E-mail from Senator Feinstein (D-Ca) re FISA

[JDPriestly]

I received the following e-mail written last week (June 25, 2008) from Senator Feinstein regarding FISA. I am pretty pleased to know that she agrees with my concerns regarding telecom immunity.

Also, I understand that our country needs the capacity to intercept the electronic communications of known terrorists. I am not satisfied with the rather vague definition of terrorist that our law now provides, but, aside from that, I can understand that given the new technologies, the security interests of Americans may require new law.

My e-mail pointed out that, under the doctrine of separation of powers, Congress does not have the constitutional authority to remove pending cases from the jurisdiction of the courts or to deprive parties to an existing law suit of their right to due process in the courts -- the right to appear and to be heard. I am pretty pleased with Senator Feinstein's answer (or more likely the answer of her assistants).

---
I write this in response to your communication indicating your concerns on the Foreign Intelligence Surveillance Act of 1978 (FISA) now before the Senate. This bill has passed the House of Representatives.

This legislation contains multiple sections, including one that deals specifically with liability for telecommunications companies. However, the primary intent to this new bill is to modernize our intelligence gathering capacity. The technology and communications industries have seen vast changes in the past thirty years since FISA was first written in 1978. This has changed the way surveillance is conducted, and the original law cannot adequately address these procedures. This is precisely why FISA needs to be modernized.

It is important to understand the consequences if the Senate does not pass this bill. We would either have to extend the temporary surveillance bill passed last August - which should not happen - or allow surveillance on certain foreign targets to expire which would lay the Nation bare and decrease our ability to identify and protect against terrorist threats. Neither of these options is acceptable.

I strongly believe that this bill is substantially better than the version the Senate passed in February 2008, which I opposed. It is also a major improvement from the Protect America Act that passed in August 2007, which had few privacy protections and was never intended to be a permanent solution. This bill:

-- Includes provisions I authored that make clear that FISA is the exclusive (or only) authority for conducting surveillance inside the United States. This is crucial as it requires that all future Presidents must act only within the law. FISA would be the only legal authority for conducting surveillance on Americans for intelligence purposes, and only legislation that specifically provides wiretapping authority in the future would be an exception to FISA.

-- Requires the government to obtain a warrant before surveillance can begin. This applies to all Americans - anywhere in the world. The Protect America Act allowed surveillance for up to six months before getting a warrant. This bill ends all warrantless surveillance of U.S. persons. In this sense it is precedent setting.

-- Bans reverse targeting, which was a concern under the Protect America Act. Reverse targeting would allow the government to collect the contents of telephone calls and e-mails of an American by conducting surveillance on the people with whom they communicate. This is prohibited in this bill.

-- Requires that the government implement procedures approved by the Court for minimization. If an American's communication is incidentally caught up in electronic surveillance while the Government is targeting someone else, minimization protects that person's private information. This has been a hallmark of FISA for 30 years, but court review and approval of minimization procedures was not included in the Protect America Act. It is here.

-- Requires the government to receive a warrant to conduct surveillance on an American outside of the United States. This means that Americans' privacy rights are protected everywhere around the world. A court warrant has never been required outside the United States before; this would be the strongest protection ever.

I understand your concern regarding Title II of this bill, which creates a process that may result in immunity for telecommunications companies that are alleged to have provided assistance to the Government. I agree that this is not the best approach to the current legal challenges to these companies. Earlier this year, I authored an amendment that would require court review of the legality of these companies' alleged actions. Under my proposal, cases against the companies would only be dismissed if the Court found that they acted legally. I continue to believe this is the right approach. I have joined as a co-sponsor on an amendment which accomplishes this, and will vote for it when it is able to come to the floor.

There may be amendments offered to the FISA legislation to strip or modify the telecom immunity provisions. Know that I will support any that I believe improve the current bill.

Bottom line: this FISA legislation, while not perfect, would bring intelligence activities back under U.S. law. It provides significant improvement in oversight and accountability of our intelligence collection programs while still giving the intelligence community the tools needed to keep our Nation safe. And, it provides the strongest privacy protections to U.S. persons in history.

In conclusion, I have served on the Intelligence Committee for seven years and I take the responsibility extremely seriously. If there is no bill, our Nation goes bare in mid-August, unless the Protect America Act, which does not offer, even remotely, the privacy protections for U.S. persons that are included in this bill, is extended. Additionally, the President - any President - cannot enact a program outside of this law in the future.

I hope this helps you understand my concerns. Attached to this letter, you will find my statement on the Senate floor from June 25, 2008.

Statement of Senator Dianne Feinstein

FISA Amendments Act of 2008

June 25, 2008

Please keep writing the senators who do not agree with us on the telecom immunity provision, Title II of the bill. Based on this e-mail, I believe that Senator Feinstein will support a bill without it and leave it up to the courts to decide whether the plaintiffs' claims are actionable or should be dismissed. That's all I ask.

[Captain Hilts]

1. Hey JDP -

Hop in!

[JDPriestly]

2. Great picture.

I read so many books by Eleanor Roosevelt when I was young. Unfortunately, I think some of them are out of print. She was wonderful. Talk about a co-president. She helped give Americans courage in dark moments.

[Eyes_wide_ open]

3. Thanks for sharing this

Although I'm loathe to see round 742 in the FISA debate start, I do appreciate this piece of information. This issue has been particularly troublesome to me and this explanation illuminates the "why" of it a bit more clearly than much that has been said thus far.

So no matter how much grief you get about posting this, know you helped at least one person to have a better understanding of the matter.

[woolldog]

4. k

[jumptheshadow]

5. Look at Feinstein's connections

She's beholden to lobbyists,and particularly to defense contractors.

>>Most of these political officials who feed off of Washington year after year become appendages of it and vigorous defenders of nothing other than the Beltway system. They are drained of all belief, conviction and passion. And in Feinstein's case, it is particularly easy to understand why this is so. Her current husband, Richard Blum, is an extremely rich defense contractor whose companies have endless relationships with the work Feinstein does in the Senate. It is entirely unsurprising that Feinstein's affection is reserved for officials in the intelligence and defense communities because those are her social peers, the individuals with whom her husband interacts professionally and socially and with whom she most identifies.

More than anything else, Feinstein worships at the altar of the Beltway power system and its most revered members. Conversely, she has contempt for the liberal base which elects her and the constituents she represents. She long ago ceased being driven by the political values which serve as props for her campaigns, if she was ever driven by them. And that is the story of so many of the Beltway Democrats.<<

http://www.salon.com/opinion/greenwald/2007/09/23/feinstein/

[mloutre]

6. more on this FISA bill from someone who really ought to know

Morton Halperin is the executive director of the Open Society Policy Center. While he was on the staff of the National Security Council, the Nixon administration illegally wiretapped his home phone for almost two years -- in fact, he was No. 8 on Nixon's infamous "enemies list" because he opposed the Vietnam war and Nixon's abuses of executive power. So Halperin really knows what he's talking about when it comes to warrantless wiretapping and issues of national security. And this what he had to say about FISA in an op-ed piece in today's New York Times:

LISTENING TO COMPROMISE


Two years ago, I stated my belief that the Bush administration’s warrantless wiretapping program and disregard for domestic and international law poses a direct challenge to our constitutional order, and “constitutes a far greater threat than the lawlessness of Richard Nixon.”

{snip}

Because I rejected the Nixon administration’s use of national security as a pretext for broad assertions of unchecked executive power, I became engaged with the Foreign Intelligence Surveillance Act when it was proposed in the early 1970s. And because I reject the Bush administration’s equally extreme assertions of executive power at the expense of civil liberties, I have been engaged in trying to improve the current legislation.

The compromise legislation that will come to the Senate floor this week is not the legislation that I would have liked to see, but I disagree with those who suggest that senators are giving in by backing this bill. The fact is that the alternative to Congress passing this bill is Congress enacting far worse legislation that the Senate had already passed by a filibuster-proof margin, and which a majority of House members were on record as supporting.

What’s more, this bill provides important safeguards for civil liberties. It includes effective mechanisms for oversight of the new surveillance authorities by the FISA court, the House and Senate Intelligence Committees and now the Judiciary Committees. It mandates reports by inspectors general of the Justice Department, the Pentagon and intelligence agencies that will provide the committees with the information they need to conduct this oversight. (The reports by the inspectors general will also provide accountability for the potential unlawful misconduct that occurred during the Bush administration.) Finally, the bill for the first time requires FISA court warrants for surveillance of Americans overseas.

As someone whose civil liberties were violated by the government, I understand this legislation isn’t perfect. But I also believe — and here I am speaking only for myself — that it represents our best chance to protect both our national security and our civil liberties. For that reason, it has my personal support.

[kentuck]

7. "Additionally, the President - any President - cannot enact a program outside of this law..."

Didn't seem to stop him before, did it? Face the truth. There is no leadership in the US Senate. They would sell us all down the river.