not accept a FISA bill without immunity, compromise is not possible. Democrats therefore have two options open to them – give Bush his immunity, or refuse.
Congressional Democrats have consistently tried to avoid open confrontation with Bush, even when the cost is our Constitution and our basic rights. There is no avoiding this one. Senator Feinstein has only one choice open to her if she does not want to give Bush everything he demands. She must vote against telecom immunity, and support Senators Dodd, Feingold, and any other Senator who chooses to stand up - literally and figuratively – against this injustice.
1 http://thehill.com/leading-the-news/doj-aclu-cool-to-specters-fisadeal-2008-01-17.html
2 http://thehill.com/leading-the-news/doj-aclu-cool-to-specters-fisadeal-2008-01-17.html
UPDATE: Posted 12:35 P.M., January 24.
Scott Gerber, Senator Feinstein's Communications Director, has responded to our criticisms of the "good faith" amendment.
Mr. Gerber's response is included below. My rebuttal is included interstitially, after each of his indented points:
Today's post on Senator Feinstein's amendment to the FISA bill contains a number of serious and misleading factual errors. I write to correct the record, and I hope that you will update your post with this information.We are currently waiting on the ACLU's response on the Feinstein amendment, though it is correct they have not been "vocal" in opposition to it to this point.
1. You write the ACLU has been "vocal in their opposition" to the Feinstein amendment. Not true. They have not taken a position on the Feinstein amendment.
2. Additionally, you quote Tim Sparapani, ACLU senior legislative counsel, as evidence of the ACLU's opposition. This quote – which appeared in The Hill, not Roll Call – is not in reference to the Feinstein amendment, but to the Specter amendment.
"The ACLU, meanwhile, has condemned the Specter amendment because it believes the measure leaves some loopholes open to the government." (The Hill, DoJ, ACLU cool to Specter's FISA deal, 01/17/08) http://thehill.com/leading-the-news/doj-aclu-cool-tospecters-fisadeal-2008-01-17.html
We did not claim this quote applied to Feinstein's amendment directly. Instead we used it to illustrate the reasoning behind our own opposition to Feinstein's amendment. More on this below. Mr. Gerber is correct that the email sent out to Courage Campaign members quoted "Roll Call" instead of "The Hill". It is our mistake.
3. As for the content of the Sparapani quote, it does not apply to the Feinstein amendment providing independent judicial review of immunity claims.
He said: "Unless Congress wholly rejects [the] executive privilege or state secrets claims, there are legal hurdles that could prevent the full hearing of the matter in federal court," said Tim Sparapani, ACLU senior legislative counsel. "We also oppose having the FISA court making the good faith determination unless outside parties are allowed to argue in front of the secret court, which has never happened before. Otherwise, only one side is represented."
Let me explain how it doesn't apply:
· First, the Feinstein amendment specifically rejects the state secrets claim.
· Second, the Feinstein amendment specifically allows outside parties to argue their case in front of the FISA Court. The court's ruling can also be appealed to a higher court.
But even if it allows outside parties (an even then only those who have already filed lawsuits, disempowering other Americans who have not yet filed), and even if their ruling can be appealed, that is still not the same as public, open courts handling this issue. And further, it would still potentially allow immunity - which we still flatly oppose - and would still use the discredited "good faith" determination to grant such immunity. The deck would remain stacked against plaintiffs and against the rule of law.
Bottom line: This amendment preserves independent judicial review of the telecom company's immunity claims. If it can be shown that the companies were not acting based on legal government certification and not in good faith, then their claims of immunity can be denied by the Court.
In yesterday's press release they said "OR" in good faith. Which is it - "and good faith" or "or good faith"?
This is a reasonable alternative. It adds court review of any immunity. It allows the companies and the plaintiffs to make their case before this federal court skilled in intelligence.
We strongly disagree that this is a reasonable alternative. It is wrong for the FISA court or the US Senate, directly or indirectly, to grant or make possible immunity for illegal activity. No matter how Feinstein dresses this up, this is fundamentally designed to give the appearance of protecting legal rights while setting up a process that is virtually certain to provide immunity anyway.
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