Mar 14 2008
Why The Rare Closed Session On FISA?
The extremely rare closed session of Congress last night on FISA is intriguing, if not just for its historic nature:
House Republicans succeeded Thursday in delaying the vote by one day by requesting a rare, late-night closed session of Congress to discuss the bill. It was the first secret session of the House in a quarter century.
The last such session was in 1983, on U.S. support for paramilitary operations in Nicaragua. Only five closed sessions have taken place in the House since 1825.
What was the purpose? To expose to members the disturbing details of the threats we face and how we cannot afford for our partners in security – the nation’s telecoms – should be punished or at the mercy of trial lawyers for acting on lawful (and FISA Court approved) actions. Most NSA and FBI activities are performed under long standing statute and FIS Court warrants. In fact, no person in the US is monitored without a FIS Court warrant. So all the stories about increased scrutiny are not increased risk of people in the US from frivolous monitoring (as the paranoid liberals believe in the conspiracy-minded delusions).
In fact, if the amount of information being gathered is increasing that is a warning sign that activity has ramped up and there are elements in the US that concern the intelligence community AND the FIS Court, which has to authorize search and surveillance warrants. Given this is an important election year and al-Qaeda and their ilk are dying to attack us again (pun intended) then it is not surprising threats and counter offensives are increasing.
One view has it the Dems are finally getting their backbone (more likely unable to face down their base so they leave us exposed to attack):
The plan represents a shift for Democrats, who until now have mostly backed down in the face of White House claims that their efforts would endanger national security. Democrats are betting that their stance appeals to a growing number of voters who say Mr. Bush’s antiterrorism policies have compromised civil liberties. Democrats may also see less of a risk in opposing Mr. Bush on national security because polls show the public is more concerned about the economy than terrorism. “There’s a feeling that we need to stand up for civil liberties,” said one Democratic aide.
Well, that is a nice and naive view. The fact is the public’s attention can be re-oriented quite rapidly if the threat information Congress saw last night was made more public. And if it takes making it more public to keep us safe, then trust me, that is what Bush will do. This was a heads up to dems that this battle will be taken to the people if that is what they want. And that is not what they want right now with their presidential candidates destroying each other and the war in Iraq not going as the promised.
But the democrats have shown an inability to understand the American people and their views on national security. The lack of focus on terrorism has been tied to progress in Iraq and 7 years without another attack on America. If that feeling that we are coming out of the long, dark shadows of 9-11 is removed by an attack or a near attack, watch for a political earth quake that will knock the Dems and left off their feet.
Anyone else concerned about sharing more sensitive intel with the Democrats? Closed session or not I anticipate more leaks in the near future.
Maybe that is Bush’s plan. How better to get word to the people than through leaks from the democrats? If they can get it right, that is.
AJ,
You either don’t understand what the term “retroactive” means or you are deliberately mischaracterizing the issue. The Democrats and Republicans do not disagree about the portions of the proposed FISA bill that address future obligations and immunity for telecomm companies. Just like the original FISA legislation, the new FISA legislation expressly addresses when the telecomm companies are required to cooperate with the government and provides immunity if they cooperate in accordance with the law. For example, like the original FISA legislation, telecomm companies are required by law to cooperate if they receive a certified letter from the U.S. Attorney General advising them the request complies with FISA and compelling them to provide the requested information. Upon receipt of that letter, they are legally required to cooperate and can be dragged into court by the government if they do not (i.e. the idea that telecomm companies may not voluntarily go along with these requests in the future is a red hearing – FISA requires them to do so and gives the government quick and powerful legal remedies to compel them to comply). If they cooperate in response to the receipt of such an AG letter, it provides an absolute defense to any action claiming a violation of FISA. Cooperting in response to such a government request per se complies with FISA even if the AG’s letter turns out to be flawed or wrong. Nobody disagrees with this portion of the bill.
The sole disagreement pertains to “retroactive” immunity. Retroactive immunity pertains solely to past acts, not future acts. So the whole issue is whether or not the telecomm companies previously complied with FISA. So when you say that they should not be punished for lawfully complying with these request, that has not been established. If it had the cases would have been dismissed long ago. The most recent House Democratic proposal is to provide the telecomm companies the ability to produce the documents they relied in electing to cooperate with the government under seal, and if those documents satisfy the requirements of FISA, then all of these cases will be dismissed. The telecomm companies will then have no excuse – they will be able to fully defend themselves against these civil suits.
So AJ, what is more important – our national security or the telecomm companies exposure to liability if it turns out they violated FISA? If the House passes the FISA bill with this new provision, and Bush vetos it as he has threatened to do so, then in your words we will continue to be in grave danger. Please explain to the rest of us why you believe that retroactive immunity for the telecomm companies is more important than our national security. It is apparent that you believe that national secruity should trump everything, so why not in this case?
The truth is the Democrats do not care about national security.
Conman, you and every dem in the house knows that whether or not any telecomm company actually will be found liable is competely inconsequential. The point of the suits is that they can remain in courts for years with tens of millions of dollars in costs for the companies long before any trial is ever reached. With that looming, all telecomm companies will refuse any further cooperation becasue their shareholders will not assume that risk, thus providing a back door way of shutting down the program.
Also, it’s a nice way to guarantee the Trial Lawyers Ass’n, the #1 contributor to house dems, of a massive income stream for the next several years, of which a percentage can be dedicated to various democratic congressmen. This is about legal extortion and graft, and has nothing at all to do with security or with any feigned love of “freedom” by any on the dem side. If there wasn’t a lot of money in it for them personally, they couldn’t care less about this.
conman:
The issue is whether or not a bunch of gold digging trial lawyers are going to use this as an excuse to drive up my phone bill. If the Democrats had a problem with this, they should have said something a long time ago.
In spite of all their hysterical crap to the contrary they have not come up with any proof to back up claims of spying. They just keep making outrageous claims while they do their best to dig up dirt. In the future, companies will know better than to trust these guys. They will know that whatever assurances of immunity they are hearing the time will come when someone will try to find a way to exploit the situation.
I hope the Democrats are proud of themselves. They promised that if they were elected to Congress they would cut the deficit and bring down the price of gas. Thus far all they have done is harass the Bush administration and make up stuff about the government spying on us.
So conman, which is more important? The Democrats making a mountain of a mole hill to give trial lawyers a big pay day, or keeping their word to these companies?
And if there is an attack should the Democrats assume responsibility for not stopping it? After all, I keep hearing about how we should be more like Europe and the Europeans do this stuff every day. That is how they catch the terrorists before they kill people.
WWS & Terrye,
You people are so naive it is scary. These telecomm companies spend million and millions of dollars on lawyer fees every year prosecuting and defending cases, not to mention the millions of dollars they spend on lawyers for negotiating contracts, etc. The civil lawsuits that were filed, which have now been consolidated into a single proceeding before a California Federal District Court, are a drop in the bucket compared to their overall annual legal fees. If you actually looked at their FCC filings and other financial data you would realize how laughable it is to suggest that this consolidated court proceeding will bankrupt these companies or result in higher rates. Also, the legal proceedings will not result in tens of millions of dollars in legal fees, especially if the proposed House Democratic compromise is passed and signed by the President. If passed, it will be very simple to determine if they complied – they can then produce the AG’s certified letter and all of the caes will be summarily dismissed or we’ll find out that they violated FISA.
Terrye, what do you mean when you ask will the Democrats keep their word to these companies? Are you suggesting that the Democrats told them they didn’t have to comply with FISA? That’s ridiculous. The original FISA bill, which was drafted in consultation with the telecomm companies in 1978, specifically defines when they are required to cooperate with the government. Absent the government providing them the necessary documentation, which is specifically spelled out in the FISA statute, they are expressly prohibited from doing so. If they violated these requirements, why do you want to let them off the hook? If we aren’t going to enforce FISA, why not scrap the whole thing and pass legislation that allows the telecomm companies to give any information to the government whenever they feel like it?
But, let’s assume for sake of argument that you all are right. Without the retroactive immunity, these poor billion dollar companies will suffer millions of dollars of legal expenses, our phone rates will get higher and the trial attorneys will get a little bit richer. You still have not answered my straightforward question – if the House Democrats compromise passes, do you think that Bush should veto it? In other words, do you think that we should jeopardize our national security to avoid these companies from these monetary losses?
WWS,
There is one other thing you said that I need to respond to because it shows once again that you don’t understand the real issues. You said that if the litigation is allowed to presume “all telecomm companies will refuse any further cooperation becasue their shareholders will not assume that risk, thus providing a back door way of shutting down the program.” Read the FISA legislation – it has nothing to do with their voluntarily cooperating. FISA provides the federal government a mechanism (one of which is the AG’s letter) to demand their cooperation and hold them in contempt if they refused to cooperate. In fact, they could be subject to criminal penalities if they refused to comply with a request that compleis with FISA.
Use your commonsense. Do you honestly believe that FISA allows the telecomm companies to voluntarily decide if they want to comply? That would be utterly stupid. If you actually read and understood FISA, you would realize how ridiculous your statement sounds.
Conman you are wrong even from your first response post.
This is not just about retroactive immunity.
It is also about the clause in the bill that relates to the “exclusivity provision” which is basically an attempt for the legislative branch to get the President to agree that their law trumps the constitutional requirements for the President to do intelligence work under Article II.
Conyers also presented this lame concept in a memo this week and it was rebutted that the telco’s could not show documentation even to the Federal Judge involved in this case since he does not have the proper clearance to see the documents.
Also Conyers wants a 9/11 style commission which will just be another fishing trip to attempt to expose sources and methods used.
There have already been more than enough independent reviews of this subject and reports made to congress certifying the results of those investigations.
Merlin,
I recognize there are other differences between the House bill passed today and the Senate bill. But the issue of disagreement between Bush and the Democrats has been all about retroactive immunity. That is what Bush and the Republicans cite everytime they talk about FISA. That is the concern AJ’s post cites as well. I was pointing out how ridiculous Bush’s claim that the telecomm companies will be financially ruined if you actually understand FISA and the lawsuits.
If Bush wants to make the issue the exclusivity provision (i.e. the President really doesn’t have to comply with FISA if he decides a different program is better) – great. I’d love to see that public debate play out. I can’t wait to see how Bush explains to the 70% of Americans who disapprove of him why his Article II commander-in-chief powers during anytime we are in threat of a possible terrorist attack (basically all the time) gives him the authority to ignore Congress and the Judiciary branch and unilaterally decide what surveillence programs are constitutional.
You watch – when Bush threatens to veto if the Senate adopts the House bill he will cite the retroactive immunity provision as the reason. He won’t say a word about the exclusivity provision.