ACLU scoffs at reported 'unconstitutional' wiretap deal
Congress may be nearing a detente in its nearly yearlong standoff over what to do about phone companies that let government spooks warrantlessly listen in on phone calls crossing their wires, but civil libertarians are worried Democrats may be backing down from demands that the telecoms be held accountable.
Since last summer, Congress has been deadlocked over whether to grant legal immunity to these phone and internet providers as part of a long-term update to the Foreign Intelligence Surveillance Act. An immunity provision was shoved through the Senate late last year, but House Democrats have remained steadfast in opposing such a provision.
Now, though, a deal seems near; House Intelligence Committee Chairman Silvestre Reyes, an influential Democratic voice in the debate, told CongressDaily that he is "fine" with language from Senate Republicans that leaves the door open to retroactive legal immunity for companies that participated in President Bush's warrantless wiretapping program. The American Civil Liberties Union slammed the proposed compromise.
“Congress should remember that the majority of Americans are against unwarranted and warrantless surveillance,” said Caroline Fredrickson, director of the ACLU Washington Legislative Office. “They are against slamming the courthouse doors and letting the phone companies off the hook for selling out their privacy. If that’s where most Americans stand, who exactly is Congress representing?”
Reyes was open to language offered by Sen. Kit Bond (R-MO), which would put the immunity question before the secret FISA court instead of granting a blanket immunity declaration from Congress, saying it was a "middle ground" approach that would allow Congress to "get on with it."
A Reyes aide told CongressDaily that he still preferred language from House Majority Leader Steny Hoyer that would have federal district courts decide whether the telecoms be spared from defending themselves in some 40 pending civil lawsuits alleging they violated customers privacy.
The ACLU called Reyes's openness disappointing and cited previous statements where the Texas congressman saw immunity as unnecessary to update FISA.
“Bond’s immunity provision, at its heart, is saying it’s okay to break the law if the president tells you it’s okay,” said Michelle Richardson, ACLU Legislative Counsel. “It would allow telecom companies to walk into a secret court, present a piece of paper – legally binding or not – and walk out without consequences. What kind of justice takes place entirely behind closed doors, is hinged entirely on a note from the president and revolves around the interpretation of the law and not the law itself? Where is our system of checks and balances in this scenario?”
The ACLU says any compromise on FISA like the ones that have been discussed would almost certainly be unconstitutional, and it urged Congress to stay strong against pressure from the Bush administration.
The FISA update fight has been raging in Congress since last summer, when a temporary measure was pushed through in August. The debate heated up again in February as Democrats refused to grant immunity and allowed the temporary update to expire, knowing the surveillance it authorized would keep going until this August and the country would not be put in danger.
Congress likely will pass some kind of FISA update before the end of July, when they will leave for another monthlong recess and then transfer into campaign mode.
“For a body that stood so firm against pressure from the Senate and White House earlier this year, it would be a shame to see it fold now in the absence of any real threat or deadline,” said Fredrickson. “Being so close to electing a new administration, handing this president a parting gift of expansive spying abilities and legal immunity for his friends would be a massive mistake and would set an unforgivable precedent.”