Photo of Kit Bond (right) with Rudy Giuliani courtesy of Flickr user Rudy Giuliani

A couple of weeks ago, rerports surfaced about a Bond-negotiated “compromise” FISA bill and later, that Bush was negotiating a similar compromise directly with Democrats in the House. To refresh your memory, FISA is the law that governs US government surveillance of American citizens for national security purposes (It is legal for the US government to spy on non-US citizens without a warrant.) It set up a secret court to approve or deny such government surveillance, and allows the government a 48 hour head start on surveillance before applying for a FISA warrant. We found out in 2005 that Bush had been spying on Americans without warrants from the FISA court, and Bush has been trying to rewrite the law ever since.

Of particular interest to Bush is passing into law immunity for the telecommunications companies who cooperated with his illegal spying. If immunity is passed, the telecoms could no longer be sued for their breach of the law. It’s not just about punishing them; if interested parties can’t sue for discovery, telecom immunity will cut off a major possibility to discover just how extensive Bush’s lawbreaking is.

The “compromise” provision would grant partial immunity to the telecoms in question. It would push the question of wrongdoing instead to the FISA court, who would then only consider whether the telecoms had been properly instructed by the Bush administration, not whether the spying itself was illegal. In other words, they get off the hook as long as they have a permission slip.

Please call your congressman about this. They need to hear that how awful it is, and they need to tell House Majority Leader Steny Hoyer that this is a bad deal. Democrats are the majority now and stand a good chance to gain the White House next January; there’s no reason to cave in.

And please call Claire McCaskill and Kit Bond, too. They need to know that we’re watching them. McCaskill in particular needs to know, as she’s been terrible on this in the past, and she’s currently a media darling due to her prominent (and excellent) advocacy for Barack Obama.

Senator Kit Bond: (202) 224-5721

Senator Claire McCaskill: (202) 224-6154

To help you make your case on the phone, I’ve added an ACLU fact sheet below the fold.

Facts on the Senator Kit Bond’s (R-Mo.) FISA Proposal (6/13/2008)

The immunity clause is judicial theater.

It gives the attorney general the power to decide if cases against telecommunications companies will proceed. The AG only has to certify to the FISA court that the company didn’t spy or did so with a permission slip from the president. After the FISC dismisses the case, the court is barred from discussing what that dismissal was based on.

A note from the president is not a legal defense.

Allowing phone companies to avoid litigation by simply presenting a “permission slip” from the president is not court review. This is immunity pure and simple because the companies are NOT being judged on whether they followed the law. A document stating that the president asked them to conduct warrantless wiretapping is not enough justification for violating the basic privacy rights of Americans.

Americans’ rights were violated and they deserve a thorough and transparent judicial process.

What kind of justice gags federal judges and holds vital proceedings behind closed doors? Not only will this kill cases seeking damages, it will kill the cases brought only to determine the very legality of President Bush’s domestic spying program. This clause is not just about protecting the telecoms; it’s about the government blocking any independent review of the constitutionality of its warrantless wiretapping program. Only if there is accountability can we protect ourselves against government and corporate malfeasance – it is the essence of rule of law.

There’s no need for a trade-off.

This so-called “concession” on immunity is being treated as a vital part of the deal. Democrats are in the majority and they need to realize it. Negotiating on this bill with the White House is a fool’s errand and there’s no real reason to concede anything. Democrats need to stand strong against the administration and stand up for the Constitution.

This will set an incredibly dangerous precedent.

Why have privacy laws if the president can write you a note to disobey them? When the government asks companies to break the law in the future, they will have precedent that Congress will cover their tracks.

Proposal legalizes wiretapping without a warrant.

The Bond proposal says there is court review before surveillance starts. However, the court review can be eliminated when there are “exigent circumstances” that include situations where information will be lost if is time taken to apply for an order from the FISA court. By definition, it takes time to apply for a court order. With that soft of a trigger, when wouldn’t there be an exigent circumstance. And that’s the whole point – you don’t get information until you apply for a court order and it is approved.There are true emergencies that are reflected in the original FISA – as drafted this “compromise” will probably go way too far. This is quite possibly the quintessential case of the exception engulfing the rule.

For example, under FISA’s current emergency provision, if the court denies the retroactive application after collection has started, the government is required to stop surveillance immediately. The government is prohibited from ever using or distributing the information if it pertains to a U.S. person, except to protect life or limb. These strict back end protections served as a strong disincentive to fudge the true meaning of emergency. However, you can bet money on the fact these protections won’t be in the final draft – they weren’t even in the House Democrats’ last bill. That version instead allowed them to continue surveillance for 30 days while resubmitting the request for an order, continue surveillance through formal appeals if the order is denied, and ultimately, keep and use all the information at the end of the day even if finally the court finds that no emergency or exigent circumstance existed. This problem is amplified because the orders are for entire programs of surveillance, and not individualized warrants as required by FISA. Even if some form of this Democratic formulation ends up in the bill, the “exigent circumstances” provision blows a huge whole through both the letter and the spirit of the prior court review requirement.

Exclusivity.

It’s already in FISA.