Wednesday, July 9, 2008

Mr. Feingold goes to Washington, and owns it

There is one facet of being a progressive in Wisconsin that is pretty much always good: having Russ Feingold as our representative in the Senate. Today, regardless of the outcome of the FISA vote, I couldn't be more proud of him. Here is a citizen, an elected official with many and varied constituents to whom he must answer, standing up against powerful interests to fight for what is right.

I'll let his statement speak for itself:

Mr. FEINGOLD: Mr. President, I strongly support Senator Dodd’s amendment to strike the immunity provision from this bill, and I want to thank the Senator from Connecticut for his leadership on this issue. Both earlier this year when the Senate first considered FISA legislation and again this time around, he has demonstrated tremendous resolve on this issue, and I have been proud to work with him.

Now, Mr. President, some have tried to suggest that the bill before us will leave it up to the courts to decide whether or not to give retroactive immunity to the companies that allegedly participated in the President’s illegal wiretapping program. Make no mistake – this bill will result in immunity being granted, because it sets up a rigged process with only one possible outcome.

Under the terms of this bill, a federal district court would evaluate whether there is substantial evidence that a company received “a written request or directive … from the Attorney General or the head of an element of the intelligence community … indicating that the activity was authorized by the President and determined to be lawful.”

But, Mr. President, we already know from the report of the Senate Intelligence Committee that was issued last fall that the companies received exactly such a request or directive. That is already public information. So under the terms of this proposal, the court’s decision would be predetermined.

As a practical matter, that means that regardless of how much information the court is permitted to review, what standard of review is employed, how open the proceedings are, and what role the plaintiffs are permitted to play, the court will essentially be required to grant immunity under this bill.

Now, proponents will argue that the plaintiffs in the lawsuits against the companies can participate in briefing to the court. This is true, but they are not allowed access to any classified information. Talk about fighting with both hands tied behind your back. Mr. President, the administration has restricted information about this illegal wiretapping program so much that roughly 70 members of this chamber don’t even have access to the basic facts about what happened. So let’s not pretend that the plaintiffs will be able to participate in any meaningful way in these proceedings — in which Congress has made sure that their claims will be dismissed.

This result is extremely disappointing. It is entirely unnecessary and unjustified, and it will profoundly undermine the rule of law in this country. I cannot comprehend why Congress would take this action in the waning months of an administration that has consistently shown contempt for the rule of law – perhaps most notably in the illegal warrantless wiretapping program it set up in secret.

Mr. President, we hear people argue that telecom companies should not be penalized for allegedly taking part in this illegal program. What you don’t hear is that current law already provides immunity from lawsuits for companies that cooperate with the government’s request for assistance, as long as they receive either a court order or a certification from the Attorney General that no court order is needed and the request meets all statutory requirements. But if requests are not properly documented, FISA instructs the telephone companies to refuse the government’s request, and subjects them to liability if they instead decide to cooperate.

When Congress passed FISA three decades ago, in the wake of the extensive, well-documented wiretapping abuses of the 1960s and 1970s, it decided that, in the future, telephone companies should not simply assume that any government request for assistance to conduct electronic surveillance was appropriate. It was clear that some checks needed to be in place to prevent future abuses of this incredibly intrusive power – the power to listen in on people’s personal conversations.

At the same time, however, Congress did not want to saddle telephone companies with the responsibility of determining whether the government’s request for assistance was legitimate or not.

So Congress devised a system that would take the guesswork out of it completely. Under that system, which is still in place today, the companies’ legal obligations and liability depend entirely on whether the government has presented the company with a court order or a certification stating that certain basic requirements have been met. If the proper documentation is submitted, the company must cooperate with the request and is immune from liability. If the proper documentation has not been submitted, the company must refuse the government’s request, or be subject to possible liability in the courts.

This framework, which has been in place for 30 years, protects companies that comply with legitimate government requests while also protecting the privacy of Americans’ communications from illegitimate snooping.

Granting companies that allegedly cooperated with an illegal program the new form of retroactive immunity that is in this bill undermines the law that has been on the books for decades – a law that was designed to prevent exactly the type of abuses that allegedly occurred here.

Even worse, granting retroactive immunity under these circumstances will undermine any new laws that we pass regarding government surveillance. If we want companies to follow the law in the future, it sends a terrible message, and sets a terrible precedent, to give them a “get out of jail free” card for allegedly ignoring the law in the past.

Mr. President, just last week a key court decision on FISA undercut one of the most popular arguments in support of immunity — that we need to let the companies off the hook because the state secrets privilege prevents them from defending themselves in court. A federal court has now held that the state secrets privilege does not apply to claims brought under FISA. Rather, more specific evidentiary rules in FISA govern. Shouldn’t we at least let these cases proceed to see how this plays out, rather than trying to solve a problem that may not even exist?

And that’s not all. Mr. President, this immunity provision doesn’t just allow telephone companies off the hook. It also will make it that much harder to get to the core issue that I’ve been raising since December 2005, which is that the President broke the law and should be held accountable. When these lawsuits are dismissed, we will be that much further away from an independent judicial review of this illegal program.

On top of all this, we are considering granting immunity when roughly 70 members of the Senate still have not been briefed on the President’s wiretapping program. The vast majority of this body still does not even know what we are being asked to grant immunity for. Frankly, I have a hard time understanding how any Senator can vote against this amendment without this information.

I urge my colleagues to support the amendment to strike the immunity provision from the bill.
We need to hold our elected officials, and anyone who goes along with their illegal programs, accountable. Else how can we claim any moral authority in our own country, let alone the rest of the world? This is not some fringe pet project. This is a test of whether or not we, as United States citizens, really hold our constitution in any sort of regard.

You can still call to urge your own senators to support the immunity-stripping amendment. This handy tool, provided by Blue America, can help.

h/t: Listics

UPDATE: The votes have been counted on the Dodd-Feingold amendment to strip telecom immunity from the new FISA bill - 32 yay, 66 nay. That's 66 senators in serious need of a basic class in civics. And a sound voting out of office.

I don't like that I'm used to being disappointed by politics these days.


3rd Way said...

Barack could learn a thing or two from Russ.

ellie said...

And once again, Herb Kohl cancels out Russ's vote.
I really hate the fact that we've got a rich business man masquerading as a public representitive.
I don't even bother writing him anymore, because he never responds with anything but a form letter that ignores or is unrelated to what I actually wrote him about.
But Sen. Russ, he's a rock star in my book. I'm proud that he actually cares about something.

Dustin Christopher said...

I really do wonder how he does it, sometimes. Fighting the good fight, often the losing fight, is exhausting as hell. Yet if this guy has any cracks, he doesn't show them. I understand he wants to be in the Senate for that fight, which is why he keeps saying he won't run for President. But damnit, man...

Anonymous said...

I am not a liberal but I do agree with Senator Feingold on this, and I agreed with him on the Patriot Act.

Emily said...

DC - I hear you. Much as I would love to see Feingold run for prez, he seems more free to take the stands that he does as a Senator. As they say, the only people you'd really want to be president are the very ones least likely to want to run.

FP - I'm glad to hear this. I always thought issues like the Patriot Act, and now the FISA revisions, should transcend party lines, and it's refreshing to hear that they do.

Skip said...

I think you meant "pwns". ;)

Anonymous said...

Kohl needs to be replaced. When are we going to get somebody to run against him? He has been on the wrong side of the aisle on many key votes. His pragmatic responses (silence) to the Bush administrations crimes makes him as guilty as the republicans.
Out with all of the crooks!

Emily said...

Palmer - forgive me, for I am a n3wb.

Anon & Ellie - I couldn't agree more. While I have no overtly hostile feelings toward Kohl, the man doesn't really seem to do much of anything. When he does, it's to vote nay on stuff like this, so I say oust the bum!

Problem is, he's got enough money and influence to make any bid against him a tough one. Plus there's that whole professional sports team ownership to use as leverage. Clearly, we need to convince someone good to buy, say, the Mallards, and then run against him.

illusory tenant said...

Politics it is.

Methinks that Obama needs Electoral College votes from several key States more than he needs approving commentary from the Daily Kos.

My advice is to avert your eyes away from the Obama campaign for a few months.

The Lost Albatross