The US Senate is poised to pass the FISA bill at the end of this week, following its passage by Congress last week. It sets new electronic surveillance rules that shield telecommunications companies from lawsuits arising from the government’s warrantless wiretapping after 9/11. Civil Libertarians remain outraged by the bill. Michael Ratner, president of the Center for Constitutional Rights believes that “warrant-less wiretapping is not necessary for us to be safe.”
ZAA NKWETA, PRESENTER: Marking the beginning to the end of a month-long standoff between Democrats and Republicans, last week, Congress approved the Foreign Intelligence Surveillance Act Amendment of 2008, setting new electronic surveillance rules that shield telecom companies from lawsuits arising from the government’s warrantless eavesdropping after 9/11. The compromise bill passed with a 293 to 129 vote. The Senate is expected to pass the bill in the next few days. With me via broadband is Michael Ratner, president of the Center for Constitutional Rights in New York. So, Michael, Congress passed this bill last week, and it’s widely expected that next week the Senate is going to approve the amendment of this bill. What, in your opinion, has been lost and won here?
MICHAEL RATNER, PRESIDENT, CENTER FOR CONSTITUTIONAL RIGHTS: To tell you what was lost here is our constitutional rights were lost here. This bill really confirms a lot of the presidential power that the president illegally claimed during the so-called post-9/11 period. Really, three big things to me: it allows for immunity of the telecoms that cooperated in the illegal, warrantless wiretapping program. And when I say “wiretapping,” I mean including all our phone conversations, as well as all our Internet email. So it gives them immunity. Yeah, they have to go to court, but the immunity is based on the president simply saying, “I’m getting a letter that, yes, these telecoms were asked to participate in the program, and we told them it was legal.” So that means that we’re never really going to know about the five or six years in which this illegal program was run, we’re not going to get the underlying memos, and the government is still going to be allowed to use all the information. So that immunity provision is actually huge. The second provision is it extends the time in which you don’t have to use a warrant at all to one week that, on a so-called emergency basis, the president can authorize warrantless wiretapping of even American citizens for a week. And then he goes to the court, and he continues the wiretapping during the entire court proceedings, the secret court proceedings, which could take months, even the appeal. And even if he loses, the president is still allowed to use all that information. The third, which is really, to me, very important, is if I make a phone call, for example, to Europe or to Saudi Arabia to speak to one of my clients’ families from Guantanamo, the government has always asserted that if they have a right, which they do under this legislation and other legislation, to wiretap overseas, that they can wiretap and look at my email of any American citizen who makes a call overseas without a warrant.
NKWETA: How much do you believe this was politicking? Especially, you know, there’s a school of thought out there that says that Speaker of the House Nancy Pelosi wanted to get this out of the way before the general election, because she didn’t want the Democrats to be sort of crucified on their weak stance on national security. Do you believe that that had a huge impact into the ruling of this compromise bill?
RATNER: It was certainly true that Pelosi and a number of House Democrats were against the immunity provision and were fighting for a tougher bill up until a couple of months ago. And all of a sudden you saw Steny Hoyer and others in the Congress just cave in on the bill completely, and the excuse that’s being put forward is that the Democrats can’t afford in this election to appear weak on national security. What they should have done in this case is come forward with the argument [that] warrantless wiretapping and electronic surveillance is not necessary for us to be safe. The idea that you can go to a secret court and get a warrant is not going to make us less safe; it’s simply going to put a neutral magistrate in between the president’s unbridled authority at this point and the citizens of the US.
NKWETA: And do you consider the upcoming Senate ruling a fait accompli?
RATNER: Well, you know, you wouldn’t have, normally, except that we’ve had a flip-flop by both McCain and Obama. McCain said he was completely opposed to warrantless wiretapping, flip-flopped on it. Obama said that he would filibuster any bill—any bill that contained immunity for the telecoms. And now he came out with a statement that he will not filibuster and he will go for the bill. So you’re not going to have a bunch of Senate Democrats, senators, going against Obama, because that would weaken him as a presidential candidate.