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FISA: The Game of Hardball Continues

By January 29, 2008

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Should Congress Give Telecoms Retroactive Immunity?
On Monday, Democrats prevailed in the current game of hardball over how much leeway to give the White House in its wiretapping program -- and whether or not telecom firms should be exempt from liability for acquiescing to White House demands for warrantless taps that have subsequently been ruled unconstitutional by the courts.

The Senate can be a procedural nightmare, as evidenced by the fate of this FISA (Foreign Intelligence Surveillance Act) legislation. Buckle up, the ride is bumpy.

Republicans wanted to force an immediate vote on a bill approved by the Senate Intelligence Committee, chaired by Sen. Jay Rockefeller (D-WVA). Rockefeller urged fellow Democrats to block the vote because it would prevent amendments from being offered that would, among other things, try to strip the telecom immunity provision.

Related: What is cloture? ; What is FISA? ;
What is the wiretapping issue? ; Getting To Know Your Government: The Senate

Why Sen. Majority Leader Harry Reid chose to move the Senate Intelligence bill (with immunity) instead of the Senate Judiciary bill (without immunity) is an exercise best left to the imagination of the reader.

If the Senate does nothing, then the six-month period of legal warrantless wiretaps -- born in August 2007 under duress -- sunsets on Friday. The nation would revert to the original 1978 law (which was written to combat government surveillance abuses). Remember: the White House need only get retroactive FISA Court approval; in other words, the law allows "act first, ask later."

The Bush Administration vows to veto any extension of the stopgap measure -- the Protect America Act -- passed in August. There is also the vow to veto if there is no immunity for telecommunications giants.

Take a look at how FISA review has been invoked since 1979. There is a clear trend over time towards more requests for surveillance. In the 80s, FISA requests averaged about 520 year; in the 1990s, 675. Bush Administration requests doubled from 1,005 in 2000 to 2,181 in 2006. (Data for 2007 are not yet available and these numbers do not include warrantless taps.) Also, prior to 2000, the FISA Court had not modified a single White House request; in 2006, the Court modified 73.

Then recall that former Qwest CEO Joseph P. Nacchio (convicted of insider trading) "said the NSA approached Qwest more than six months before the Sept. 11, 2001, attacks ... [suggesting] that the Bush administration was seeking to enlist telecommunications firms in programs without court oversight before the terrorist attacks on New York and the Pentagon." Qwest, by the way, declined to play, unlike other telecoms.

And Greenwald says that Nacchio's court filings reveal that:

The cooperation between the various military/intelligence branches of the Federal Government -- particularly the Pentagon and the NSA -- and the private telecommunications corporations is extraordinary and endless....

There simply is no separation between these corporations and the military and intelligence agencies of the Federal Government. They meet and plan and agree so frequently, and at such high levels, that they practically form a consortium. Just in Nacchio's limited and redacted disclosures, there are descriptions of numerous pre-9/11 meetings between the largest telecoms and multiple Bush national security officials, including Paul Wolfowitz, Condoleezza Rice, NSA Director Gen. Michael Hayden and counter-terrorism advisor Richard Clarke...

[The] Nacchio documents leave no doubt that these telecoms were viciously competing with one another for the right to cooperate with the Federal Government -- long before 9/11 -- because they were hungry for the multi-billion dollar contracts for this work.

Now, what do you think about expanded wiretapping powers ... and retroactive telecom immunity?

Monday's Vote
It was a straight party-line roll call vote. Those not voting: Coburn (R-OK), Dole (R-NC), Ensign (R-NV), Harkin (D-IA), Lieberman (ID-CT), McCain (R-AZ) and Nelson (D-FL). Nelson is the sole Democrat in this bunch to vote in August for legal warrantless wiretaps.

Also, see

On the Web: Wiretapping Debate Resumes Tuesday, Why Congress Must Renew FISA Immediately, ACLU on FISA, Telecom amnesty would forever foreclose investigation of vital issues

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