The FISA Amendments Act: Protecting Our Country and Civil Liberties

On Friday, the House of Representatives adopted H.R. 3733, the FISA Amendments Act. This carefully crafted legislation gives our intelligence agencies all the tools they need to protect our country and also protects our fundamental civil liberties.

But, even before we were to consider the bill, we held a rare closed session to discuss surveillance legislation in a classified setting in light of Republican claims that they had important secret information. But those claims turned out to be false. Even behind closed doors, the Republicans were unable to provide any information that would support the overreaching changes sought by the White House.

The House passed legislation that gives our intelligence agencies all the tools they need to defend our country consistent with the Constitution. It helps make changes to the Foreign Intelligence Surveillance Act so that security and liberty are both protected.

Le me be clear about what our bill does not do. It does not require individual warrants for the targeting of foreign terrorists located outside the United States. For three decades, that has been the law, and it will still be the law under this bill. There is no dispute about this.

The bill maintains the traditional requirement of a warrant when our intelligence agencies seek to conduct surveillance on Americans. It also creates new authorities for the government to conduct electronic surveillance of foreign targets. But because some foreign surveillance may record conversations with Americans, the bill requires that when the Government proposes to undertake surveillance of a foreign group or entity, it must first apply to the FISA court. However, the bill states that in an emergency, the surveillance can begin immediately, and the court can consider the surveillance procedures later.

There is another thing that our bill did not do -- provide blanket, retroactive immunity to the telecommunication companies that assisted in the president's warrantless wiretapping program. Such a move would fly in the face of our notions of justice.

Over the last few weeks, we have heard countless assertions from the White House and Republicans in Congress that are false and misleading. They claim that we allowed the Protect America Act to expire -- when it was the Republicans who blocked attempts to extend that legislation temporarily. And they continue to claim that retroactive immunity for the telecom companies is necessary for the security of the country. But they have failed to provide any evidence for that claim -- even behind closed doors.

The telecom companies aided the administration's surveillance program. Some people -- American citizens -- believe their constitutional rights were violated, and brought suit against the government and the telecom companies. There are two narratives here. One is that the telecom companies patriotically aided the administration in protecting Americans from terrorists. The other is that the telecom companies conspired with a lawless administration to violate the Constitutional rights of Americans. Which of these narratives is correct is for a court to decide.

It is not the role of Congress to decide legal cases between private parties. That is why we have courts. If the claims are not meritorious, the courts will throw them out. But if the claims do have merit, we have no right to dismiss them without even reviewing the evidence.

We are told that the telecom companies should not be subject to lawsuits for doing their duty. But whether they were doing their duty, or abusing the rights of Americans, is precisely the issue. And that is a legal issue for the courts to decide.

In any event, the existing law, in a wise balance of national security and constitutional rights that this bill does not change, already provides absolute immunity to the telecom companies if their help was requested, and if they were given a statement by the Attorney General, or various other government officials, stating that the requested help did not require a warrant or court order and would not break the law. They have immunity whether those statements were true or not. They can rely absolutely on the government's assertions.

Indeed, Title II of this bill will allow the telecoms to show the courts, in a secure setting, if they were obeying the law or if they weren't. It will allow the telecom companies to assert their immunity in court, and to present the relevant documents and evidence to the court in a secret session that protects any "state secrets." The courts can then judge whether the telecom company obeyed the law -- in which case it has complete immunity -- or whether it did not.

If you put aside the rhetoric of the White House and the minority, it is clear that our bill properly balances security and liberty. It also demands that these extraordinary powers are used properly, and that they follow our laws and our Constitution. If the President is serious about protecting America, he should drop his objections to this bill.

Congressman Nadler is the Chair of the House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties.

Comments

[DavidJames]

Representative Nadler,

"Even behind closed doors, the Republicans were unable to provide any information that would support the overreaching changes sought by the White House."

Thanks for calling their bluff!

[hoopesaz]

What a shame. The White House assured those companies they were making a legal move. In good faith, acting in the interest of the countries security based upon what they were being told, they complied. Now the democrats will punish them. No, not punish them for breaking the law, but punish them for helping the government in a time of need.

Hope the government doesn't urgently need help from big business anywhere in the next 50 years. They're likely to get a "go to hell" response.

BAD move by congress.

[SamEllison]

Dear hopeless if you could read the post it says;
" It will allow the telecom companies to assert their immunity in court, and to present the relevant documents and evidence to the court in a secret session that protects any "state secrets."
You were saying?

[marignymitch]

Rep Nadler:

I'm pleased that finally after three days since its passage this legislation is getting an airing on HuffPost.

I'm also pleased that House Democrats are standing up to the Bush administration. 'Bout time. But I don't think we'll have to worry about a veto; pro-Bush Senate Democrats are likely to kill the House bill themselves and kick the president's version back to the representatives.

My senator, Mary Landrieu D-LA, is among the 20 Democrats in the upper house who support GOP telecom amnesty and cover for the president. I've written to her numerous times on the subject, urging her to oppose amnesty and protect the Constituion and Americans from their government. But I see little hope that she'll change her vote.

Her position, which appears to be fixed, is that Bush's warrantless wiretapping program was 'inappropriate' but the telephone companies should not be punished because 'they thought they had no choice but to comply' with Bush's requests. The fact that she is wrong on these counts doesn't seem to matter. The program wasn't 'inappropriate' it was illegal, and the telecoms and their fancy attorneys knew they weren't compelled to bow to Bush. The resolve of other Blue Dogs in support of Bush seems to be as firm.

So I'm not optimistic concerning the fate of this bill. I expect the Democrats to fold ultimately. But thanks anyways for the good work in the House on this one. When's the vote to impeach?

[GPRogueCowboy]

NEVER CAVE IN on the Immunity for the Telecoms since they knew the law and chose to ignore it. Your are correct to let the courts decide. Did the TeleComs break the law or did the White House break the Law?

[JohnFromCensornati]

Congressman Nadler,

I don't know if I should buy your spin on this bill or not.
For now, I'll give you the benefit of the doubt.
However, when the Senate goes the other way, I'm sure the House will follow suit and give King George W what he wants.
The Congress has given us no reason to expect anything else.
Lucky for you all that Americans have *limited* attention spans.

[jstock]

Thank you for finally standing up for our Constitution by standing AGAINST Bush/Cheney (both of whom should be impeached. But that's another story.) Thanks again.

[ranchomerced]

But wait; dont banks have immunity for turning in financial info to the government FBI, IRS etc? Seems kind of hypocritical how is this any different other than a political grandstand for the liberals. I dont see anyone complaining about the intrusion of privacy with the IRS...

[bronceye]

The White House stance of immunity for the telecoms is a cloak over the truth. The truth of their desires is to provide immunity for the covert operations of the administration and nothing else. Who will do a "scooter" for bush and cheney if a dem is elected? God, Ford pardoned Nixon, George I pardoned Reagan and his cronies(also, himself by stopping the investigation). Now, who will pardon these anti law slugs. Only the democratic party's lack of skills and logic ensures the re-election of repub presidents. They are obviously anti American. Their new world order is a caste system and they will achieve it by protecting us from something that doesn't really exist.

[Lemeritus]

Congressman Nadler,

I'm troubled by the following: "...absolute immunity to the telecom companies if their help was requested, and if they were given a statement by the Attorney General, or various other government officials, stating that the requested help did not require a warrant or court order and would not break the law. They have immunity whether those statements were true or not. They can rely absolutely on the government's assertions."

Do you actually mean to say that if the executive and his appointees act above the law -- which is to say if Bush and his revolving door of sycophantic attorneys general determine which laws should and should not be followed -- the American people can no longer look to the law and have no recourse under the law? Are you saying "It is what the President says it is"? If so -- and with all due respect to the job you've done -- why do we need to continue the illusion of Congress; shouldn't you guys all just go home and let The President do his job?

[GnitenGoodLk]

Good catch. I noticed that too. If my understanding is correct, it protects us from telecoms indiscriminately spying on customers. No official gov letter, no tapping. It reverts to the 72 hours to get a warrant clause. If the government fails to do that it leaves itself open to lawsuits, not the telecoms.

The retroactive immunity was crucial, and they stopped it. It will get vetoed. I wish we could veto Bush/Cheney.

[Lemeritus]

There are no words in the English language to express the frustration I feel reading "If the government fails to do that it leaves itself open to lawsuits..." Perhaps so. But the government has proven itself demonstrably slippery in this regard -- a plaintiff must prove standing and, to do so, must prove damage. How can that be done when every piece of relevant evidence is deemed unavailable by reason of national security?

I know I'm preaching to the choir, but I cannot tell you how furious this makes me.

[syllepsis]

"In any event, the existing law, in a wise balance of national security and constitutional rights that this bill does not change, already provides absolute immunity to the telecom companies if their help was requested, and if they were given a statement by the Attorney General, or various other government officials, stating that the requested help did not require a warrant or court order and WOULD NOT BREAK THE LAW."
It is this last clause that is the key one.
It means that the AG is bound to determine that the executive order is lawful. This in turn requires Congress to have subpoena power over the AG, and to impeach him/her if the AG violates the law, and to declare the agreement enjoining telecoms to spy null and void, and the agreement becomes no guarantee of the telecoms against demands of a lawless AG or president.
In which case, we are back where we started- the President/AG must follow the law, and the telecoms cannot assume that the President /AG will follow it..
There is no way, short of impeachment hearings, to determine of the AG has authorized the telecoms to break the law, because the AG would never disclose evidence that he/she had done so willingly, and would claim executive priviledge in such a case. That is why we can never hear again from a Speaker that impeachment is off the table.
This revision in fact provides no recourse for telecoms to break the law, but only if Congress is willing to impeach the AG/President.

[NickOhio]

Rep. Nadler, I salute you for your work on this bill.

This issue is incredibly important to the fabric of our Constitution. without the respect and adherence to the rule of law and our rights as citizens, we have no country.

I wish you all the best in your quest on this issue. Please help convince the Senate and the group of Reps who will be involved in an conference committee to reach an agreeable solution, that our country depends on your finely crafted bill to keep our country safe. Safe, not only from those who would wish us harm, but also safe from those inside our own country and govt. that would wish harm to our Constitution and rule of law. Do not compromise yourself and your bill. Sometimes, politics demands a steadfast adherence to principals, without swaying off-course... this is one of those times.

[MidwestBlue]

Rep. Nadler, I read the following at "Downwithtyranny:"

"Sources in the House tell me that Pelosi, Hoyer and Emanuel promised the Blue Dogs that they would be on the reconciliation committee with the Senate charged with hammering out a compromise."

Is this true?

[Not Blind]

Dear Rep. Nadler,
It's heartening to finally see some of our elected representatives thinking about the consequences of their actions upon the American people. It's too bad our legislators and representatives did not think about the consequences of authorizing the Patriot and Protect America acts before-hand.
While feeling somewhat elated for this small victory, I can foresee that eventually Congress will cave into the demands of our Dictator-In-Chief. I doubt Pelosi, Reid, Waxman, Dodd, Conyers and others will be able to stem the inevitable tide of total control by this administration. In 7 years, only once was a veto overruled.
It's not a matter so much of having the votes, but having the principles and will to stand up to such abuses. We allowed Bush to lie 935 times as justification for the war in iraq. No one in Congress checked the facts. Only Joe Wilson went and found no credible evidence of nuclear weapons ambitions or materials on the part of Iraq. Of course, his wife, a CIA agent, was subsequently outed in retaliation.
The illegal, warrantless wiretapping of Americans began in February, 2001, not in the aftermath of 9/11 according to credible sources. First, Bush lied that there was any wiretapping. Then he lied about having proper warrants for such surveillance. Then, he said it was in response to the terrorist attacks of 9/11. Now, we know the program began in February, 2001, immediately after this administration took office.
From whom are we safe? We still haven't captured Bin-Laden, despite many opportunities to do so (largely due to our diversion of resources in Iraq). At home, we have a Constitution that has been rendered impotent by those who swore oaths to protect and preserve it. The current and previous Attorneys General have served more like the President's private counsel, finding loopholes to declare legal everything done. They have not served as Constitutional or independent justices. We now have, with Congressional approval: torture, denial of due process, a government that can illegally sieze and search people and their posessions, yet immunize murderers (Blackwater mercenaries last September). We have lost moral authority and our place as leader among free nations in the world.
Just recently, our government issued statements abhoring lega, civil and human rights abuses in other countries. Unfortunately, many of those are occuring within our own borders. Not only do we torture, rape, murder, illegally detain and spy upon our citizens, we have become the world' biggest hypocrites.
We need moral, principled leadership, not more fear-mongering, threats, intimidation, lies and secrecy. What's happened to this country since 9/11 is far worse than two crumbling towers. Our entire system of checks and balances within government, our judiciary, the legal, civil and human rights of our people have been compromised. Terrorism is the use of fear, intimidation, threats against people to force their submission to one's will. Exactly who is the terrorist? Under this definition, Bush is as bad, if not worse than Bin-Laden. He's authorized the deaths, disabilities and injuries of hundreds of thousands in the name of security. He's not made us safer as a result of the harsh restrictions of his regime. We're more vulnerable than ever.

[Lemeritus]

Well put.

[desmirl]

For a President who thinks the Constitution of the United States of America is "...just a god-damned piece of paper..." having to deal with a congress who won't roll over and play dead must be traumatic. I wonder if, after he leaves office, Bush will file for treatment for PTSD. Thank you, democrats, for standing up to our own American version of Caligula.

[mgloraine]

Well done (for the most part) Congressman!

I am, however, still quite concerned with the "spy now, warrant later" clause. What would constitute an emergency which couldn't wait a few minutes to possibly a few hours to implement? What set of circumstances would put the means of surveillance (i.e., placing a tap or starting a trace collection, or whatever) in a position to be installed or activated MORE QUICKLY than the fairly short time it should take to call the judge and get a warrant, even if you have to drag His or Her Honor out of bed at 3AM??

Considering the track record of the present administration, this looks like an opportunity to start spying today and maybe tell you about it next year...or maybe not at all! If they get caught, well, it was an "emergency" and they were just on their way down to talk to the FISA folks about it...

[Lemeritus]

My understanding is that there was always a "spy now, warrant later" provision in the FISA law intended to create agility. I did not have a problem with that provision then and do not now. What I absolutely object to -- and no Republican b.s. about protecting the country can change my mind -- is "spy now, warrant never". We will stipulate that we live in dangerous times but we need not live in lawless times.

[CellarDoor]

There was; FISA allowed for a 72 hour period to expire before the government agency doing the monitoring requested a warrant. And honestly, FISA was fine as it was outside of needing a verbiage update for our current technologies. Our current administration insisted that keeping Americans safe was priority number one...unless the Dems don't write up a bill giving the Telcom companies retroactive immunity. Bush has already said he will not allow any vote to pass veto that does not provide immunity. So it's Telcom companies legal protection first (scary fines and jail-time)...safety of Americans second. Good thing the "liberal" media is all over that! So when the US government protects companies before Americans, does this qualify as fascism?

Who was the pundit who said "Liberty isn't worth much if you're dead!". Only took 220 years to turn into complete sniveling cowards begging for mercy as they piss themselves. Meanwhile a 19 year old kid fights for his or her life in Iraq, showing more courage in a single drop of sweat than these pseudo-intellectual morons have in their entire history.

[dignityandhonor]

Write another entry when you are telling the American people that your House is finally bringing impeachment charges against Bush/Cheney. Then I will be impressed with the job you are doing.

[schatsie]

It's as easy as this.....The Bushie/Repugs deserve privacy and the rest of us don't...

Remember how the Repugs tapped into the Democrats emails....