The FISA Catch-22

The FISA Catch-22

Tonight Congress meets in a secret session to try to work out a compromise between the Senate version of legislation on FISA that would give telecommunication companies immunity from prosecution for their cooperation with the government despite the lack of authorizing warrants, and a House version that strips that retroactive immunity from the bill.

President Bush insists that such immunity is necessary to ensure that telecommunications companies cooperate with the government in future terrorist investigations. According to the President: “Companies that may have helped us save lives should be thanked for their patriotic service, not subjected to billion-dollar lawsuits that will make them less willing to help in the future,” (“A Transcript of Bush Remarks on FISA,”The Washington Post, March 13, 2008.

This argument would carry more weight if the same Bush Administration were willing to reveal more about what citizens they encouraged telecommunications companies to spy on and why. But according to the White House, to do so would risk compromising “state secrets.” The American public, according to President Bush, should accept the White House's assurance that no one's privacy was unduly breached, no one's civil liberties trampled upon, and that every bit of spying was done purely in the interest of protecting Americans from terrorist attacks. The telecommunication companies who facilitated the spying are “patriots” -- any citizens who object to having their phone calls or email reviewed without a warrant are by implication unpatriotic and obstructionist, selfishly rendering other citizens less safe by their insistence that terrorist investigations be pursued under a system of judicial review.

The American public may be forgiven for questioning the White House's credibility on these assertions given its questionable record of finding “terrorist” threats from Saddam Hussein's alleged weapons of mass destruction to Jose Padilla's alleged plot to detonate a “dirty bomb” on U.S. Soil to the cases of mistaken identity that have rendered innocent men for torture and imprisonment in countries like Syria and Afghanistan.

In any case, whether or not these “warrantless” wiretaps were justified or not, is something we will never know until a full investigation is made, and that can only happen through an open government investigation or through class-action lawsuits. The catch-22 inherent in the legislation that the Bush Adminstration wants, according to Judiciary Committee Chair John Conyers puts Congress in an impossible situation. According to Conyers, Congress “can't immunize against that which we do not know what it is we are granting immunity for,” (“Immunity Issue at Center of FISA Fight,” Morning Edition, NPR, March 13, 2008).

One of Americans' most fundamental Constitutional rights is the right to remain free from unreasonable search and seizure. Surely those Americans who fear that their Constitutional rights have been violated in this way deserve their day in court to determine at the very least whether or not their phone calls and electronic communications were monitored and why.

The Bush Administration has also failed to provide compelling evidence why the current FISA law, which allows warrants to be issued retroactively, cannot answer its needs to investigate and prevent terrorist plots. President Bush calls the current FISA structure “ a cumbersome court approval process that would make it harder to collect intelligence on foreign terrorists,” but he provides no hard evidence that the FISA law has impeded terrorist investigations in any way, and journalistic investigations of the actions of the courts implementing the FISA law suggest that very few requests for warrants are turned down.

So why the rush to secrecy and to retroactive immunity? Are we really protecting the American public from the threat of terrorism? Or are we protecting an administration that has repeatedly bungled terrorist investigations and sought to aggrandize executive power and to refuse any kind of oversight by the other two branches of government? Do we really believe that immunity for telecommunications companies has more to do with national security than with the potential for embarrassing revelations about just how much spying our government has engaged in with regard to innocent, law-abiding citizens who have nothing to do with terrorism whatsoever? We'll never know the answer unless Congress sticks to its guns and demands accountability from an administration that considers itself answerable to no one.