Let’s not forget why we are even talking about this issue. At some point in 2001, the Bush Administration began a massive program of warrantless spying. New reports suggest that the Administration began its warrantless spying even before 9/11. The Administration never told Congress what it was doing. In clear violation of the FISA law and in complete disdain for the 4th Amendment, it also never told the FISA court what it was doing.
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There is still a great deal we don’t know about this secret spying, but what we do know is alarming. Numerous reports indicate that it covered not only international communications, but also Americans’ purely local calls with their friends, neighbors, and loved ones. A lawsuit in California has produced evidence that at the government’s request, AT&T installed a supercomputer in a San Francisco facility that copied every communication by its customers, and turned them over to the National Security Agency.
Think about that. The National Security Agency of the Bush Administration may have been intercepting the phone calls and e-mails of millions of ordinary Americans for years.
The surveillance was so flagrantly illegal that even lawyers in the Administration tried to fight it. Nearly 30 Justice Department employees threatened to resign over it. The head of the Office of Legal Counsel, Jack Goldsmith, testified that it was “the biggest legal mess I had ever encountered.”
Mr. Goldsmith himself acknowledged that “top officials in the administration dealt with FISA the way they dealt with other laws they didn’t like: they blew through them in secret based on flimsy legal opinions that they guarded closely so no one could question the legal basis of the operations.”
Think about that as well. The President’s own head of the Office of Legal Counsel states that the Administration’s policy has been to “blow through” laws it doesn’t like, in secret, so that its actions cannot be challenged. The Bush White House has repeatedly failed to understand that our government is a government of laws, and not of men.
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Here’s another fact that no one should lose sight of. From the very beginning, telecommunications companies have always had immunity under FISA when they comply with lawful surveillance requests. In fact, the Senate Judiciary Committee worked closely with AT&T, and the company played a major role in drafting FISA’s immunity provisions in the 1970s.
To be completely protected from any liability whatever, all a company needs under FISA is a court order or an appropriate certification from the Attorney General. That’s it. Just get one of those two documents, and you’re off the hook.
So in this debate, let’s be clear that we’re not talking about protecting companies that complied with lawful surveillance requests. We’re talking about protecting companies that complied with surveillance requests that they knew were illegal.
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Some of the telecoms might have been doing what they thought was good for the country. Some of them might simply have been doing what they thought would preserve their lucrative government contracts. We simply don’t know. But either way, it is not the role of telecommunications companies to decide which laws to follow and which to ignore. FISA is a law that was carefully developed over many years to give the Executive Branch the flexibility it needs, while protecting the rights of Americans. It is the companies’ legal duty—and their patriotic duty—to follow that law.
Nothing could be more dangerous for Americans’ privacy and liberty than to weaken that law, which is precisely what retroactive immunity is meant to do. Yesterday’s newspaper disclosed that in December of 2000, the National Security Agency sent the Bush Administration a report asserting that the Agency must become a “powerful, permanent presence” on America’s communications network. A “powerful, permanent presence” on America’s communications network. Under this Administration, that is exactly what the NSA has become. If the phone companies simply do the NSA’s bidding in violation of the law, they create a world in which Americans can never feel confident that their e-mails and phone calls aren’t being tapped by the government.
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The President has said that American lives will be sacrificed if Congress does not change FISA. But he has also said that he will veto any FISA bill that does not grant retro-active immunity. No immunity, no FISA bill. So if we take the President at his word, he's willing to let Americans die to protect the phone companies.
So the telecoms were entrapped by the government into breaking the law, huh?
And they knew it was against the law? (
And now the telecoms should be immune from prosecution because the government instigated it?
Every John, pimp and drug dealer caught in a sting will be demanding that deal.