Delco Times - Sestak, Dems Catch Flak for Flip-Flopping on Wiretap Bill

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Delco Times - Sestak, Dems Catch Flak for Flip-Flopping on Wiretap Bill

The U.S. Senate recently sent a piece of legislation to the president that, if signed into law as expected, will shape the nature of eavesdropping in this country for at least the next four years.

Democrats in both the House and Senate have taken a lot of lumps over what is presumed to be the new law of the wiretapping land, an updated version of the Foreign Intelligence Surveillance Act of 1978 that runs to 2012.
U.S. Rep. Joseph Sestak, D-7, of Edgmont, was certainly not spared. He was one of the 293 to vote for the FISA Amendments Act of 2008 (H.R. 6304) on June 20, though most Democrats were among the 129 opposing it. Just one Republican, Tim Johnson, of Illinois, joined that opposition, with 188 Republicans approving the bill.

Sestak's Republican challenger in the November general election, W. Craig Williams, had issued a release in March bashing the congressman for "blatantly playing partisan politics" and "putting special interests ahead of national security" when he and other House Democrats blocked the package of a previous FISA bill that had passed the Senate with strong bipartisan backing.

That bill included blanket immunity for telecommunications companies that provided information to the National Security Agency without going through a special 11-member court set up under FISA rules.

Under the 1978 law, only a FISA court warrant grants the government the privilege to view communications intercepts of Americans, but President George W. Bush has argued a congressional declaration giving him wartime powers and his stature as commander-in-chief under Article II of the U.S. Constitution supercedes that law.

Williams issued another release last week bashing Sestak for passing this version of the bill and caving to Republican demands. Which is, of course, the nature of the politics game: Damned if you do, damned if you don't.

"While Joe Sestak may be trying to save face and claim that this version of the bill had substantial changes on the issue of immunity for telecommunications companies, this vote is in reality a victory for Republicans," said Williams. "We were right on this issue from the beginning and Joe Sestak and other Democrats ultimately had to cave in to right reason and public pressure."

Sestak contends he got everything from this bill he had said from the start that he wanted, which was to expand immediacy provisions under FISA while giving an outside court review powers over the process by which the telecoms provided information to the government. The bill also includes a semi-annual audit of that process going forward, which Sestak said would ensure it is being done properly.

"It does not give immunity to the telecoms," Sestak said. "We want to understand what occurred, why they did it, what information was given, before we give them what they want. This bill ensures that there is in a court, an outside court, a review of what was done, and the judge can permit civil suits to be pursued."

Under the language of the bill:

"(A) civil action may not lie or be maintained in a Federal or State court against any person for providing assistance to an element of the intelligence community, and shall be properly dismissed, if the Attorney General certifies to the district court of the United States in which such action is pending that ... the assistance alleged to have been provided ... was in connection with intelligence activity involving communications that was authorized by the President during the period beginning on Sept. 11, 2001, and ending on Jan. 17, 2007, and designed to prevent or detect a terrorist attack, or activities in preparation of a terrorist attack, against the United States (or) the subject of a written request or directive ... indicating that the activity was authorized by the President; and determined to be lawful."

That section has many online pundits apoplectic. Glenn Greenwald, in his blog on Salon.com, has been heavily critical of House Democrats over the past week.

"All the attorney general has to do is recite those magic words - the president requested this eavesdropping and did it in order to save us from the terrorists - and the minute he utters those words, the courts are required to dismiss the lawsuits against the telecoms, no matter how illegal their behavior was," reasons Greenwald.

Or as Slate.com contributor Patrick Radden Keefe put it: "For the suits against them to be 'promptly dismissed,' they must demonstrate to the judge not that what they did was legal but only that the White House told them to do it."

The argument from the right has always been that Democrats simply wanted to sue "deep-pocket" telecoms to satisfy their constituents and placate groups like the American Civil Liberties Union.

Republicans espoused the fear that telecoms would refuse to cooperate with the government in the future if they could be sued for doing so. But a successful civil suit would suggest that it was reasonably proven to a federal judge that the companies had knowingly broken the law.

On the flip side of that, if the argument that these companies were simply following orders from their government in good faith was to hold up in court, there would likely be no consequence for the telecoms, but the argument would revert back to exactly what powers the president is provided during wartime.

Daily Kos blogger Joan McCarter had this to say: "This election should be about change after the Bush administration, and I think that this vote shows a real jarring contradiction in this message. From the outside, it really looks like business as usual. You know - 'Congress bought and paid for by the telecoms.'"

As Greenwald points out, in the first three months of 2008, AT&T spent $5.2 million in lobbyist fees. Verizon spent $4.8 million and Comcast spent $2.6 million, a total of $12.6 million in three months from just three telecoms.
There is a clause in the bill for judicial review, which states: "A certification ... shall be given effect unless the court finds that such certification is not supported by substantial evidence provided to the court. ...In its review of a certification ... the court may examine the court order, certification, written request, or directive ... and any relevant court order, certification, written request, or directive submitted."

Sestak said the bill ultimately acts as a "first step" for the 40-odd civil suits alleging illegal wiretapping by telecoms, which are pending in the same court that will be given jurisdiction through this law to review the attorney general's assessments.

But most pundits agree with Williams that the vote was a cave-in from House Democratic leadership cowed by the idea of being labeled "weak on terror."
"The Democrats' most pathetic bit of self-deluded posturing involves the inclusion of a clause suggesting that the new law represents the 'exclusive means' by which 'electronic surveillance and interception of certain communications may be conducted,'" writes Keefe. "But, then, FISA always said that it was the 'exclusive means.' And in 2001, pretty much on a whim, the president set it aside.

"So for those of you keeping score back home, the Democratic leadership is patting itself on the back for including in the new law a provision that was already in the old law - and which the Bush White House chose to ignore."
"It is totally insufficient to confer immunity merely because the companies received written requests from the government saying the program was legal," said U.S. Sen. Arlen Specter, R-Pa., on the Senate floor.

Specter castigated the bill's limitations, noting the court is not required to find that the requests were lawful, or that the surveillance itself was constitutional.

"The bill leaves the president with his position that his Article II powers as commander-in-chief cannot be limited by statute," he said.

"That is a sound constitutional argument, but only the courts can ultimately decide that issue, and this bill dodges the issue by limiting judicial review," said Specter.

Another section of the bill concerning phone calls and e-mails entering and leaving the country through U.S. telecom switches is also causing a lot of concern among critics.

"When authorities want to target purely domestic communications, they still have to apply for a warrant from the FISA court (albeit only after a weeklong grace period of warrantless surveillance)," said Keefe. "But where communications between the United States and another country are concerned, the secret court is relegated to a vestigial role, consulted on the soundness of the 'targeting procedures,' but not on the legitimacy of the targets themselves ... Provided that the 'target' of the surveillance is reasonably believed to be abroad, the NSA can intercept a massive volume of communications, which might, however incidentally, include yours."

There are also numerous portions of the bill not receiving much attention or debate, such as allowing wiretapping to be conducted immediately on any suspected terrorist threat without a FISA court warrant; extending the time necessary to come to the FISA court for a warrant to seven days; allowing emergency surveillance to continue an additional 30 days while the FISA court makes its determination; including in the scope of coverage "proliferators of weapons of mass destruction;" and allowing for "basket" taping, meaning agents won't have to keep entering applications every time a name is added to a wire.

"A lot of people need to get deep into this bill and see that it is a good bill," insisted Sestak. "This bill has proper, stringent oversight and it gives the final determination to the court. There are differences of opinion, but what are the facts of the bill? That's how I voted, on the facts that are there (and) in my mind, this was a win."

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