Focus on FISA

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The US House continues to debate FISA.

The US House continues to debate FISA. Source: Chung Chu hide caption

toggle caption Source: Chung Chu

Remember that song, "I'm just a bill... Sitting here on Capitol Hill..."? It's come in handy over the last week or two in trying to follow this back an forth over FISA. The Senate passed an update to the Foreign Intelligence Surveillance Act that would allow the government to wiretap suspected terrorists and grant retroactive immunity to phone companies that helped the government after 9/11. The President backs the bill, and is ready to sign. But, the House refused to grant that retroactive immunity (if FISA is Greek to you, read Ari Shapiro's explainer) and is still in a stalemate with the White House. Why all the fuss over immunity? We'll find out on the show today. The Assistant Attorney General for National Security at the Justice Department will explain the government's position, and take your calls. And we'll hear an argument against offering retroactive immunity to phone companies. Here's the question for you: Do you care what happens with FISA?



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Who originally convinced the telecom companies to overstep the law, when the law required warrants for surveillance?

Sent by Lloyd | 2:14 PM | 3-3-2008

Should the Protect America Act be called the Your World Delivered Act?

Sent by Lloyd | 2:16 PM | 3-3-2008

Do the details of the law matter, if the FBI forgets to pay the phone bill, and gets cut off by the telecom companies anyway?

Sent by Lloyd | 2:18 PM | 3-3-2008

My understanding is that FISA allows these guys to provide their probable cause after the fact, and there is no current backlog in the FISA court. So what's the argument here that they are delayed by the FISA court?

Sent by dmwr | 2:19 PM | 3-3-2008

Let's not forget that the Bush Administration's warrantless wire tapping program was so illegal that the a large parts of the Justice Department leadership was about to prepared to resign en mass.

The only reason that they didn't was that they were waiting for John Ashcroft to recover from the hospital intensive care unit.

The same Intensive Care Unit where people tried to get Ashcroft to sign off on a program when the acting Attorney General refused.

Sent by Neil | 2:21 PM | 3-3-2008

Baloney! I am so tired of this administration breaking the laws of our nation without recourse. Then these people get a spot on the media a try to justify the administration breaking the law. If you break the law you go to jail no matter who it is, even the president.

Sent by Bob E K | 2:23 PM | 3-3-2008

When did it become acceptable for the president to give immunity to corporations at his whim? Congress should not be pushed into approving his illegal acts retroactively. In fact, entering into secret agreements with corporations should be an impeachable act.

Sent by Fred | 2:24 PM | 3-3-2008

Will the President have eves-dropping privileges without any warrants or court review under the new FISA?

Sent by Dan D'Angio | 2:24 PM | 3-3-2008

Isn't the phone company immunity issue solved if the government who wants to conduct wiretaps just gets a search warrant to do so? The government is required to obtain search warrants for any other searches, and generally can obtain search warrants virtually immediately upon a showing of probable cause. Phone companies are immune when they comply with a court search order. So why can't the typical warrant system work for the government to obtain wiretaps when investigating terrorism?

Sent by Diane hock | 2:25 PM | 3-3-2008

What astounds me in this debate is that the administration assumes we should trust them. What has the President done in the last eight years that should convince us they, in fact will not abuse the power we grant them? I am incredulous that those at the White House feel no need to show the American people that it is, in fact, to be trusted. Having a court involved in such proceedings seems on way to so do.

Sent by Christopher Leland | 2:25 PM | 3-3-2008

Anyone who knows anything about our constitution is not only horrified about
this legislation, but also horrified about the performance of the justice department -
As an unwilling customer of AT&T, I have
a right to not have my phone tapped; especially without a warrant. They should be sued and our president should
have been impeached.

Sent by ellen dolores | 2:26 PM | 3-3-2008

What a surprise! This guy now works for Verizon. How convenient for him and them.

Sent by Toni | 2:27 PM | 3-3-2008

Having grown up with the 'red scare' and feeling pity for all those people living under communism and being eaves dropped on in their homes, I find it unbelievable that we are even considering this.

People that say 'I'm not doing anything wrong, so I'm not concerned'; are kidding themselves. All the government would have to say is we think you are and you're guilty until proven innocent, sorry we can't let you see the evidence as it's confidential.

Sent by Lois Waldron | 2:27 PM | 3-3-2008

The existing Foreign Intelligence Surveillance Act allows for telephone company cooperation, including keeping that cooperation secret! It doesn't even have to ask for court permission beforehand. It merely has to file a warrant request AFTER THE ACT. Telcos are protected in this case, because they are acting within the bounds of US law. The dilemma is that the president has been asking the telephone companies for cooperation without EVER getting a warrant. All the Attorney General's office has to do is file for a warrant. The law essentially guarantees that a warrant will be issued.

Absolutely the telephone companies should not be granted immunity for acting in violation of federal law, even when the government is asking them to do it. The government can NOT require someone to violate the law. Qwest Communications is the only telephone company that refused to comply with the previous requests, and there are claims that this was responsible for the downfall of the company. (Those may be 'conspiracy theories', though.)

Sent by Ed H. in Portland, OR | 2:28 PM | 3-3-2008

If the telecom companies get immunity for having broken the law on behalf of the Bush administration, won't that encourage the Bush administration to ask the same companies or other companies to break the law?

Sent by Clement Cherlin | 2:28 PM | 3-3-2008

Lloyd who do you think told them it was ok to break the law? If the President told you to do something that would break a law what would you do?

Sent by Bob E K | 2:29 PM | 3-3-2008

i am a catholic mexican american from arizona. i was sent a letter by the marine corps asking for linguists help as a muslim american. if the government thinks i am something i am not,and want to eavesdrop on me with no constitutional protection, whar can i do. david

Sent by david | 2:29 PM | 3-3-2008

Why didn't the interviewer let listeners know his first guest, K W, is a Bush appointee? Given what the nation has been through with Bush Justice, I think that would be an important part of the bio.

The stiffness of the questions during his interview made me wonder What agreements NPR had to make with him to get him on the show at all? Is there a reason he came and went so quick? Darn Bushies, part of the deal is always keeping the deal secrete.

I realize that he probably needed to get back to "real time intel" Ha! Ha! Not to get too off the subject, but on the matter of keeping the nation defended, the biggest intel failure in the last decade was W blowing off his briefings before 9/11.

The real investigations are going to come when the political appointees at justice are replaced in 2009.

Sent by jfp | 2:29 PM | 3-3-2008

FISA includes a provision to get a retroactive warrant up to 2 weeks after the tapping was done. Why couldn't the government go and get this retroactive warrant. I think something deeper is being hidden from the public.

Sent by Alan Mishell | 2:30 PM | 3-3-2008

I have a real bad feeling about the government being
able to put surveillance on whoever it perceive,s at
the time to be a threat to the country. Real or

Sent by John Slover | 2:30 PM | 3-3-2008

The bottom line is: I do not believe anything this administration says anymore.

Sent by Thomas Swanson | 2:31 PM | 3-3-2008

One of your guests just raised the issue of the need to protect the secrecy of the methods of the agency obtaining the information. But the FISA court is a secure or secret court designed for just this purpose: to protect the secret methods that may be important to our covert operations while still protecting our fourth amendment rights. In addition, the wiretap can be used prior to obtaining the warrant.

Sent by Dennis Hagstrom | 2:34 PM | 3-3-2008

Funny how the department of justice guy, that is your guest is leaving to go to work for Verizion. One of the phone companies in the involved!

Sent by pete | 2:34 PM | 3-3-2008

What a horrible precedent it will be for Congress to pass a law for retroactive immunity. No one should be able to knowingly break the law and then gain retroactive pardon.

Write your congress person today and express you outrage!

Sent by John | 2:34 PM | 3-3-2008

were the telecoms paid for eves-dropping?

Sent by chris mooney | 2:35 PM | 3-3-2008

Welcome to Soviet-era America

Sent by Sheila in West Jordan Utah | 2:36 PM | 3-3-2008

Under sec. are alway apointees.

Sent by Bob E K | 2:37 PM | 3-3-2008

The government already has all the tools it needs to conduct surveillance in accordance with the law. If timing is an issue, the president can authorize wiretaps for up to 72 hours, (15 days with a declaration of war) and seek a warrant after surveillance has begun. This is no impediment to the government's ability to gather information, and it provides all-important protection for innocent civilians, ensuring that the FISA court will provide adequate safeguards against government abuse. If 72 hours is not enough, then it would be perfectly acceptable to ask Congress to establish a more workable deadline. Whether it's 3 days, 3 weeks, or 3 months, at some inviolable deadline the president must seek a warrant from the FISA court.

The White House has ignored FISA and the Constitution's 4th Amendment, and broken the law. It was aided and abetted by the telecom companies, data mining and surveilling millions of Americans phone and email records, and wants to keep the truth hidden about whom it is spying on. J. Edgar Hoover abused such power during the Nixon administration to spy on President Nixon's political enemies. Does anyone really think that any president-Democrat or Republican--would not be tempted to do the same? This is precisely why FISA was enacted in the first place. Our precious liberty is at stake. Please have the courage to stand up for it--for the sake of our children, and for the sake of constitutional democracy in America.

Sent by William J. Santoro | 2:37 PM | 3-3-2008

My memory may be fuzzy on this but as I recall there was a provision in the original FISA (or one of its amendments) that allowed the government to eavesdrop WITHOUT a warrant for some specified period - I think it was 72 hours. This was allowed to address the concern of not blocking surveillance when you are in "hot pursuit". The thinking was that if you wished to continue monitoring a suspect after that period of time you would have to try and get a warrant from the FISA court. Historically the FISA court has been a rubber stamp for government requests turning down only a fraction of a percent of all warrant requests.

The main problem I have with the administration is their desire to basically engage in monitoring activities of whoever, wherever, whenever they want WITHOUT ANY OVERSIGHT whatsoever.

I can only hope that if the Congress caves in to the administration (yet again)that this will eventually be thrown out by the Supreme Court as unconstitutional.

Sent by HeavyG | 2:37 PM | 3-3-2008

The situation today is no different from the illegal spying that went on during the Nixon Administration except that this administration is happy to flaunt their refusal to abide by the law. There were lawsuits at the time against the CIA/FBI/Army Intelligence et. al. which prohibited illegal spying. Illegal spying means spying on everyone, not just so called terrorist. When that is permitted, against the Constitution, the entire basis of law, freedom, privacy is thrown into question.

Sent by Liza | 2:38 PM | 3-3-2008

Your previous guest indicated that we should hold the gov't responsible for legality not the phone co.s. How is that possible when the president is so free with presidential immunity & pardons for his cronies?

Sent by Gerry | 2:39 PM | 3-3-2008

The Justice department guy may have worked for Verizion before he was an appointee.

Sent by Bob E K | 2:40 PM | 3-3-2008

No matter what Congress decides regarding the telecom immunity, couldn't the telecoms still be sued and a court overturn the immunity law saying that it is unconstitutional?

Sent by SD | 2:41 PM | 3-3-2008

what difference will a law make anyway? the phone companies are relatively safe because the "terrorists" caught up in this eavesdropping net will simply disappear into the guantanamo vortex or somewhere like it, never to be charged or even accused of any chargeable offence. This regime has repeatedly showed us that they regard the Constitution as no more consequential than a Yield sign on the freeway. Why is Bush even bothering to try to justify his illegal activities this time?

Sent by Rich Reicher | 2:41 PM | 3-3-2008

I just heard the assistant attorney general give his primary reason for allowing the program in the first place is that "it works." Since when have the ends justified the means in this country? We have been a nation of principles throughout our history, reviling the philosophy of the ends justify the means and others out of The Prince.

Also, what proof do we have that "it works?" The American public has no knowledge of the successes. The only thing our government will tell us is, " hey look, we haven't had another 9/11 since we enacted all these laws, so we must be doing something right." That isn't proof, that's the absence of counterexamples. Just because something catastrophic hasn't happened since does not mean that the laws enacted are the reason why. There are countless other variables involved.

I'd really like to see our government give the public better proof for things other than "see, it isn't as bad now as it was on 9/11."

Sent by John Kennedy | 2:41 PM | 3-3-2008

I want to it actually legal for a US citizen to engage in communications with/or to an enemy state?

I imagine that during the height of the cold war that any calls made to the Soviet Union were monitored....was that legal?

Sent by Robert | 2:43 PM | 3-3-2008

Any bill containing any sort of retroactive immunity is plainly unconstitutional under Article One, Section Nine which reads in part:

"No bill of attainder or ex post facto Law shall be passed."

No ex post facto law shall be passed. Retroactive Immunity is CLEARLY an ex post facto law!

The fact that this is even being considered is an affront.

Sent by Stuart Horner | 2:44 PM | 3-3-2008

What do you think happened to the information that they collected illegally? Where will it go after this administration leaves office?

If this party is back in power in the future could you have someone knocking on your door to cart you off to a good ol' Water boarding session?

Sent by Bob E K | 2:46 PM | 3-3-2008

The Supreme Court is a rubber stamp for this administration, so don't expect protection.

I'm encouraged by the enthusiasm against these wiretaps being expressed by the bloggers here, hopefully you will write, call and confront your representatives. Unfortunately, here in AZ there isn't a prayer to get anything but a rubber stamp.

I do email, but knowing it is not going to be any influence.

Sent by Lois | 2:56 PM | 3-3-2008

It's too bad this administration has squandered any trust the American public has left in it. Remember when GWB told us "Fool you once, shame on me. Fool you twice, shame on you."? I think we're finally realizing there is no one in this adminstration who can be trusted.
Also, have you noticed how the names of the administration's policies and programs do just the opposite, i.e., "Clear skies" initiative, "no child left behind", "American Protection Act." I'm tired of him hiding behind the pretense of protecting the American public so he can break the law. No American citizen would ever get any type of leniency from our criminal system if he/she tried to do what GWB is trying to do. Aren't we all to be be under the same rules and no one above them?

Sent by Paula T | 3:32 PM | 3-3-2008

The government's arguments are fallacious. When asked why they are insisting on telecom immunity when passing the new law (without such immunity)is vital to saving American lives, all they can say is the telecom's immunity is the basis of the government's ability to keep us safe. Nonsense. The Bush government has decided to write their own rules; the Constitution be damned.
To paraphrase, any people that allow their liberties to be abrogated in the name of security deserve neither security nor liberty.

Sent by jkb | 9:29 AM | 3-4-2008

If it was legal, why do they need immunity?

Sent by mo | 2:29 PM | 3-5-2008

Nixon said ... "If the President does it, then it's not a crime"

Bush says ... "If the President does it, it's none of your business"

Are we really going to allow the Congress to allow this to continue!?

Sent by Andy Frederickson | 1:08 PM | 3-8-2008

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