House Passes FISA Reform, No Telecom Immunity, 213-197

For the first time in a long time, the Democrats in the House have stood firm on a major issue, in the face of strong Administration and pro-Administration Senate Democratic pressure (principally Rockefeller/Feinstein and their allies). Today, with no Republican votes (big surprise), the House passed, 213-197, a bill which more than adequately permits necessary antiterrorist surveillance, and which rebuffs the false and deceptive arguments for unbridled power to spy on Americans advocated by the Administration, and dutifully handed to them in the Cheney/Rockefeller Senate Bill. Greenwald, who has been on this story since its inception, has an excellent rundown.

As Greenwald points out, the House may yet capitulate, but this is an unexpected display of real backbone, and should be celebrated. He also explains why it doesn't really matter that the Senate is unlikely to pass this bill, or that, even if they did, Bush has already said he would veto it. We don't really need any bill, or if we do, only a single minor reform,* so if the "Protect America Act" just dies, it's a far better outcome than passing the bill Cheney foisted on the Senate Intelligence Committee.

The House bill does not include telecom immunity, but it does contain a provision protecting telecoms' rights to present evidence, ex parte and in camera, to overcome any bar to defending themselves against charges of illegal conduct in surveillance due to claims by the government of the so-called 'State Secrets' privilege. The courts will be empowered to review the evidence and decide whther immunity is appropriate. The Electronic Frontier Foundation and ACLU are both satisfied with this compromise. And, most importantly, litigation on the extent of illegal surveillance which occurred in recent years, going back potentially even before the Bush administration, can contine. This litigation is the only way Americans can ever find out to what extent the law was in fact broken by their own government, since the State Secrets privilege will protect the government from disclosing the facts.

To those who argue, as I have heard argued in good faith, that we should be glad someone's doing all this spying on Americans, and that catching the bad guys, regardless of legality, is more important than the law, I say, no, fear does not trump the law and constitution. These are what America is all about; if you want to change the law and constitution, propose it, get it legitimately passed, and those of us who disagree will have to live with it. But as long as the Fourth Amendment, the Telecommunications Act of 1934, and FISA, as amended, are the law, those who violate them should face the consequences, and the courts should have the power to uncover the truth. This is what is meant by the rule of law, and anything less is the way dirty little dictatorships operate, not the way America operates. Or used to, until recently.

-- *The actual reform arguably needed is simply to allow warrantless eavesdropping on foreign-to-foreign communications that electronically pass through the US, something not clearly provided for in the original FISA but aruably now needed due to changes in technology. No one opposes this reform, and if it were offered as a stand-alone bill, it would pass immediately. It isn't clear that this surveillance is even prohibited under existing law; at worst the FISA court would have to approve them, in the absence of this reform. This was the law for thirty years, so it can't be so very impractical, especially since the FISA court, as is well known, has never turned down a warrant, and exists only to process (and essentially rubber-stamp), such requests; but at least it's some kind of oversight. The "Protect America Act" which has been in effect for six months, and which the Administration wants to make permanent (and even worse, in fact), goes far beyond this, and although it is pretty clearly unconstitutional, in the present climate there is no prospect of the courts so finding anytime soon.