Senate’s Version of FISA Dangerous and Ill-Conceived (Rep. Jerrold Nadler)

I am disheartened that the Senate passed its dangerous and ill-conceived version of the Foreign Intelligence Surveillance Act (FISA) on Tuesday. Not only does this bill grant sweeping powers to an Executive who has proven to be too reckless to be trusted with unfettered authority, but it also issues blanket immunity for the possible illegal actions of telecommunication companies.

The most repugnant provision of the Senate’s FISA bill grants immunity to those telecommunication companies that gave in to the pressure exerted by the President and allowed government agencies to wiretap domestic communications without a warrant. There are only two possible explanations for this violation of our privacy. Either the telecom companies nobly and patriotically assisted the administration in protecting Americans against terrorism or the telecom companies knowingly participated in a criminal conspiracy in violation of the law, aiding and abetting a lawless administration to violate Americans’ liberties and privacy rights against the Constitution and against the FISA act. I believe it is the second. But it’s not up to me or up to anybody in Congress to decide that. That’s why we have courts; courts determine questions of law and fact. I have long said that it is not the place of Congress to usurp the responsibility of the courts. If the Senate bill becomes law as written, courts will never be allowed to determine what telecommunication companies did and whether their actions were permissible under the law. There are too many questions that have been left unanswered by the Bush Administration and this grant of immunity only further ensures that these answers remain hidden.

The House has already passed a FISA bill that would reinforce the mission of the FISA Court with respect to electronic surveillance programs. It clarifies that foreign-to-foreign communications do not require court approval and it requires FISA warrants when targeting domestic communications or Americans abroad. Further, it includes my amendment increasing judiciary oversight of the FISA Court’s surveillance programs. Finally, it does not shield telecommunication companies from the courts, so that the American people can finally learn the extent to which our right to privacy and due process has been violated. The principles of this bill should serve as the foundation for any FISA legislation since it balances our civil liberties and our national security.

Yesterday, the House considered a bill that would have given both chambers three more weeks to work out our differences by extending the law under which the FISA court currently operates. Unfortunately, it did not pass. The American people deserve a deliberation worthy of their basic civil rights. The President should not be allowed to do what he wants without having to account to anyone and we should not give him the cover to do so.