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The Truth About the Debate Over the FISA Law

President Bush and Congressional Republicans are falsely claiming that the expiration of a temporary provision of the Foreign Intelligence Surveillance Act (FISA) is endangering America and compromising our national security.  

'Some congressional leaders claim that this will not affect our security. They are wrong. Because Congress failed to act, it will be harder for our government to keep you safe from terrorist attack.'
- President Bush [2/16/08]

But as Michael McConnell, Director of National Intelligence, explained last week the issue isn't our national security or the intelligence community's ability to continue electronic surveillance, it is about providing telephone companies retroactive immunity.

 'It's true that some of the authorities would carry over to the period they were established for one year. That would put us into the August, September time frame. However, that's not the real issue. The issue is liability protection for the private sector. We can't do this mission without their help.'
- Michael McConnell, [2/15/08]

Experts & Editorials Highlight the Truth about the FISA Law Debate


Timothy Lee, Cato Institute
'The issue isn't whether Congress should block cooperation between telecom companies and the government when the National Security Agency wants to engage in eavesdropping on American soil. The debate is about whether that cooperation should be subject to judicial oversight, as the law has required for the last 30 years, or whether instead the telecom companies can simply ignore the law when the president asks them to.' [2/13/08]

Ben Wittes, Brookings Institution
'[The] sky is not falling at all.' [2/16/08]

Gregory Nojeim, Center for Democracy and Technology
'[The Senate bill] inadequately protects communications to which Americans are a party and by providing immunity to telecom that participated in illegal surveillance, it signals that they could do so again in the future.' [2/14/08]


Canton Repository (Ohio) Editorial
'Stand for privacy,' February 19, 2008

'Congress last week took two wise steps to protect the privacy of Americans...
'Congress last week allowed the temporary provision to expire. The House also has refused to act on a Senate measure to grant retroactive immunity to telecommunications companies that assisted the government and may have violated the law in the process.
'Bush rejected an offer of a temporary extension while FISA is modernized. He said the lapse will make it harder to monitor possible terrorist activity and will put the nation at great risk. Democrats in Congress say FISA alone is adequate, and the numbers seem to bear that out. Of the 18,000-plus wiretap warrants requested of the FISA court since 2004, only four were rejected. In many cases, the court also has granted retroactive warrants.

'The House should stand its ground.'
Times Daily (Alabama) Editorial
'Listening to you,' February 16, 2008

'...While the ability to thwart terrorist plans and attacks is vital to the nation's safety, protecting citizens from unreasonable search is important too. The Fourth Amendment to the Constitution guarantees a right to privacy and protection from unreasonable searches. We cannot sacrifice one of the cornerstones of our freedom in exchange for a modicum of safety, because if we do, not only will we have lost a cherished freedom, we will no longer be safe - even from our own government.
'The FISA courts, which are secret, were established to allow quick action to gain wiretapped information. The president and his Republican allies should accept the limitations of the Constitution and move on.'
Denver Post (Colorado)  Editorial
'House stands firm on FISA,' February 16, 2008

'The U.S. House this past week refused to take up a measure that would provide a lengthy extension for broad new spy powers that Congress never should have given the president in the first place...

'The revision was billed as a necessary update to FISA, but was actually another move by the administration to expand presidential power...

'First, if the president was so convinced the FISA revisions had to remain in place to protect the country, why did he threaten to veto a short extension of them?

'Simply put, he wanted to push Congress into passing a long-term measure by saying time is of the essence and terrorists are plotting. Cue the spooky music...

'The debate is really about doing an end run on the FISA court. The revisions encompassed in the Protect America Act would shift wiretapping approval in many instances from the judiciary to the executive branch -- more specifically to the attorney general and the director of national intelligence...
'That is what immunity for telecommunications companies would do. If you squelch the 40-some pending civil lawsuits against telecoms about the surveillance program, you eliminate the public's ability to learn more about the spying.'

Bangor Daily News (Maine) Editorial
'Spying Changes On Hold,' February 16, 2008 

'...the Protect America Act... allows existing surveillance to continue until August. New wiretapping could be approved through the Foreign Intelligence Surveillance Act. In 1978, FISA set up a special court to consider requests for such warrants. Obtaining FISA court approval does not appear to be too difficult. The court has rejected, in part, only one application since 2005...

'Changes in communications technology require changes in surveillance techniques and their oversight. However, broad permission to eavesdrop on communications that pass through United States-based equipment goes too far. So does blanket immunity for telecommunications companies before state regulators can even determine what the companies did and whether they broke the law.'

Star Bulletin (Hawaii) Editorial
'Compromise needed on surveillance bill,' February 18, 2008

'Despite President Bush's frenzied warnings that by failing to give him the law he wants, Congress places the country at peril, there is no need to rush the measure through, particularly since the rights of American citizens are at issue...

'The House is correct in pointing to the need to balance civil liberties while providing the government enough leeway to conduct legitimate surveillance and in resisting fear-mongering.

'The authorization, which expired Saturday, allows current warrantless surveillance to continue until August and new targets to be added quickly, if need be. Moreover, longstanding law remains in place to require compliance with legal warrants.

'As evidence that no imminent crisis is at hand, Bush departed Friday on a week's tour of Africa as scheduled. When the House returns from its week-long recess, cooler heads should seek compromise.'