Congress once again is discussing a compromise on a long-stalled rewrite of the Foreign Intelligence Surveillance Act with the idea of getting something passed before its August recess.
The White House assuredly will play the national security card again as it seeks retroactive immunity for telecoms that gave in to demands for information under the president’s warrantless wiretapping program.
We hope Congress stands firm as it did in February. Frame it any way you want, but the issue is accountability.
Proponents are making a last-ditch effort to squelch some 40 lawsuits that could bear witness to the breadth of Bush administration spying that took place outside the auspices of FISA.
Congress must not capitulate on this key point.
It’s important to keep in mind how this country came to have FISA. Enacted in 1978, FISA was a response to widespread government abuse of wiretaps in the name of national security. The act set rules for government spying on foreign powers or their agents.
A secret FISA court hears government eavesdropping requests and almost without exception approves them. The administration can even wiretap without a FISA warrant and get one later.
After the 9/11 attacks, President Bush decided to do an end run around the FISA court, shifting approval for wiretaps from the judiciary to the executive branch. That program was secret until 2005, when The New York Times exposed its existence.
Last year, the administration employed fear mongering and convinced Congress to legitimize the program through the Protect America Act, a temporary revision that expired this year.
The battle now is over a permanent extension, the centerpiece of which would be lawsuit immunity for the telecommunication companies that cooperated with the warrantless spying program.
Administration officials say they’re very concerned about getting cooperation from communications companies unless the companies have immunity.
We find it hard to believe that these telecoms would refuse to comply with a FISA court order. FISA has been in operation for 30 years, and that seems not to have been a problem in the past.
It’s also important to keep in mind that the federal courts where these telecom lawsuits are being heard can — and have — dismissed some actions on the grounds that they could endanger national security.
So it’s not as if there are no protections at work.
The last time immunity was debated in Congress, House Democrats held firm, saying they thought the administration’s modifications would amount to a suspension of the Constitution. We hope they have the same courage of their convictions this time around.
