Immunity, Not Security, At Stake in FISA Debate

In today’s New York Times, Eric Lichblau has an article going about how the current telecom debate is not focused on any security related matters, but instead hinges on granting retroactive immunity to telecoms that helped the Bush administration spy on Americans.

The warnings from President Bush and his senior aides have grown more urgent over the last few weeks, now that Congress has let a temporary wiretapping law expire. But there is little sign of anxiety among many intelligence and phone industry officials.

At the Pentagon and the military’s Central Command, senior officials gave no indication of any heightened concern about the lapsing of the law. In Congress, staff members with access to updated briefings said they had not been given any specific information about lost intelligence that might endanger national security. And in the telecommunications industry, executives said it was largely business as usual.

Indeed, for all the heated rhetoric in Washington about the government’s wiretapping powers, the debate over what a new surveillance law should look like has little to do with the present or the future and almost everything to do with the past.

At its crux, the debate is about whether Mr. Bush can give retroactive legal protection to telephone carriers that cooperated in the program of wiretapping without warrants he authorized weeks after the Sept. 11, 2001, attacks, a program that critics charge was illegal. [Emphasis added]

As long as intelligence professionals are not telling Congress that our ability to conduct electronic surveillance is not being impaired, I don’t see how the Bush administration will be able to pressure Congress into caving on immunity legislation. When the debate is solely hung up on immunity, it’s not likely to get Democrats to feel the need to pass legislation appeasing Bush and move on. Yesterday Republicans again refused to pass an extension of the Protect America AT&T Act, so the onus for new legislation is clearly not urgent, as the only additive to the law would be retroactive immunity. All other surveillance can continue for up to a year and new surveillance can begin up to 72 hours before a court order is required.

This system – FISA – has worked since 1978 with no known problems. It will continue to work tomorrow and the next day.

Lichtblau’s article makes the story in Congress Daily look more like a trial balloon. If the security apparatus isn’t driving a call for new legislation, I don’t see the Democrats in the House – who have been very strong in their opposition to the SSCI bill and retroactive immunity – caving to allow votes on bad legislation. Time will tell, but for now it’s important that Democrats in Congress listen to what the intelligence community is not saying to them about the state of our surveillance operations. All is well following the sunset of the Protect America AT&T Act and things continue to work under FISA. The need is for Congress to work on legislation that upholds the Constitution, ensures oversight of surveillance operations, and does not grant retroactive immunity to the big telecoms that helped the Bush administration illegally spy on Americans.

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