FISA Overhauled And Telecom Companies Recieve Immunity

President Bush signed an important bill Thursday overhauling rules about government wiretapping and grants immunity to the telecommunications companies that helped U.S. intelligence. Bush called it "landmark legislation that is vital to the security of our people."

It deals with the warrantless wiretapping issue in regards to the cross border communications which the Democrats objected to. All the federal appellate courts that had dealt with the issue with the exception a recent ruling that created an extra stir in this story, such as the Foreign Intelligence Surveillance Court of Review believed the FISA law did not do away with the authority of the president to monitor foreign threats to national security without judicial oversight. The Court of Review ruled a few years ago the FISA "court did not provide any constitutional basis for its action — we think there is none — and misconstrued the main statutory provision on which it relied" when it came to added restrictions on the administration's foreign-intelligence investigations. The decision also said that "the FISA court may well have exceeded [its] constitutional bounds." The FISA Court of Review cited the 14th Circuit's 1980 decision in a case of surveillance of a Vietnamese spy David Truong, "The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information." The court added, "We take it for granted that the President does have that authority."

Former Presidents did exactly this, including Clinton ordering a warrantless home break-in for CIA spy Aldrich Ames. "The Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes, and that the President may, as has been done, delegate this authority to the Attorney General. It is important to understand that the rules and methodology for criminal searches are inconsistent with the collection of foreign intelligence and would unduly frustrate the president in carrying out his foreign intelligence responsibilities," Deputy Attorney General Jamie Gorelick testified before the Senate Intelligence Committee on July 14, 1994. Jimmy Carter signed the FISA bill and his Attorney General Griffin Bell testifying in favor of FISA told Congress that while the measure doesn't explicitly acknowledge the "inherent power of the president to conduct electronic surveillance," it "does not take away the power of the president under the Constitution."

UCLA law professor Eugene Volokh writes that when it comes to the government monitoring someone outside the United States from a telecom switch in the U.S. and listening in on the person's calls and reading their e-mails without obtaining a FISA warrant first "the Fourth Amendment may still require reasonableness in this setting when one or more people on the call of e-mail are inside the U.S. or are United States citizens, but there is no statutory warrant requirement."

Whether the program was constitutional or not, extremist at the ACLU trued dragging telecom companies through a pile of lawsuits because after 9-11 telecoms cooperated with the NSA’s warrantless surveillance of suspected terrorist communications crossing U.S. borders. There was no reason they should be sued for potentially billions of dollars in liability. This bill importantly gave the telecom companies immunity and defined the guidelines and regulations when it comes to wiretapping for national security purposes.


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