The US constitution, particularly in the eyes of digital rights activists, has been dealt with a major blow today.
Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes
The FISA bill with amendments that would grant telecom immunity to ISPs that participated in a warrantless wiretapping program with the current administration has recently passed the senate and now awaits the presidents signature.
There was hope earlier this month that the FISA amendments would collapse in the senate after a court opinion was issued in the Al Haramain v. Bush case. The court said, “FISA preempts the state secrets privilege in connection with electronic surveillance for intelligence purposes and would appear to displace the state secrets privilege for purposes of plaintiffs’ claims.”
While it seemed like a critical win, it apparently wasn’t enough to stop retroactive immunity.
“The Senate gave final approval on Wednesday to a major expansion of the government’s surveillance powers,” Eric Lichtblau of the New York Times writes, “handing President Bush one more victory in a series of hard-fought clashes with Democrats over national security issues.”
From the article:
The measure, approved by a vote of 69 to 28, is the biggest revamping of federal surveillance law in 30 years. It includes a divisive element that Mr. Bush had deemed essential: legal immunity for the phone companies that cooperated in the National Security Agency wiretapping program he approved after the Sept. 11 attacks.
Mr. Bush, appearing in the Rose Garden just after his return from Japan, called the vote “long overdue.” He promised to sign the measure into law quickly, saying it was critical to national security and showed that “even in an election year, we can come together and get important pieces of legislation passed.”
It took almost no time for digital rights activists to condemn what has happened.
“It is an immeasurable tragedy that just after its return from the Fourth of July holiday, the Senate has chosen to pass a bill that betrays the spirit of 1776 by radically expanding the president’s spying powers and granting immunity to the companies that colluded in his illegal surveillance program,” said Senior Staff Attorney Kevin Bankston of the Electronic Frontier Foundation (EFF). “This so-called compromise bill represents a shameful capitulation to the overreaching demands of an imperial president. As Senator Leahy put it in yesterday’s debate, the retroactive immunity provision of the bill upends the scales of justice and makes Congress and the courts handmaidens to the White House’s cover-up of its illegal surveillance program.”
If retroactive immunity wasn’t passed, it would have paved the way for lawsuits against the telecom giants in the United States who spied on American citizens without a warrant. Most argue that the constitution protected US citizens from a massive warrantless wiretapping program that was seen going on since 2001.
From the EFF:
The FISA Amendments Act won passage after several amendments intended to remove or modify the bill’s immunity provision failed to pass. One amendment, offered by Senator Christopher Dodd, would have stripped immunity from the bill altogether. Another, introduced by Senator Jeff Bingaman, would have stayed the pending cases against the telecoms and delayed the implementation of the immunity provision until the Inspectors General of the Department of Justice and other U.S. government intelligence agencies finished their investigation into the spying program, thereby preventing Congress from granting immunity in the dark.
“We thank those senators who courageously opposed telecom immunity and vow to them, and to the American people, that the fight for accountability over the president’s illegal surveillance is not over,” said EFF Senior Staff Attorney Kurt Opsahl. “Even though Congress has failed to protect the privacy of Americans and uphold the rule of law, we will not abandon our defense of liberty. We will fight this unconstitutional grant of immunity in the courtroom and in the Congress, requesting repeal of the immunity in the next session, while seeking justice from the Judiciary. Nor can the lawless officials who approved this massive violation of Americans’ rights rest easy, for we will file a new suit against the government and challenge warrantless wiretapping, past, present and future.”
EFF is representing the plaintiffs in Hepting v. AT&T, a class action lawsuit brought on behalf of millions of AT&T customers whose private domestic communications and communications records were illegally handed over to the National Security Agency (NSA). EFF has been appointed co-coordinating counsel for all 47 of the outstanding lawsuits concerning the government’s warrantless surveillance program.
The EFF wasn’t alone on this. “That sound you hear?” Cory Doctorow of BoingBoing asks, “It’s the Bill of Rights being torn in half. Talk about losing the war on terror. Who needs external forces threatening your way of life when your elected lawmakers are doing such a good job of it?”
“Once again, Congress blinked and succumbed to the president’s fear-mongering. With today’s vote, the government has been given a green light to expand its power to spy on Americans and run roughshod over the Constitution,” said Anthony D. Romero, Executive Director of the American Civil Liberties Union. “This legislation will give the government unfettered and unchecked access to innocent Americans’ international communications without a warrant. This is not only unconstitutional, but absolutely un-American.”
Also from the ACLU press release:
“With one vote, Congress has strengthened the executive branch, weakened the judiciary and rendered itself irrelevant,” said Caroline Fredrickson, Director of the ACLU Washington Legislative Office. “This bill — soon to be law — is a constitutional nightmare. Americans should know that if this legislation is enacted and upheld, what they say on international phone calls or emails is no longer private. The government can listen in without having a specific reason to do so. Our rights as Americans have been curtailed and our privacy can no longer be assumed.”
In advance of the president’s signature, the ACLU announced its plan to challenge the new law in court.
“This fight is not over. We intend to challenge this bill as soon as President Bush signs it into law,” said Jameel Jaffer, Director of the ACLU National Security Project. “The bill allows the warrantless and dragnet surveillance of Americans’ international telephone and email communications. It plainly violates the Fourth Amendment.”
With the EFF and ACLU already planning on suing the government over the warrantless wiretapping program, there is little doubt that the debate will only get more heated.
Final roll call can be found GregLondon of BoingBoing.)
Drew Wilson on Twitter: @icecube85 and Google+.
