The price of freedom is eternal vigilance," Rep Trent Franks (R-AZ) intoned on the floor of the House of Representatives, purporting to invoke the authority of Thomas Jefferson on behalf of the FISA Amendments Act of 2008, which passed the House by a 293–129 vote yesterday.
If we wanted to pick nits, we could note that this is a misquotation, that Jefferson didn't write it, and that the "eternal vigilance" alluded to in that hoary aphorism is most assuredly not the government's unfettered power to eavesdrop on Americans' international communications without a warrant. But forget it, he's rolling. Why spoil such a rare bipartisan lovefest with quibbling over details?
Floor debate on the measure, which expands executive branch surveillance authority and provides retroactive amnesty for telecoms implicated in warrantless NSA wiretapping, consisted largely of mutual congratulation. Minority Whip Roy Blunt (R-MO) lauded the bill as a shining example of "what we can do when we come together," a sentiment echoed by Rep James Langevin (D-RI), who said that the compromise "illustrates what this House can do when it deliberates with care, holds steady against fearmongering, and acts in the best interests of the country and its citizens."
Rep. Mac Thornberry (R-TX) interrupted the good vibes briefly to charge Democratic leaders, who had blocked a vote on a previous version of reforms to the Foreign Intelligence Surveillance Act, with "playing politics with national security." But even he managed to close on a positive note, stressing that "when this House is allowed to vote, we can come together and accomplish things for the country." Perhaps most effusive was Majority Leader Steny Hoyer (D-MD), the chief architect of the deal, who after being introduced as a man with the "wisdom of Solomon and the patience of Job" delivered an encomium to his colleagues and staff so fulsome that I found myself searching in vain for the golden statuette.
Some Democrats nevertheless felt obliged to assure skeptics that the compromise bill did not simply represent a capitulation to White House demands. Intelligence Committee Chair Silvestre Reyes (D-TX), for instance, distinguished the bill from legislation passed in the Senate by noting that "in this bill, Congress does not grant immunity. Congress isn't deciding the question of immunity; the district court will." Which is true: The Senate language granted immunity from lawsuits to any telecom that received a written directive from the attorney general, regardless of whether the company believed its actions to be lawful. The new, improved language instructs a federal court to grant immunity from lawsuits to any telecom that received a written directive from the attorney general, regardless of whether the company believed its actions to be lawful.
Rep. Jane Harman (D-CA) gave a nod to the concerns many in her district had voiced about the bill passed today. "My phones are ringing off the hook and my e-mail accounts are full," said Harman. "By the hundreds and hundreds, my constituents are saying 'don't cave in, don't toss due process out the window, don't compromise on our civil liberties, and all surveillance of Americans should require a warrant.'" She then explained why she planned to ignore them.
The most extended apologia came from House Speaker Nancy Pelosi (D-CA), who urged that the compromise be judged by comparison with the Senate bill, which she characterized as the only realistic alternative. She outlined several ways in which the current legislation is preferable to the Senate's version. First, the compromise bill reasserts that FISA is the "exclusive means" for conducting electronic surveillance, which would require the president to ignore such language twice in order to launch an extralegal surveillance program, rather than only once, as under traditional FISA rules. Second, it preserves prior judicial review of surveillance authorizations, except in "very, very rare" circumstances, such as when the attorney general asserts that waiting for a judge would entail delay. Third, it contains specific provisions barring the use of authorizations targeting parties abroad as a pretext for targeting U.S. persons, presumably to be enforced by a board of psychics. Finally, it provides for an internal investigation of the extent of past surveillance, which Congress will act upon with the same legendary zeal for civil liberties it has displayed over the past seven years.
There were, however, a few sour notes during the proceedings. Rep. Bobby Scott (D-VA) complained that the bill "actually permits the government to perform mass, untargeted surveillance of any and all conversations believed to be coming into and out of the United States, without any individualized finding, and without a requirement that wrongdoing is believed to be involved at all." Rep. Dennis Kucinich (D-OH): "these blanket wiretaps make it impossible to know whose calls are being intercepted by the National Security Agency." Rep. Barbara Lee (D-CA) invoked the specter of past intelligence abuses, such as the wiretapping of Martin Luther King and the FBI's controversial COINTELPRO operation—an argument Rep. Darrell Issa (R-CA) dismissed by conceding the political abuse of surveillance powers in the past but asserting that "those days are behind us." (The latter development coinciding, as chance would have it, with the passage of legislation prohibiting warrantless wiretaps.) Rep. Rush Holt (D-NJ) warned that the compromise legislation would "redefine the Fourth Amendment, and thus the fundamental relationship between the government and its people" by licensing "a fishing expedition approach to intelligence collection."
On the question of immunity, Rep. John Conyers (D-MI) argued that the House was "breaking with a very proud tradition by intervening in a pending court decision in an effort to reach a preordained legal outcome." Rep. Jerrold Nadler blasted the transfer of the issue to federal judges as "a fig leaf granting blanket immunity to the telecom companies for possibly illegal acts, without allowing the courts to consider the facts or the law."
When the votes were tallied, just under half of House Democrats joined Republicans in supporting the bill. A lone Republican, Rep. Tim Johnson (R-IL), voted against it. A spokesman told Ars that Johnson "voted that way, consistent with all of his past votes on the FISA bill, because he's worried about its impact on civil liberties, and he believes that the necessary authority for the intelligence agencies already exists. He's talked to people on the front lines, and the system works very effectively now.
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